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Current Legal Issues Feature GPS Surveillance, Religious School Banners

Aired 9/19/11 on KPBS Midday Edition.

Can GPS devices be used to track anyone the government is investigating for a crime and placed on a person's vehicle without a warrant? This legal issue will be argued before the U.S. Supreme Court soon.

GPS devices can help law enforcement find lost children, and locate criminals on the run. But can they also be used to track anyone the government is investigating for a crime and placed on a person's vehicle without a warrant? That major question on a GPS case will be argued before the U.S. Supreme Court soon. We'll talk about that case, and the ramifications to a recent ruling closer to home which found a math teacher could not display classroom posters highlighting well-known phrases about God.

Guest: Dan Eaton, San Diego attorney with Seltzer Caplan McMahon Vitek

Read Transcript

This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

CAVANAUGH: This is KPBS Midday Edition. I'm Maureen Cavanaugh GPS devices can limited partner law enforcement and find lost children. And locate criminals on the run. Can they also be used to track anyone the government is investigating and placed on a person's vehicle without a warrant? That major question will be argued before the U.S. Supreme Court soon. We'll talk about that case, and the ramifications to a recent ruling closer to home, which found a math teacher could not display classroom posters highlighting well known phrases about God. Joining me to discuss these issue, San Diego attorney Dan Eaton. It's good to see you.

EATON: Nice to see you too, Maureen.

CAVANAUGH: We're starting with the case of Mr. Johnson at the Poway unified school district. Tell us the factual back grouped of this case.

EATON: Mr. Johnson was a math teacher at west view high school. And like all teachers, all high school teachers at that particular school, he was allowed to put on his bulletin board items that expressed his personality and personal beliefs. And he chose to put very large banners be seven feet by two feet about the role of God in this nation's history. One said one nation under God, one said God bless America, the other one God shed his grace on thee, and the other one said in God we trust. Then he had a separate banner which quoted from the declaration of independence, which said that all men are created equal, they are endowed by their creator, and creator was all in caps. He later explained that he chose these particular banners to show his understanding of the role of God in this nation's history. Ultimately, even though the banners had been up for well over a decade and a half, and in one case, almost 30†years, the school district ordered him to take them down.

CAVANAUGH: Now, in this case, all these phrases come from either American coins or patriotic songs or in the founding documents, the declaration of independence why, then, was Mr. Johnson ordered to remove those phrases from his classroom?

EATON: The school district was concerned that it might run afoul of the establishment clause that prohibits the government endorse. Of religion. There was no necessary finding that it did offend the separation of church and state, but they were concerned enough about it that they told him to replace it with the poster of the coins or a poster of the full declaration of independence. Out of context, school officials thought it seemed too close to trying to proselytize about his own views of religion.

CAVANAUGH: What did the math teacher do. ?

EATON: Well, like all good Californians, he sued. And actually, he won initially in the San Diego federal trial court. Judge Roger Benitez sided with him and said that, no, the school district could not force him to take down posters that they viewed as endorsing Judeo Christian ethics while allowing other posters with the lyrics to John Lennon's song, imagine, which talks about imagining a world with no religion, and a Tibetan flag. That the government couldn't do.

CAVANAUGH: And just republic, a three-judge panel of the Court of Appeals are the ninth circuit court of appeals turned that around and ruled against Mr. Johnson had is banners.

EATON: Right. This ruling just came down last week, as a matter of fact, Maureen, and what the three-judge panel said was that, look, he was talking -- Mr. Johnson was not talking at a private citizen. He was talking as a search. And as his employer, the Poway unified school district to order him to take it down. The Court wasn't finding that allowing the posters to remain up would have violated the establishment clause.

CAVANAUGH: Now, the ACLU is as we both know a fierce advocate for separation of church and state and maintaining that. But they are taking Mr. Johnson's side in this most aren't ruling, against this aren't ruling. Why is that?

EATON: I actually read the friend of the Court brief that the ACLU filed, and they are -- sort of took Mr. Johnson's side. And that is to say, yes, he was speaking and he had a free right as a member of the academy and the high school to speak as he liked and they couldn't discriminate against him. But they said what ought to have happened is the district ought to have ordered Mr. Johnson to take down the posters that he had up but also have that teacher who displayed the Tibetan flags, take that down as well. Favoring the the Buddhist message indicated by the Tibetan flag was not appropriate given that they had ordered the Judeo Christian message taken down. So they sort of sided with him. They said, yeah, he was right that they couldn't discriminate against him Burk they didn't see that he should have the right to redisplay those banners, which is ultimately what he wanted to do.

CAVANAUGH: And the ACLU also took some exception to language in this federal appeals court ruling which basically said because Mr. Johnson was a math teacher there was -- he really should be talking about math is not necessarily having his posters up, and so forth. And the ACLU thought that that was -- might have a chilling effect, right?

EATON: It would. Because the idea of high school according to the ACLU's brief was to encourage the free interchange of ideas am this was not called curricular speech. This admittedly had nothing to do with math. But because the teachers were allowed to express themselves in any way they wanted to in this classroom, he couldn't be singled out simply because he taught calculus rather than American history.

CAVANAUGH: So are speech protections for high school teachers ever been completely defined by courts?

EATON: No. The general speech law is kind of a little hazy. But certainly the ninth circuit said that the speech allowed in the high school is more limited with respect to teachers than the speech allowed in colleges and universities where the audience, namely the students are presumed more mature.

CAVANAUGH: That's interesting. So you have more of a latitude in college than you do as a high school teacher.

EATON: That's exactly right because high school students are viewed as more impressionable. As you get lower down, grammar school, then there are more restrictions still on what you can say watt offending certain lines.

CAVANAUGH: What is next?

EATON: Either Mr. Johnson can accept the defeat from the ninth circuit or he could ask for a rehearing from a broader panel of the ninth circuit or appeal to the United States Supreme Court. It'll be interesting to see what happens next.

CAVANAUGH: Let's move onto the Supreme Court case about GPS devices. We sort of moved from the first amendment to the fourth amendment here.

EATON: We do.

CAVANAUGH: This November, the U.S. Supreme Court will hear oral arguments on the extent to which law enforcement officers may use electronic tracking devices to track criminal suspects. What are the issues that the justices will address in this particular case?

EATON: Well, there are two issues actually in the case of United States versus Jones. One is whether the law enforcement may use these devices to track a suspect's movement over a long period of time without a warrant. The second issue that wasn't actually addressed by the Court of Appeals below, is whether it was appropriate for them to install this device on Mr. Jones' jeep without a warrant of the those are the, two issues that the U.S. Supreme Court has agreed to consider.

CAVANAUGH: Now, the DC circuit court of appeals ruled -- who did they rule in favor of? Law enforcement or the private citizen in.

EATON: The DC circuit ruled in favor of Mr. Jones, the private citizen, and said, look, without a valid warrant, the DC government and the FBI be as it happens, it was a joint task force, could not monitor his movement over 4†weeks 24†hours a day without a valid warrant. And they said as a result the evidence used to convict him of conspiracy regarding cocaine and other kinds of related drug crimes should not have been used, and therefore his conviction had to be overturned.

CAVANAUGH: That seems to be one of the pivotal points in this case, and that is the way the Supreme Court rule would before was that, hey, if a private citizen was on the street and watched you driving around and followed your car and so forth, that wouldn't be illegal. So it's not illegal to put a GPS tracking device on your car. That's exactly right. It was a 1983-case of knots, and that involved a beeper and a container that was used to follow the suspect for 100 miles on a single trip. And what the KC circuit said in distinguishing knots is this is very different. When you are talking not about will going a suspect for a single trip but talking about following him 24 hours a day for 28 days. That's different. Because there is a reasonable expectation that nobody is going to be able to watch you in the public for that long over a sustained period of time, even if it is exposed to the public. It's quite different, they said, the DC circuit said in an opinion by judge begins berg. He was once interestingly enough nominated to the Court by Ronald Regan.

CAVANAUGH: That's interesting. If you saw somebody tracking you for a whole month, you could probably call the police and say someone's stocking me.

EATON: You raise an interesting point. In California, you could indeed. In California, you could indeed call the police, because in California we have a law that was enacted in 1998 that prohibits, in fact makes it a crime for a private individual to use an electronic tracking device to monitor another person.

CAVANAUGH: Now, I'm wondering what law enforcement has to say about this, because it seems to me that if they wanted to track this person for as long a period of time as that, they could just have gotten themselves a warrant. It's not really very difficult, these days, is it, to get a warrant like that?

EATON: Not really, Maureen. And one of the fascinating things about this case is that they did get a warrant, in fact. That required them to put it on the vehicle within a certain number of days, and in DC, the problem is that they installed the particular device one day too late in a different jurisdiction, in the state of mayor land. So they said, no, we agree, we violated the Court's order, but in fact, we didn't need a warrant in the first place, well well, the DC circuit disagreed with them. And that's where we are right now.

CAVANAUGH: So it's basically sort of a technicality that I didn't have a valid warrant.

EATON: Well, it wasn't a valid warrant. I think judges would take issue with your calling what they do in a different state a technicality. But they did seek a warrant. It's just they ultimately said we didn't need one because knots says that you're exposing yourself on the public street, if you're in a car and we can watch you no matter what, using this electronic device. Ultimately the Supreme Court will have to decide what its 19 question ruling really means under the unique facts of this case.

CAVANAUGH: I was talking for the lay audience there. Now, has the ninth circuit court of appeals addressed this issue?

EATON: They did, trial, Maureen. The ninth circuit court of appeals addressed this issue last year and they said no constitutional foul in prolonged surveillance using an electronic tracking device by law enforcement. And what the DC circuit says, yeah, but you didn't specifically address this precise issued raised about whether knots is somehow distinguishable, the previous U.S. Supreme Court case. So we're not going to follow that. In fact, the seventh circuit reached the same conclusion. As the ninth circuit. It'll be very interesting to see what the U.S. Supreme Court now raise recognizing there is a split among the circuit court of appeals how they decide whether prolonged surveillance may be done without a warrant, and the second issue, whether the police required the police to install the device in the first place.

CAVANAUGH: It's interesting when you have different opinions among different courts of appeal, and the district court comes in and says we got to settle this.

EATON: Because we have to make it uniform. And in the DC circuit case, the circuit said the 1998 California law seems to suggest that police need a warrant too, because there was a recognition that private citizens have a reasonable expectation of privacy, not to have these bugs put on their cars. When you look, the year before governor Wilson vetoed a bill that would required law enforcement to get a warrant. It's interesting. Here in California, clearly private citizens, you can't do it, you can't put these electronic tracking devices on. But law enforcement seems to have a broader hand and how broad a hand they have is still on the line.

CAVANAUGH: Wee talking about putting a GPS tracking device on a vehicle. So many people have smart phones that can be used as GPS devices. Is there any legality in how law enforcement might pick up people who just -- by their smart phones?

EATON: Both the law and the -- the case law and the statue, the California statute speaks broadly in terms of electronic tracking devices. So there really isn't any kind of distinction if those devices are used for that purpose.

CAVANAUGH: Now, I'm wondering, you said before that the California state law has addressed the issue of the use of electronic tracking devices. Will but did they also do that for people as well as law enforcement? Is that what you told us?

EATON: ? The 1998 raw that govern Wilson ultimately did sign, the law specifically makes an exception for law enforcement. They say private individuals, no, you can't do this, this is a crime. Law enforcement that use these things validly, that's okay. In fact, a measure that the California legislature passed the previous year would have required law enforcement to get's warrant for the use of these devices. And this was before these devices had acquired the sophistication they have now.

CAVANAUGH: It's interesting. Who is arguing in support of not allowing the law enforcement to be -- to use this GPS technology to track people without a warrant?

EATON: Well, people who defend suspects and so forth, and more broadly, I would expect that you might find the ACLU coming in on the side of the particular defend here. More broadly not just because it's about suspects, but because they want to preserve what they view as the fourth amendment right to be free from searches and is shes. Unreasonable searches and is shes.

CAVANAUGH: When is the Supreme Court expected to rule?

EATON: Since they'll hear oral argument in November, you can probably expect the ruling some time in early or late spring.

CAVANAUGH: It's going to be a fun case to watch.

EATON: We had constitution day on Friday, and I gather they're making it a week long affair.

CAVANAUGH: I've been speaking with San Diego attorney Dan Eaton, thank you so much Dan.

EATON: Nice to see you, Maureen.

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