In a week of devastating disclosures about government surveillance, here’s one ray of light.
The ACLU of Massachusetts reports the Massachusetts Supreme Judicial Court‘s verdict in Commonwealth v. Rousseau. In separate trials, John Rousseau and Michael Dreslinski were each convicted of four charges relating to a spree of burning and vandalizing properties. As part of their case, law enforcement had obtained a warrant to place a GPS tracker on Dreslinski’s truck for 15 days, which was then renewed twice. Two issues came up: whether GPS tracking needed a warrant anyway, and whether Rousseau had standing to challenge the warrant as he had no property interest in Dreslinski’s car.
The court discussed, with reference to the Jones case decided in January 2013 at the US Supreme Court and their own prior 2009 decision in Commonwealth v. Connolly, two competing theories of why such a warrant might be invalid. It could be argued that in tracking the movements of the truck, the government was exercising “control and use” over it, and that therefore the GPS tracking was a form of seizure. Alternatively, the defendants could have been deemed to have a reasonable expectation of privacy that their “comings and goings will not be continuously and contemporaneously monitored except through physical surveillance, which requires a far greater investment of police resources and generates far less information than GPS monitoring”, and that therefore the defendants’ car was effectively being searched. This is a fascinating and contradictory problem in resolving Fourth Amendment concerns.
For a solution as to Rousseau, who held no property interest in the truck, the court then turned to article XIV of the Massachusetts state constitution:
Article XIV. Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.
They then determined that the language of article XIV gave Rousseau a “reasonable expectation of privacy” in the truck, and that:
the fact that police monitored Rousseau over a thirty-day period is sufficient to establish that he had standing to challenge the validity of the warrant.
As it turns out, though Rousseau was indeed determined to have standing to challenge the GPS warrant, the warrant was ultimately upheld, as were both Rousseau’s and Dreslinski’s convictions. But in order for the GPS surveillance to be found constitutional, the court ruled that it was necessary to obtain “judicial oversight” and make “a showing of probable cause.” This is not at all a given for police practice, as US v. Jones, where there was no warrant obtained, made clear.
This is powerful stuff. Imagine, in relation to their language on standing, and in the light of the release of top secret documents this week proving the existence of mass unconstitutional surveillance, what would happen if the federal courts agreed with Massachusetts here that the fact of surveillance was enough to prove standing? We can hope for litigation that would actually make it past that issue, and be ruled on on the merits. And more importantly, now the court has signaled to law enforcement across Massachusetts that GPS surveillance without a warrant will not pass constitutional muster.
Like I said. It’s a ray of light. Congratulations to the ACLU of Massachusetts for their hard work on the case.