Supreme Court grows more wary of police use of new technology
WASHINGTON – Terrence Byrd was arrested in Pennsylvania four years ago with body armor and 49 bricks of heroin in the trunk of a rental car he wasn’t authorized to drive.
Ryan Collins was picked up in 2013 in Virginia with a stolen motorcycle that twice had sped away from police.
Both contested their arrests all the way to the Supreme Court, which last month ruled overwhelmingly in their favor for the same reason: Their privacy was breached. In Byrd’s case, the justices ruled 9-0 that his absence from the rental policy did not give police the right to search the car. Collins, they reasoned by an 8-1 margin, was protected because police invaded his girlfriend’s private property without a warrant.
The dual decisions represent the latest examples of a trend at the high court — dominated by conservatives — to defend individuals’ right to privacy even when they are violating the law.
The justices’ vigorous defense of Fourth Amendment protections against search and seizure has been fueled in part by their skepticism of government power, as well as the rapid development of increasingly intrusive technology.
Thus it was that in 2012 they ruled unanimously that police could not attach a GPS device to a suspect’s car without a warrant. Two years later, they again ruled unanimously that police need a warrant to search the contents of a suspect’s cellphone.
And in the coming weeks, the justices will decide whether police can track the past locations of suspects’ cellphones for weeks or months in order to connect them to crimes under investigation. From the sound of oral arguments last November, the answer appeared to be no.
“They’re no longer disagreeing on whether there’s a right to privacy,” says Marc Rotenberg, president of the Electronic Privacy Information Center, which seeks to protect privacy and civil liberties in the information age. “You’re finding a high level of agreement on both wings of the court.”
The ruling for the motorcycle thief was written by Justice Sonia Sotomayor, the court’s leading defender of privacy rights. While the court has ruled that vehicles can be searched without a warrant if a crime is suspected — in part because they can be used to escape — “the scope of the automobile exception extends no further than the automobile itself,” she said.
She wrote the most expansive opinion in the GPS case, warning about the potential reach of technology.
“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations,” she said.
The ruling in favor of the heroin-toting motorist was written by Justice Anthony Kennedy, who said he had a “reasonable expectation of privacy” despite not being listed on the rental agreement.
The justices have come a long way since the 1980s, when “the government virtually always won,” Supreme Court and appellate litigator Andrew Pincus says. “There was a war on drugs, lots of concern about crime and law enforcement.”
Today’s court is wary of big government and concerned that “the advent of technology and the things the government can do as a result of it don’t override the privacy that we’ve taken for granted,” he says.
The next big test will come when the justices rule this month in Carpenter v. United States. In that case, police used data obtained without a warrant from wireless carriers to reveal where Timothy Carpenter — convicted in a series of armed robberies in Michigan — had been over a 127-day period.