WASHINGTON, D.C. — A Kaua‘i native is making his mark before the U.S. Supreme Court. Micah Smith, 30, an associate attorney specializing in appellate practice with the law firm of O’Melveny & Myers in the District of Columbia, graduated in
WASHINGTON, D.C. — A Kaua‘i native is making his mark before the U.S. Supreme Court.
Micah Smith, 30, an associate attorney specializing in appellate practice with the law firm of O’Melveny & Myers in the District of Columbia, graduated in 1999 from Kaua‘i High School.
He is the principal author of the respondent’s merits brief for U.S. v. Antoine Jones that was presented last week at the Supreme Court. He and his colleague Walter Dellinger helped prepare Stephen Leckar for the oral argument.
In his brief, Smith notes that Hawai‘i, Minnesota and Utah legislatures recognized as early as 2007 the potential dangers of allowing law enforcement to use GPS technology without restraint. He notes that California explicitly recognized a reasonable expectation of privacy against surreptitious GPS surveillance.
“But these state laws only restrict the actions of state and local law enforcement agents,” Smith said. “If the U.S. Supreme Court rules in favor of the government, the state laws will continue to be valid, but federal law enforcement officers within Hawai‘i, Minnesota, and Utah will be free to use and abuse GPS devices.”
The case questions the use of GPS tracking devices to monitor vehicle movement. The court is expected to reach a decision in the spring.
“The existence of these state statutes — and the fact that law enforcement officers have not been meaningfully impeded from doing their work in the years since those courageous state statutes were enacted — might encourage the U.S. Supreme Court to rule against the government in our case,” Smith said.
The 2004 District of Columbia case involves the vehicle of Antoine Jones, a Maryland club owner who was suspected of being a drug dealer. Local law enforcement placed a GPS surveillance device on his car which sent continuous location information.
A warrant for the device was allowed for 10 days, but agents continue to compile data for over four weeks. It was also installed on the vehicle outside of the D.C. jurisdiction in Maryland.
According to the brief, no drugs were ever found on Jones, but prosecutors charged him based on the frequency of visits to a known drug house, his conversations with suspected customers and an amount of cash found in his vehicle.
Jones appealed the case based on unconstitutional search and reasonable expectation of privacy. He was convicted in a second trial on conspiracy to sell cocaine.
The Supreme Court appeal asks whether the warrantless use of a GPS tracking device on the vehicle to monitor its movements on public streets violates the Fourth Amendment. It also asks whether the government violated Fourth Amendment rights by attaching the GPS tracking device to a vehicle without a valid warrant or the owner’s consent.
“The government argues that it shouldn’t have to get authorization from a neutral judge, a warrant, before it attaches a GPS device to a person’s private vehicle and records all of the person’s travels for 24 hours of every day for any amount of time,” Smith said. “Our position is that the federal constitution requires the government to get a warrant before it uses a person’s private property to generate evidence for use against him at a criminal trial.”
The government argues that getting a warrant is sometimes inconvenient but Smith said there is no reason to believe the government would not get a GPS warrant when it is truly justified.
“Requiring government agents to obtain a warrant, to justify their actions before a neutral magistrate, merely ensures that GPS devices will not be used when the use cannot be justified,” he said.
GPS surveillance proponents argued that it is not an infringement of privacy or property when using public roads. They said it is no different from stakeouts or police vehicles tailing a suspect.
“We’ve argued that physically following a person on public roads is dramatically different from installing a GPS device onto a person’s vehicle and using the device to track the person’s movements at 10-second increments for 24 hours a day,” Smith said.
Visual surveillance is a costly and time-consuming technique, and Smith said GPS surveillance offers perpetual monitoring of movement at little or no cost. While police trailing relates solely to alleged criminal activity, the GPS collects full patterns of movement and more information into private lives.
“To put it differently, if visual surveillance is a butter-knife, GPS surveillance is a gun,” he said. “The Supreme Court can and should regulate the use of GPS surveillance even if it does not believe it should regulate visual surveillance.”
A Kaua‘i upbringing
Smith said his formative memory of Kaua‘i came in the seventh grade when he attended Kaua‘i High and Intermediate School. Hurricane Iniki had just hit the island and he was inspired by the community response.
“It helped me realize how interconnected we are — how our various networks of families and friends are bound together,” he said.
Looking back, Smith said the experience made him fully appreciate the importance of the laws people enact and enforce to keep communities together and strong.
“Laws help us avoid crises, and help us respond to crises, and I wanted to be a part of that,” he added.
Smith attended Lock Haven University in Pennsylvania where his father was a professor and elder siblings were living.
“It was a particularly good fit because the university’s Honors Program curriculum, with small classes and countless discussion groups,” he said. “It helped prepare me for the rigors of law school and helped me adjust to the Mainland. I ended up at Harvard Law School through sheer luck.”
Smith earned his juris doctorate from Harvard University in 2006. He graduated magna cum laude and was a sections editor and co-chair of the Harvard Law Review.
His first legal job was doing pro-bono work for the Legal Aid Society of Hawai‘i during summer break from law school. He worked with Gregory Meyers and Emiko Ryan Meyers at the Kaua‘i office.
“They were terrific mentors and I learned a lot from them,” he said.
Smith’s mother, Betty Smith, and father now live in Texas. However, his wife, Tiana, is also from Kaua‘i, and they visit her family on the Garden Isle at least annually.
“We were married in Koloa in November of 2009, which is the town in which my mother was born and raised,” he said.
