Supreme Court grows more wary of po­lice use of new tech­nol­ogy

USA TODAY Weekend Extra - - NEWS - Richard Wolf

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.

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