Debate Over GPS Devices On Suspects’ Cars Spurs ‘Big Brother’ Concerns

By Thomas Peele
Posted: 09/25/2011 02:00:00 PM PDT

A legal case with implications that some say spring straight from the pages of George Orwell’s “1984″ is headed to the Supreme Court in November, and its outcome could have a major effect on one of the Bay Area’s biggest murder cases in the past decade.

Justices are being asked to decide whether law enforcement officers need a warrant to hide GPS devices on suspects’ cars to track their movements using satellites and computers.

The case pits constitutional rights of privacy and protection from unfair police tactics against high-tech government surveillance. It has already drawn analogies to the “Big Brother”-type government intrusion Orwell envisioned in his novel.

Critics of the warrantless tracking say that without checks, police could routinely monitor everyone’s location, all the time. Others say police already are free to conduct surveillance by simply following people, and there is no legal difference between trailing someone by car or on foot and using technology to, in effect, do the same thing.

Last year, Yasir Afifi, an Egyptian-American student at Mission College in San Jose, filed suit after he found a GPS device on his car after taking it in for a routine oil change.

“We don’t have a reasonable expectation of privacy when we are out on public streets,” said Anthony Barkow, director of the Center for the Administration of Criminal Law at New York University Law School. “Police can do it without technology. This (case) is just sexier because it is high tech.”

Earlier this year, evidence from a tracking device installed without a warrant on a car belonging to Yusuf Bey IV, the former leader

of Oakland’s Your Black Muslin Bakery, helped convict him and another man in the 2007 murder of journalist Chauncey Bailey. Bey IV’s lawyer argued that the tracking data was obtained illegally, but a judge ruled otherwise.

If the Supreme Court rules that installing a tracker without a warrant violates the Fourth Amendment protection against unfair searches and seizures, the convictions of Bey IV and his co-defendant Antoine Mackey could be thrown out and a new trial ordered in the Bailey case, legal experts said. Two other murder convictions against Bey IV and one against Mackey would not be affected.

The use of GPS trackers has other implications, as well.

Last year, Yasir Afifi, an Egyptian-American student at Mission College in San Jose, filed suit after he found a GPS device on his car after taking it in for a routine oil change.

The Council on American Islamic Relations earlier this year sued the government on behalf of Afifi, arguing that his Fourth Amendment rights were violated and describing the tracker as “acting as an illegal trespasser.” Afifi, 20, who was born in the United States, said he has never done anything to attract attention of law enforcement.

The FBI placed it on Afifi’s car without a warrant as part of an investigation about which it has refused to provide details. (more…)

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