Professor Lenese Herbert was cited by three amicus briefs for the case of U.S. v. Jones, which the U.S. Supreme Court will hear on Nov. 8.
U.S. v. Jones hinges on whether the Constitution allows police to put a tracking device on a car without either a warrant or the owner's permission and whether the Constitution is violated when police use the tracking device to keep track of the car's whereabouts.
Professor Herbert analyzed the constitutionality of GPS surveillance by law enforcement and other government agencies in a recent article published in the ABA's Criminal Justice magazine.
In the article, "Challenging the (Un)Constitutionality of Governmental GPS Surveillance," Professor Herbert writes that "[w]ith increasing frequency, federal, state, and municipal law enforcement agencies are attaching GPS devices to vehicles - often without a judicially-issued warrant - to obtain evidence that will support successful criminal prosecutions."
Professor Herbert discusses the constitutional implications (both state and federal) of defining GPS surveillance as a Fourth Amendment "search" or "seizure." Additionally, she previews the federal constitutional analysis that may guide the U.S. Supreme Court's analysis in U.S. v. Jones, the GPS surveillance decision that split the federal circuits and which the court recently announced it will hear during its 2011-12 term.
An expert on federal constitutional criminal procedure, Professor Herbert teaches Criminal Procedure: Investigation at Albany Law School, as well as Advanced Criminal Procedure, Evidence, Criminal Law, and Administrative Law. She is also a frequent speaker and widely quoted resource on these subjects.
Prior to joining the Albany Law faculty in 2002, Professor Herbert was an associate professor of law at Western New England College School of Law in Springfield, Mass. She is co-author of the casebook Constitutional Criminal Procedure, which was recently published in its fourth edition by Foundation Press.
Professor Herbert has also served as an assistant U.S. attorney for the District of Columbia under then-U.S. Attorney Eric Holder, who is the current U.S. attorney general. Prior to serving as an AUSA, she served as a trial attorney in the U.S. Commodity Futures Trading Commission's Division of Enforcement and as an attorney advisor for the Chief Counsel's office of the Urban Mass Transit Administration at the U.S. Department of Transportation.