When splitting hairs isn't: warrant not necessarily required for tracking GPS device

In an earlier blog post, I stated that the Supreme Court held that a warrant is required to put a GPS device on someone's car.  I was wrong.  Turns out, however, I was in the company of many people talking about the decision.

What the highest court in the nation actually said is that putting a GPS device on someone's car and tracking it constitutes a search.  In the constitutional sense, the word "search" has special meaning.  Many times, a search will require a warrant.  Other times, it won't.

On the GPS issue, Supreme Court lawyer Tom Goldstein wrote on SCOTUSBlog:

It holds that installing a GPS device is a search that may or may not require a warrant, and it strongly suggests that long-term monitoring of that device will require a warrant.  But the Court does not hold that installing the device requires a warrant, and in fact the tea leaves suggest it would reject that conclusion if the device is only going to be monitored for a day or two.

For example, to search someone's home when there is no probable cause to believe that there is a felony going on inside -- that requires a search warrant.  If, however, police enter a home to arrest someone, they have a right to search the immediate area due to an exception to the warrant requirement.  It is still a search, so the police either have to have a warrant, or have to make sure that their actions fall into some exception to the warrant requirement.

It can seem somewhat complex to non-lawyers.  However, there is a real teachable moment here for ordinary citizens wanting to know their rights.

Let's say the police stop you on the street.  They ask you a few questions, and then they pat you down for weapons.

That is a search.  That means you are protected by the Fourth Amendment.

It does not, however, require a warrant.

In fact, a police officer can pat you down to search for weapons if he has a reasonable suspicion that you have weapons on you.  Reasonable suspicion is a very low standard.

Bringing this back to the GPS issue, the Supreme Court has held that it is a search to stick a GPS tracking device on someone's car and trace its movements in and out of public and private places.  The Fourth Amendment comes into play.  This means you have the right to be free of such searches if they are unreasonable.

Whether a warrant is required is still an open question.