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Golden Gate University Law Review

Authors

Tyler R. Smith

Abstract

Global Positioning Systems (GPS) provide law enforcement with a powerful tool to covertly investigate criminal networks. These networks, however, are often themselves technologically sophisticatedand thus able to elude police surveillance. GPS monitoring has drawn substantial criticism recently as police, in many jurisdictions, may utilize the technology without a search warrant; the issue has boiled down to whether the Fourth Amendment requires a search warrant in the first place.

This Comment argues that the Supreme Court should establish a new rule, “Reasonable Suspicion Plus,” that would require police to state in a sworn declaration particularized reasoning for use of a GPS device, but that would not require them to obtain a search warrant. The benefits of the proposed rule would be threefold: (1) temporal and spatial limitations would assure that GPS technology is utilized responsibly; (2) the declaration would serve as a procedural obstacle requiring police to show good cause for using the device; and (3) when the declaration is registered with the district attorney’s office it would provide a tangible record, facilitating judicial review if a defendant later contests the legitimacy of the operation.

Part I examines the concept of “a reasonable expectation of privacy” in the context of how the police use new technologies to monitor suspects’ movements. Part II dissects the shortcomings of those decisions but also points to valid considerations and concerns that arose in those cases. Part III proposes a model rule that can serve as a guidepost for appropriate use of GPS surveillance: “Reasonable Suspicion Plus.” There are valid concerns on both sides of the argument, and the rule that this Comment proposes would address those concerns, while maintaining constitutionality and deference to Supreme Court precedent.

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