Supreme Court Rules GPS Tracking Requires Warrant

The U.S. Supreme Court just announced its decision in U.S. v. Jones, ruling unanimously that the government must obtain a warrant before affixing a GPS tracking device to a suspect’s vehicle. While all the justices agreed that the Fourth Amendment required police to obtain a warrant they did not agree on the rationale.  Five joined Justice Scalia’s majority opinion that the Fourth Amendment applied to private property such as a vehicle.  Four agreed with Justice Alito that this warrantless search violated the defendant’s reasonable expectation of privacy. According to the article just posted by The Wall Street Journal

Justice Alito warned that a property-based approach was too narrow to guard against the proliferating threats to personal privacy modern technology posed. Justice Scalia stressed, however, that the majority wasn’t repudiating the broader test articulated in 1967, but rather that it was unnecessary to reach it because installation of the tracker was sufficient by itself to trigger the Fourth Amendment.

Important Fourth Amendment Case

This November the U.S. Supreme Court will hear oral arguments in United States v. Jones, “the most important Fourth Amendment case in a decade” according to New York Times reporter Adam Liptak.  The issue is whether police must obtain a warrant to attach a GPS unit to criminal suspect’s vehicle and then track its movements for weeks. Last year the D.C. Circuit Court of Appeals ruled unanimously in Jones that such GPS tracking required a warrant.  A split exists because the Seventh and Ninth Circuits have upheld the use of evidence obtained from GPS tracking.  The NY Times article reports that many lower courts addressing this issue have cited George Orwell’s 1984, which I describe in the Introduction to my Internet Law Casebook as “describing a world in which governments control all information and omnipresent Big Brother monitors everyone through two-way electronic devices.” My Casebook mentions it because 1984–and Orwell’s similarly-dystopian Animal Farm–were two of the books deleted from its users Kindles after the holder of their copyright claimed was not licensed to sell the books.

George Orwell would be proud of his prescience.

Privacy of One’s Wallet

The People v Long case cited in today’s earlier Stop & Identify post was superseded by a later appellate decision (People v Long, 189 Cal. App. 3d 377 (1987)), but its treatment of the constitutional propriety of requiring Long to produce identification was not changed.  Police conducting a premises check of a bar spotted what appeared to be a minor female with Long.  He told police his name but denied having identification on him. “Officer Luca noticed a wallet-sized bulge in his rear pants pocket. He then asked defendant for written identification. Defendant said he had none. The officer then directed defendant to look through his wallet, believing it must have contained identification.”  When defendant turned away from Officer Luca to look in his wallet Luca “turned him back so he could see what he was doing” and observed “several open, clear, plastic baggies or bindles he recognized as common methamphetamine packaging.”  The trial court denied Long’s motion to suppress the evidence seized from his wallet.  The appellate court reviewed “the constitutional propriety of the police officer’s directive to defendant, a lawfully detained person, that he produce written identification”–an issue on which there was then no direct federal or California decision.  The court “recognize[d] there exists a reasonable expectation of privacy in the contents of one’s wallet, including identifying information.”  In the context of a Terry stop that reasonable expectation of privacy is balanced by legitimate state interests:

The voluntary display of identification is a routine experience for most of us. Measured against the obvious and substantial need for police recording the identity of a person suspected of having committed a crime, we find reasonable the minimal intrusion involved here in requiring the production of identification. In addition, defendant’s oral statement of his name was suspect when he insisted he had no identification while appearing to carry a wallet and, in addition, he seemed intoxicated.

The court upheld the constitutionality of the police requiring Long to produce his identification.  Note again that this issue arose during a Terry stop, absent which the police have no right to temporarily detain and question anyone.

More Stop & Identify

A reader tried posting this comment without success, so I’m pasting in here.

To underscore your third conclusion, “if police cannot require a person to identify himself, they do not have the authority to seek, as an end in itself, whether the person is carrying identification,” under Brown v. Texas (1979), if there is no suspicion of a citizen committing misconduct then the police cannot require a person for identification. To quote the court:

“This appeal presents the question whether appellant was validly convicted for refusing to comply with a policeman’s demand that he identify himself pursuant to a provision of the Texas Penal Code which makes it a crime to refuse such identification on request…. The application of Tex. Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct.[3] Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is Reversed.”

In regard to Californian law, if a Terry stop occurs, officers may require written ID if a detainee has it in his possession; refusal to furnish it reduces the authority of the officer and is considered obstruction. To quote the District Attorney of Almeda County (, “Based on Long and the cases we cited with it, it is still the law in California that a detainee’s refusal to disclose his name or furnish written ID if he has it constitutes a violation of Penal Code § 148(a)(1) which, like the Nevada statute, makes it unlawful to willfully delay or obstruct an officer in the performance of his duties.”

In People v. Long (186 Cal. App. 3d 216; 230 Cal. Rptr. 483; 1986), the court found, “At the outset, we recognize that defendant manifested and possessed a reasonable expectation of privacy in the contents of his wallet contained in his pocket … Nevertheless, it was reasonable for the officer to require that defendant produce identification from his wallet. … The voluntary display of identification is a routine experience for most of us. Measured against the substantial need for securing the identity of a person suspected of having committed a crime, we find reasonable the minimal intrusion involved here in requiring the production of identification. We do not imply that an officer may always insist on written identification from a detained individual who has orally identified himself. Much depends on the circumstances. In the instant case defendant’s oral statement of his name was suspect when he insisted that he had no identification on him while he appeared to be carrying a wallet and, in addition, appeared to be intoxicated.”

“May require written ID if a detainee has it in his possession” is still premised on police conducting a lawful Terry stop and does not itself require that a person carry identification.  (Thanks, JU)

Stop and Identify

Yesterday a question arose in class:  are U.S. citizens required to carry personal identification?  I said no, we are not.  The post 9/11 debate about whether the U.S. should require personal identity cards raised the specter of a totalitarian Big Brother state for too many people–thankfully.  One student, however, was adamant that California requires them, so I researched it. The bottom line–failing to carry identification on one’s person is not, by itself, a criminal offense in the United States.

The closest Supreme Court case is Hiibel v Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S 177 (2004).  Larry Hiibel was charged under state law for “willfully resisting, delaying, or obstructing a public officer in discharging or attempting to discharge any legal duty of his office.”  The officer’s legal duty was defined by Nevada’s “stop and identify” statute, NRS §171.123:

1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime . . .

3. T he officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.

Hiibel argued that as applied to his case §171.123 violated the Fourth and Fifth Amendments of the United States Constitution.  The Nevada trial, intermediate appellate, and Supreme courts all disagreed and Hiibel appealed to the U.S. Supreme Court.

The Court cited various state stop and identify statutes and summarized their characteristics:

Stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. The statutes vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. A few States model their statutes on the Uniform Arrest Act, a model code that permits an officer to stop a person reasonably suspected of committing a crime and “demand of him his name, address, business abroad and whither he is going.”  Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 344 (1942). Other statutes are based on the text proposed by the American Law Institute as part of the Institute’s Model Penal Code . . . [which] provides that a person who is loitering “under circumstances which justify suspicion that he may be engaged or about to engage in crime commits a violation if he refuses the request of a peace officer that he identify himself and give a reasonably credible account of the lawfulness of his conduct and purposes.”  In some States, a suspect’s refusal to identify himself is a misdemeanor offense or civil violation; in others, it is a factor to be considered in whether the suspect has violated loitering laws. In other States, a suspect may decline to identify himself without penalty.

Note that while the statutes require an individual to state his name during an investigatory stop–which (as the Court describes elsewhere in Hiibel) is premised on “specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity”–none require the individual to produce written identification.

The Court held that as applied to Hiibel’s case the stop and identify statute did not violate the Fourth or Fifth Amendments.  The Court’s decision in Terry v Ohio “recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further.”  A Terry stop must be “justified at its inception, and . . . reasonably related in scope to the circumstances which justified the interference in the first place.”  The Court said “our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops” and “serves important government interests:” whether the person stopped has outstanding warrants, “a record of violence or mental disorder.” The Court also held that requiring Hiibel to identify himself does not violate his Fifth Amendment privilege against self-incrimination because “refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it “would furnish a link in the chain of evidence needed to prosecute” him. As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business.”

Hiibel obviously does not directly address whether one is required to carry identification, but it supports that conclusion.

  • Police only have the authority to stop and identify an individual if there are “specific, objective facts establishing reasonable suspicion to believe [he is] involved in criminal activity”–in other words, if there are grounds to conduct a Terry stop
  • Absent such specific objective facts police cannot require that a person identify himself
  • If police cannot require a person to identify himself, they do not have the authority to seek, as an end in itself, whether the person is carrying identification.

Despite this, researching the issue showed that many people online share my student’s adamant belief, about California and other states.  Some believe it because, they say, police have told them they can be arrested for not carrying identification outside the context of a Terry stop.  I think they are wrong on the law, but I’ve spend enough time on this topic today.  If anyone has a citation to a statute or a case that proves me wrong, let me know.  I’ll defer to another day research on which (if any) stop and identify statutes require an individual to produce written identification during a Terry stop.

Critique of Herring

How to Ensure Police Database Accuracy is an essay from security expert Bruce Schneier about the Supreme Court’s recent decision in Herring v. U.S. limiting application of the exclusionary rule.  Police found illegal drugs and a gun when they searched Herring’s residence after arresting him on a warrant they later learned had been withdrawn.  The Supreme Court allowed the search to stand because the search was not a result of police misconduct but of a database error. Schneier argues that the Supreme Court got it wrong: excluding evidence is “the only way to ensure police database accuracy.”