Antoine Jones was the target of a cocaine trafficking investigation when federal agents stuck an electronic tracking device on his Jeep Cherokee, secretly following the vehicle’s every move for 24 hours a day.
The device, a self-contained, battery-operated global positioning system, gave FBI agents travel and timeline information that prosecutors said helped link Jones to a crew of drug dealers operating out of a warehouse and apartments in suburban Maryland.
The data became an important part of the government’s case in the U.S. District Court for the District of Columbia, where Jones was indicted in October 2005 on charges that included conspiracy to distribute more than five kilograms of cocaine. The former owner of a Washington nightclub and the alleged leader of the drug ring, Jones was convicted last year and sentenced to life in prison.
But now that conviction is under attack in the U.S. Court of Appeals for the D.C. Circuit, where civil libertarians and privacy rights advocates have teamed up with Jones’ lawyers to challenge what the attorneys say is unlawful government surveillance. On Nov. 17, the appeals court is expected to hear argument in the case.
At issue is whether FBI agents were required to get a warrant to install the GPS device, which recorded the position of Jones’ vehicle every 10 seconds for a month. As GPS becomes an increasingly cost-effective law enforcement tool, state and federal courts, grappling with privacy rights in public spaces, have divided over whether a warrant is necessary to secretly monitor movement of a vehicle.
In the Jones case, investigators got a warrant, but it expired before the device was installed. Prosecutors argue in court papers, however, that the warrant was unnecessary because the device only disclosed information that investigators could have obtained through visual surveillance. The prosecutors said the GPS did not track Jones himself, only the vehicle he was driving.
The Jones case has attracted the attention of the Washington-based Electronic Frontier Foundation and the American Civil Liberties Union, which filed a joint amicus brief in the D.C. Circuit saying that a warrant should be required for GPS tracking.
“The big picture is if the court allows warrantless GPS, it will take us one giant step closer to a surveillance society and that much further away from a free society,” said Bryan Cave partner Daniel Prywes, pro bono counsel for the ACLU in the Jones case. “Warrantless GPS would allow police anywhere to track a person’s movement over an extended period of time without judicial supervision. And that’s scary.”
In 2004, the FBI began investigating Jones and his alleged leadership of a Washington-area drug ring that investigators said had ties to Mexico and Texas. Government agents set up a fixed camera on a pole close to Jones’ club, Levels, in northeast Washington. They also tapped telephones and worked with informants. According to one FBI agent’s affidavit, Jones ran an “extremely close-knit” operation in which he minimized contact with co-conspirators.
In September 2005, Judge Paul Friedman of the federal district court in Washington signed a warrant that authorized the FBI to install a GPS device on the Jeep that Jones regularly drove.
The GPS device yielded 3,106 pages of data showing the movement of the Jeep at 10-second intervals. Prosecutors said the data put Jones at a Fort Washington, Md., house where FBI agents in October 2005 seized 97 kilograms of cocaine and nearly $850,000 in cash. Jones was arrested the day of the raid.
Before trial, Jones’ lawyer, A. Eduardo Balarezo, a solo practitioner in Washington, argued that the GPS evidence was not admissible because agents failed to install the device within the 10-day window set out in the warrant.
Prosecutors said in court papers that, although there was a technical violation of Friedman’s order, a warrant was not required in the first place. The presiding judge, Ellen Segal Huvelle, ruled that evidence obtained while the Jeep was on public roads was admissible.
In briefs opposing Jones’ appeal, prosecutors said there is a diminished expectation of privacy on public roads. Assistant U.S. Attorney Peter Smith, who will argue the Jones case, said in court briefs that there is “no practical difference” between the GPS device and an officer who takes notes about observations. “[GPS] monitoring provides less information than human surveillance can provide,” Smith said. Justice Department and U.S. attorney’s office officials declined to comment about the case.
Jones’ appellate lawyer, Stephen Leckar, said the police would need hundreds, if not thousands, of officers to replicate the data that a GPS device produces. “GPS gives a bureaucrat an unprecedented ability to acquire a staggering amount of information on somebody with no effort,” said Leckar, special counsel to Washington’s Shainis & Peltzman. “I think most people would believe they have a right to drive in anonymity and that, if they are going to be tracked relentlessly, there will be somebody in a black robe saying, ‘Do you have probable cause to do this?’”
Few courts across the country have dealt with the constitutionality of GPS surveillance. The highest state courts in Massachusetts and New York ruled in recent months that the use of a GPS device on a car requires a warrant, but an appellate court in Wisconsin concluded otherwise.
In a 4-3 ruling in May, New York’s highest court granted a defendant a new trial in a burglary prosecution because evidence from a GPS device should not have been allowed at trial. Writing for the majority, Chief Judge Jonathan Lippman of the New York Court of Appeals said the GPS evidence should have been suppressed. GPS, the judge said, is not a “mere enhancement of human sensory capacity.”
Lippman said police invariably will record trips that are “indisputably” private, such as “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.” A coalition of groups, including the National Association of Criminal Defense lawyers, the Council on American-Islamic Relations and the Union for Reform Judaism, filed an amicus in that case.
Prosecutors in the Jones case point to a decision in February 2007, in which the U.S. Court of Appeals for the 7th Circuit unanimously ruled in favor of the government in a drug prosecution. The three-judge panel said GPS surveillance doesn’t require a warrant. “Technological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive,” Judge Richard Posner wrote. But Posner said the case did not present alarm because there is no indication that law enforcement officers have set up “mass surveillance of vehicular movements.”
D.C. Circuit judges Douglas Ginsburg, Thomas Griffith and David Tatel are scheduled to hear the Jones case.
Washington criminal defense lawyer Bernard Grimm of Cozen O’Connor, who is not involved in the Jones case, said investigators appear confused about their responsibilities. “If a warrant is not required,” Grimm said, “why did they get a warrant in the first place?”