A Wisconsin Appellate Court handed down an interesting decision recently in State of Wisconsin v Sveum. They held that it is not a violation of your Fourth Amendment right to be free of unreasonable searches and seizures for the police to track your with a GPS transmitter affixed to its exterior without a warrant.

While at first blush that holding sounds rather draconian, I must admit that the reasoning is sound. The basic idea is that you do not have an expectation of privacy while in public (at least insofar as being “seen” is concerned). From that it naturally follows that the police can follow you, and your car, without a warrant while you are driving on public roads. And if they can do that with their eyes, they can do the same thing by using the GPS as their “eyes.”

Of course, this doesn’t address the issue that they have physically affixed something to your personal property (your car), which is distinctly different from simply observing you. Interestingly, Sveum’s lawyer did not bring this issue up, and actually conceded that it was legitimate for the police to monitor his movements in public. The real fight in the decision hinges on the idea of “curtilage,” which is the idea that in and around your home, you have a reasonable privacy expectation. In other words, if you or any of your possessions cannot be seen from a public area, you have the legal expectation of privacy in that area. So basically any room inside your home, or your yard if it is surrounded by a fence or some other visual obstruction. Sveum’s main argument was that the GPS device allowed the police to track his car while it was within his curtilage - namely within his garage. The court rejects this because it could either 1) be obtained similarly via a traditional stake out and 2) even if that evidence was suppressible, that doesn’t not mean the rest should be suppressed too.

The court is not completely cold, however. They conclude that there is no Fourth Amendment violation by the Police’s actions here, but don’t like the idea that the Police can do this nonetheless. They call for the Legislature to pass a statute proscribing or regulating such tactics. That is an interesting separation of power situation.

One thing of note is that while the police can follow you about at will, a regular citizen cannot. If they do, that is known as “stalking.” And the great irony is, that is precisely the crime that the GPS tracking device was used to prove, and for which Mr. Sveum served time in jail.