Judge rules GPS tracking rule isn't retroactive

The ACLU is criticizing an appeals court decision that says evidence obtained with a GPS tracking device prior to a major Supreme Court decision can be used in court.

The Supreme Court in January ruled that when police use a GPS tracking device, it will be considered a “search” for purposes of the Fourth Amendment.

But the Ninth Circuit Court of Appeals on Monday said that decision doesn’t mean evidence police already have obtained with GPS devices must be thrown out.

The court ruled that it wouldn’t exclude such evidence from being used at trial because settled law didn’t prohibit it at the time. The case, United States v. Pineda-Moreno, was already in the courts by the time the Supreme Court ruled. And the Ninth Circuit ruled that the decision doesn’t take effect retroactively.

“When the agents attached and used the mobile tracking devices that yielded the critical evidence, they did so in objectively reasonable reliance on then-binding precedent,” wrote Judge Diarmuid O’Scannlain in the opinion.

The ACLU had filed an amicus brief on Pineda-Moreno’s behalf and called it a “disappointing but narrow” ruling.

“This decision is bad news for Mr. Pineda-Moreno and other defendants in the Ninth Circuit who were tracked before the Supreme Court issued its decision in Jones but whose cases are still working their way through the court system,” Catherine Crump, a staff attorney with the ACLU, wrote Monday.

“It’s crucial that Americans’ privacy is maintained in the face of ever more powerful government surveillance tools.”

Crump noted that the decision did not make a ruling on whether a warrant is needed for law enforcement to attach a GPS device to a car. Tom Goldstein of SCOTUSblog pointed out in January that that is still unsettled law.

This posting was corrected from a previous version at 6:01 p.m.