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"exec" writes:

Arthur T Knackerbracket has found the following story:

A top Homeland Security Investigations official has told a federal court that it remains the agency's policy that officers can install a GPS tracking device on cars entering the United States "without a warrant or individualized suspicion" for up to 48 hours.

There is no such time limit, HSI Assistant Director Matthew C. Allen also told the court, for putting such trackers on "airplane, commercial vehicles, and semi-tractor trailers, which has a significantly reduced expectation of privacy in the location of their vehicles."

Such an assertion comes over a month after a federal judge recently told the Department of Justice that such a practice—at least in one drug-trafficking case—is unconstitutional. His decision is based on a landmark 2012 Supreme Court ruling involving GPS tracking, known as Jones.

Prosecutors had claimed that installing such a tracker was valid under the "border doctrine" exception to the Fourth Amendment, which finds that limited, warrantless searches at the border are allowed. US District Judge Jesus G. Bernal disagreed in an August 24, 2018 ruling.

Allen continued, saying that HSI believes that its policy is "consistent" with both the Jones decision and a case from 2004 case known as Flores-Montano. In that instance, the Supreme Court ruled that there is a "diminished" expectation of privacy at the border.

Legal experts find this newly disclosed HSI policy to be troubling.

"It is hard to square with the [Supreme] Court's decision in Jones," wrote Michael Price, an attorney with the National Association of Criminal Defense Lawyers, in an email to Ars.

[...] Government lawyers have asked Judge Bernal to amend his August 24 order simply to include that the FBI agent and Los Angeles Police Department officer involved in the arrest should not be reprimanded for what turned out to be bad legal advice.

On Friday, Steven Gruel and Marilyn Bednarski, attorneys for the defendants, filed a motion to the court, arguing against the government's position.

"If the federal government does in fact have such a policy and is training law enforcement agents to act as the policy suggests, which is a violation of the 4th amendment, the government should be deterred and the agencies' internal policies and training should be revealed and scrutinized," they wrote.

The two sides will be back in court on November 5 at 2pm to discuss the matter.

-- submitted from IRC

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