Few doubt that advances in technology have allowed society to be more efficient, safe, economic and accurate. For example, global positioning systems (GPS), a navigation system, provides reliable information about location and time anywhere on earth. GPS is everywhere, providing accurate timing in our everyday activities, such as banking, mobile phone operations and even the control of power grids.
Law enforcement is no stranger to using GPS for surveillance. Indeed, police have long employed vehicle and person-tracking systems, which use GPS to locate and track a vehicle or person 24/7 and receive mobile or Internet updates should the trackee leave a designated area. These surveillance tools are extremely useful in solving crimes and making arrests. That said, today’s surveillance technology has created new issues and concerns regarding the constitutionality of searches and seizures.
To establish a Fourth Amendment violation, people must show that they had a reasonable expectation of privacy in the area to be searched. They must also demonstrate that the expectation is one which society recognizes as reasonable. If a search by police doesn’t intrude upon a legitimate expectation of privacy, there’s no search under the Fourth Amendment.
United States v. Knotts
Nearly 30 years ago, the U.S. Supreme Court, although not addressing the issue of the constitutionality of a vehicle-tracking system placed directly on a vehicle, addressed the issue with respect to a less-sophisticated tracking device. In United States v. Knotts,1 police had planted a tracking device in a five-gallon container of chemicals before it was purchased by one of the defendant’s co-conspirators. By monitoring the progress of the car carrying the tracker, the police were able to follow the container as it was driven 100 miles from the place of purchase in Minneapolis, Minn., to the defendant’s secluded cabin near Shell Lake, Wis.2
The Supreme Court in Knotts held that a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”3 By driving on public roads, the co-conspirator “voluntarily conveyed to anyone who wanted to look” at his progress and route, and thus couldn’t reasonably expect privacy in “the fact of his final destination.”4
Further, “[v]isual surveillance from public places along [the co-conspirator’s] route or adjoining [the defendant’s cabin] would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but also on the use of the beeper to signal the presence of [the co-conspirator’s] automobile to the police receiver, doesn’t alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.”5
Recent Federal Court Decisions
In 2007, the Seventh Circuit Court of Appeals held that there was no search or seizure under the Fourth Amendment when police placed a GPS tracking unit underneath the defendant’s vehicle. In United States v. Garcia,6 after the denial of his motion to suppress evidence, Garcia was convicted of crimes related to the manufacture of methamphetamine. Garcia appealed.
After having been released from prison for methamphetamine offenses, police received several reports that Garcia was involved in the manufacturing of methamphetamine again. A store security camera captured Garcia purchasing ingredients commonly used to make the drug.
Once the police learned Garcia was driving a Ford Tempo, they found it parked on a public street near his home. The police placed a GPS tracking unit under the rear bumper of the vehicle. The police later retrieved the device and were able to learn the car’s travel history since the installation of the device. They learned that the vehicle had traveled to a large tract of land. The police obtained the landowner’s consent to search it. While doing so, Garcia approached the property. Police found equipment and materials used in the manufacture of methamphetamine and arrested Garcia.
The appellate court noted that although the Fourth Amendment generally requires a warrant, it doesn’t come into play unless there’s a search or seizure under the meaning of the Fourth Amendment. The court stated that the tracking device “did not ‘seize’ the car in any intelligible sense of the word.” In other words, it didn’t affect the car’s driving qualities, draw power from the car’s engine or battery, take up room in the vehicle and didn’t alter the car’s appearance.7
Nor did the police activities constitute a search. The appellate court likened the tracking device to the use of surveillance cameras and satellite imaging. It noted that the use of cameras mounted on lampposts or satellite imaging used by Google Earth don’t constitute searches. The fact that a satellite is used to transmit geophysical coordinates is a distinction without a difference.8
Other Cases
In United States v. Pineda-Moreno,9 the defendant moved to suppress evidence obtained from a mobile tracking device that was attached to his vehicle. The district court denied the motion and the defendant appealed.
In this case, DEA agents were monitoring a group of men suspected of manufacturing marijuana. The defendant owned a Jeep that was used to transport several items used to grow marijuana. The agents monitored the Jeep’s movements using vehicle tracking devices installed magnetically under the vehicle. At the conclusion of the four-month investigation, the agents arrested the defendant as he was leaving a marijuana growing site.
The Ninth Circuit Court of Appeals found that the mobile tracking device didn’t constitute an unlawful search because the officers’ action merely substituted their following the car on a public street, “that is unequivocally not a search within the meaning of the amendment.”10 “Insofar as [the defendant’s] complaint appears to be simply that scientific devices, such as the tracking devices enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality and decline to do so now.”11
However, last month, the U.S. Court of Appeals for the District of Columbia held that the warrantless use of a GPS device on a vehicle for a month was a search. In United States v. Maynard,12 FBI agents planted a GPS device on the defendant’s vehicle while it was on private property without securing a warrant, and then used it to track the position of the automobile every 10 seconds for a full month.
The D.C. Circuit Court of Appeals held that such round-the-clock surveillance required a search warrant based on probable cause. The court expressly rejected the government’s argument that such extended, 24-hours-per-day surveillance without a warrant was constitutional based on the Supreme Court’s previous ruling in Knotts. The court of appeals stated that the Supreme Court had never considered location-tracking of such length and scope, noting, “when it comes to privacy…the whole may be more revealing than its parts.”13
In other words, “It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements and chores that make up that person’s hitherto private routine.”14
Indeed, “[p]rolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation.”15 By way of illustration, the court of appeals stated that “a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story.”16
The Bottom Line
The use of GPS devices to assist in law enforcement surveillance is an area that’s still developing. The Supreme Court will have to address this issue to establish some consistency in the application of such tracking tools. Police officers must be aware of their respective state laws, as several states prohibit the use of mobile tracking devices without first obtaining a warrant.17
References
1. 460 U.S. 276, 277 (1983).
2. Id.
3. 460 U.S. at 281.
4. Id.
5. Id.
6. 474 F.3d 994 (7th Cir. 2007).
7. Id. at 996.
8. 474 F.3d at 997.
9. 591 F.3d 1212 (9th Cir. 2010).
10. Id. at 1216. See also, United States v. Marquez, 605 F.3d 604 (8th Cir. 2010) (finding “when police have reasonable suspicion that a particular vehicle is transporting drugs, a warrant is not required when, while the vehicle is parked in a public place, they install a non-invasive GPS tracking device on it for a reasonable period of time.”)
11. 591 F.3d at 1216.
12. ___F.3d___, 2010 WL 3063788 (D.C. Cir. 2010).
13. Id. at *12.
14. Id.
15. Id. at *13.
16. Id.
17. See, People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009), State v. Jackson, 76 P.3d 217 (Wash. 2003).
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
