Warrantless GPS Surveillance: Search and Seizure - Using the Right to Exclude to Address the Constitutionality of GPS Tracking Systems Under the Fourth Amendment

Abstract

GPS tracking systems are a rapidly growing technology that provide a wide range of benefits, including navigation, transportation, and public safety. Of the many potential uses of GPS technology, location tracking is perhaps one of the fastest-growing GPS applications today. Law enforcement agencies nationwide secretly use GPS tracking systems to conduct surveillance on suspected criminals in a variety of situations, which has led to countless arrests and convictions. The unfettered use of GPS tracking raises many unanswered questions about an individual’s right to privacy in an increasingly technological world. This Article explores traditional concepts of property rights; specifically, the right to exclude, that underlie fundamental notions of the right to privacy and the protection of property interests under the Fourth Amendment. This Article advocates that the right to exclude is so inextricably connected to the right to privacy and the protection of property interests that any invasion of the right to exclude, absent a warrant, consent or other exigent circumstances, (i) violates one’s reasonable expectation of privacy sufficient to constitute a “search” under the Fourth Amendment, and (ii) represents a meaningful interference with property interests sufficient to constitute a “seizure” under the Fourth Amendment.