LEGAL STUDIES RESEARCH PAPER SERIES No.

16 of 2011-2012

Challenging the (Un)Constitutionality of Governmental GPS Surveillance

Criminal Justice, Volume 26, Number 2, Summer 2011.

Professor Lenese Herbert Professor of Law

Electronic copy available at: http://ssrn.com/abstract=1907719

Challenging the (Un)Constitutionality of Governmental GPS Surveillance

BY LENESE C. HERBERT

lobal positioning system (GPS) technology has evolved beyond its origins and is now considered as essential a modern resource as cell phones (in fact, most smart phones are preloaded with GPS-enabled technology). Relied upon by millions for matters of industry, family, economy, community, and safety, today anyone with the means to obtain and operate a GPS device is instantly plugged into the most sophisticated navigation system in known history. Police departments across the country are also relying upon GPS devices to initiate or further criminal investigations. GPS-enabled surveillance allows law enforcement agents to collect continuous, detailed, and real-time location, speed, direction, and duration information. The government can collect this information for hours, days, weeks, months, and even years, thus making it easier to amass extraordinary amounts of detailed information without incurring the commensurate costs in dedicated employee resources, salary, benefits, and overtime pay. (See, e.g., United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010) (noting that the GPS-enabled device merely allowed the police to reduce the cost of lawful surveillance).) With increasing frequency, federal, state, and municipal law enforcement agencies are attaching GPS devices to vehiclesoften without a judicially-issued warrantto obtain evidence that will support successful criminal prosecutions. Challenges to the governments use of and reliance upon GPS-enabled surveillance evidence are increasing as well, with challengers arguing that the governments warrantless installation of GPS devices on motorists vehicles (and the resultant monitoring of motorists movements) violates individual privacy rights under federal

and state law. Motions to suppress GPS-enabled surveillance data in criminal prosecutions unanimously invoke the individuals first line of defense in privacy protection: the US Constitutions Fourth Amendment prohibition against unreasonable governmental searches. A number of these motions also invoke the Fourth Amendments prohibition against unreasonable governmental seizures, as well as state law protections. The US Supreme Court has yet to rule upon the constitutionality of warrantless governmental placement, tracking, and 24-hour use of GPS-enabled devices and surveillance data in criminal prosecutions. The closest the court has recently come occurred in United States v. Knotts, 460 U.S. 276 (1983) (finding no Fourth Amendment search when government agents monitored a tracking beeper while the suspect traveled over public roads, as the tracked car, its occupants, contents, and movements were in plain view), United States v. Karo, 468 U.S. 705 (1984) (holding the governments monitoring of a tracking beeper inside a metal can of ether while within a residence constituted a Fourth Amendment search, despite lack of physical intrusion into the home), and Kyllo v. United States, 533 U.S. 27 (2001) (finding governments use of a thermal imager upon defendants home was a Fourth Amendment search, as the technology accessed information otherwise unavailable without physical intrusion). None of these, however, squarely addresses the multiplicity of facts and potential privacy interests that warrantless GPS-enabled surveillance cases spawn. Criminal defense attorneys, individual rights advocates, judges, and even prosecutors must understand that the governments use of GPS surveillance in criminal cases

Published in Criminal Justice, Volume 26, Number 2, Summer 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

presents potentially complex constitutional issues for the accused, the defense bar, the bench, and society. This article will focus on the recent and divergent federal and state decisions regarding whether the government may constitutionally initiate 24-hour surveillance of anyone, anywhere, without judicial guidance, oversight, or scrutiny.

The Technology

GPS, developed by the US Department of Defense, is the worlds first man-made satellite navigation system. Named the NAVSTARGPS (Navigation Signal Timing and Ranging Global Positioning System), GPS originated as a military navigation system. Today, GPS includes a constellation of nearly 30 solar-powered satellites that orbit the planet twice a day, transmitting high-frequency, low-power line of sight radio signals to different users on different frequencies. The satellites orbit patterns are calculated and choreographed so that, worldwide, a GPS receiver on the ground is always visible, i.e., receiving signals simultaneously from no fewer than four satellites. The multiple and simultaneous satellite readings allow location of the GPS device via trilateration, which identifies location in three-dimensional space, thanks to the satellites readings intersection point on the surface of the planet. When we refer to GPS, we often are actually speaking of one of its innumerable receivers, contained in either a portable or an installed device we rely upon for location and direction information, as well as speed. Better GPS devices have multiple receivers, which means they can, simultaneously, receive signals from several satellites. Referring to GPS as a tracking system also mischaracterizes the system and minimizes its capacity. GPS receivers are passive devices that merely read information transmitted around the clock by the satellites. However, once a GPS receiver is outfitted with a transmitter or recording device, third parties interested in determining the whereabouts of the GPS device may remotely and unblinkingly surveil its location continually virtually anywhere on the globe. Quantitatively and qualitatively, then, GPS-enabled surveillance is far cheaper and vastly superior to visual surveillance, as no one human or organization of human observers is currently capable of such comprehensive, continuous, and accurate information regarding location and movement monitoring.

The Methodology

GPS-enabled devices, attached to vehicles by government agents, allow police to monitor and record vehicle
LENESE C. HERBERT is a law professor at Albany Law School in New York and coauthor of the casebook Constitutional Criminal Procedure (4th ed. Foundation Press).

locations, almost always without driver or occupant knowledge. Generally, officers attach one or more small, battery-operated GPS-enabled devicesno larger than a deck of cardsto a vehicles undercarriage or bumper by means of noninvasive magnetized strips or an adhesive. GPS-enabled devices also may be attached to the engine and its components, which allow these devices to draw power from the vehicles electrical system. Such devices can run indefinitely without government maintenance. (See, e.g., Commonwealth v. Connolly, 454 Mass. 808, 812 (Ma. 2009) (noting GPS-enabled surveillance device attached to the engine of the defendants minivan and drew power from the vehicles electrical system).) Most devices, however, require maintenance and replacement of the power source, especially when surveillance is lengthy. (See, e.g., Marquez, 605 F.3d at 607 (changing batteries seven times after the initial device attachment to the vehicle); United States v. Pineda-Moreno, 591 F.3d 1212, 1213 (9th Cir. 2010) (attaching several mobile tracking and one GPS-enabled surveillance devices to the defendants Jeep and replacing the devices seven times, rehg denied, 617 F.3d 1120 (2010).) Once the GPS-enabled surveillance device is attached to the vehicle of interest, officers simply sit back and let the datatime, date, speed, direction, duration, and locationamass. At some point, the data is analyzed, organized, and presented as evidence upon which to pursue criminal prosecution of one or more suspects. The data may be stored indefinitely; new informationbased on the stored data and a variety of governmental needs may be generated at any time and per any governmentally-requested calculus/formula/permutation/coordinates. Because some law enforcement agencies remain wary of the ability of GPS-enabled surveillance to withstand constitutional challenges, these agencies attach and dispatch, i.e., rely upon the constitutionally-sanctioned low- or no-technology tactic of plain view observation along with GPS-enabled surveillance. (See Coolidge v. New Hampshire, 403 U.S. 443, 46568 (1971). ) Attach and Dispatch departments place GPS-enabled devices on suspected vehicles, establish locations via GPS-enabled monitoring, and send eyewitnesses to those locations for real-time, human eye observation. (See, e.g., United States v. Hernandez, 2009 U.S. Dist. LEXIS 86309, *1011 (N.D. Tex. 2009); State v. Johnson, 190 Ohio App. 3d 750, 754 (12th App. Dist. Butler Co. 2010).) Some departments go further, mounting automatic cameras atop or alongside public utility poles to photograph GPS-surveilled vehicles. (See Marquez, 605 F.3d at 607.) The rationale for such belt and suspenders tactics in criminal investigations is simple: These departments (and the governments prosecutors) reason that even if the thoroughly modern and breathtakingly

Published in Criminal Justice, Volume 26, Number 2, Summer 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

comprehensive GPS-enabled surveillance data is suppressed, old-fashioned, plain-view observations will defeat reasonable expectation of privacy claims in court.

Traditional Fourth Amendment Analysis

The Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. (U.S. Const., amend. IV.) The Supreme Court has interpreted the Fourth Amendment to require governments to obtain judicially-issued warrants based upon probable cause and particularity prior to searching and seizing. This protection of individuals rights also extends to the states via the Fourteenth Amendment. (See Dunaway v. New York, 442 U.S. 200, 207 (1979) (citation omitted).)

what has come to be known as the two-pronged Katz Test to determine whether a defendant has a reasonable expectation of privacy: (1) whether the individual exhibited an actual (subjective) expectation of privacy and (2) whether that expectation is one that society is prepared to recognize as reasonable. (Katz, 389 U.S. at 361 (Harlan, J., concurring).) Searches that occur under the authority of the Fourth Amendment but without a judge- or magistrate-issued warrant are treated by the court as per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions. (Id. at 357.)

Does the Accused Have Standing?

Standing allows aggrieved individuals to challenge the governments actions. Fourth Amendment standing is substantive; an individual has standing when one or more Fourth Amendment interests have been infringed upon. The individual who seeks to suppress introduction of the

Once the GPS-enabled surveillance device is attached to the vehicle of interest, officers simply sit back and let the data amass.
Currently, Fourth Amendment challenges are governed by the reasonable expectation of privacy test announced in Katz v. United States, 389 U.S. 351 (1967). There, without a warrant, government agents wiretapped and recorded the defendant while he spoke on a telephone in a public phone booth. The court determined that the wiretap violated the privacy upon which the defendant justifiably relied and thus constituted an unreasonable search and seizure. (Id. at 353.) Prior to Katz, governmental intrusions were unlikely to be deemed unreasonable unless they violated a property law-based interestfor example, trespass. Since Katz, the court has provided constitutional protection for those who have standing to claim their legitimate expectation of privacy has been violated by the government, irrespective of property law interests. Though the Fourth Amendment does not provide or protect a general constitutional right to privacy, it does protect what a person seeks to preserve as private, even in an area accessible to the public. (Id. at 351.) Per Katz, the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. (Id. at 35152.) In his Katz concurrence, Justice Harlan articulated governments evidence must show that he or she had a reasonable expectation of privacy in the area(s) searched or the item(s) seized. (See Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978).) In order to invoke Fourth Amendment standing, there is no requirement that one act in complete and total secrecy. Remember: Katz received Fourth Amendment protection and he made his calls from a highly visible, glass-encased, public telephone booth. Thus, persons alleging unconstitutional governmental conduct under the Fourth Amendment must establishper Katzthat they have a legitimate expectation of privacy, i.e., demonstrating a subjective manifestation of an expectation of privacy in the area searched that society is prepared to recognize or accept as reasonable. Keep in mind that GPS surveillance data is not always used against the person who has standing to object to the governments conduct. (See, e.g., Marquez, 605 F.3d at 609 (finding defendant lacked standing to challenge GPS device installation, as he neither owned nor drove the GPS-tracked vehicle and was only an occasional passenger therein); United States v. Sparks, 750 F. Supp. 2d 384, 387 (D. Ma. 2010) (opining that a temporary passengers motion to suppress GPS evidence in the defendants vehicle stands in a significantly worse position . . . as a challenger to the legality of the GPS device).) Property ownership or possession is a factor

Published in Criminal Justice, Volume 26, Number 2, Summer 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

to be considered in determining whether an individuals Fourth Amendment rights have been violated; however, it is neither the beginning nor the end of the standing analysis under the Fourth Amendment. (See Rakas, 439 U.S. at 143, n.12.) The court has made clear: One whose Fourth Amendment rights are violated may successfully suppress evidence obtained in the course of an illegal search and seizure. (Id. at 13738.) Accordingly, possession and even ownership of a vehicle that is the subject of governmental surveillance via one or more GPSenabled devices may indicatebut does not substitute fora factual finding that the accused had a legitimate expectation of privacy in the area searched. Also, be aware that the governments GPS information may originate elsewhere. Many newer vehicles are manufactured with GPS-enabled devices and surveillance systems. Additionally, owner/operators increasingly install post-market surveillance systems such as OnStar or LoJack and purchase subscriptions to their GPS-enabled surveillance services. Do such facts have implications for Fourth Amendment standing, i.e., what if the government does not install its own GPS-enabled surveillance device, but, instead, introduces information obtained from manufacturer- or owner-installed surveillance systems in the criminal case against the defendant? Even when it comes to the Fourth Amendment, remembercaveat emptor. The courts Third Party/Assumption of the Risk Doctrine provides no constitutional protection for information conveyed to a third party, as one assumes the risk that the third party might disclose that information to others, including the government. (See, Smith v. Maryland, 442 U.S. 735, 744 (1979) (finding no reasonable expectation or Fourth Amendment protection of privacy in telephone numbers dialed, as petitioner voluntarily conveyed numerical information to the telephone company and exposed that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed); United States v. Miller, 425 U.S. 435, 443 (1976) (holding no Fourth Amendment privacy interest in bank records, irrespective of banks contractual and fiduciary obligations of confidentiality; records deemed business records of the bank).) This doctrine has come under increasing criticism, given the extent to which we, in this Age of the Internet and other third-party service providers, routinely must disclose private information. Nevertheless, current Fourth Amendment precedent holds more often than not that personal disclosure begets constitutional exposure, i.e., those of us who share personal informationeven for personal servicesremain as constitutionally unprotected as those who might have thrown the same information in the garbage. (See California v. Greenwood, 486 U.S. 35,

4041 (1988) (concluding that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection).) What if the tracked motorists did not personally subscribe to the third-party GPS surveillance service? Constitutionally, motorists may still find themselves in the same position as those who do. In United States v. Dantzler, 2010 U.S. Dist. LEXIS 68753 (W.D. La. 2010) at *910, defendant had no reasonable expectation of privacy in the movement of a rented vehicle on public roads, especially considering that officers had not installed the device or system, but simply accessed information it transmitted to OnStar: [e]ven when analyzed from the perspective of the Fourth Amendment, however, defendants challenge proves unavailing because the receipt of satellite tracking information from a thirdparty monitoring service subscribed to by the vehicle owner does not constitute a search or seizure under the Fourth Amendment; therefore, defendant does not enjoy standing to contest. Even if a monitored motorist did not know that the purchased, rented, or borrowed vehicle was subscribed to a GPS-enabled surveillance service, courts may, nevertheless, find no legitimate expectation of privacy infringed, particularly if the evidence fails to indicate that the motorist, at a minimum, attempted to satisfy Katzs first prong by, e.g., rejecting the system, refusing monitoring while driving, or rebuking the portions of the contractual agreement. (See id. at *1112 (there is no evidence that Dantzler did not know that the . . . Tahoe was installed with the OnStar system, nor was there evidence that Dantzlers rental agreement precluded monitoring of the vehicles travels via GPS or disclosure of real-time monitoring data to third parties, including law enforcement. Without such evidence, defendant has not met his Fourth Amendment burden).)

Is There a Governmental Search or Seizure?

The court has held that the Fourth Amendment protects two kinds of individual interests: searches and seizures. A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A seizure of property occurs when there is some meaningful interference with an individuals possessory interests in that property. (United States v. Jacobsen, 466 U.S. 109, 113 (1984).) If neither has occurred, the Fourth Amendment does not apply. Key, then, is to determine whether a search, seizure, or perhaps both, has occurred. Search. The court has not yet determined whether installation of a GPS device by the government constitutes a search under the Fourth Amendment, (See, e.g., People v. Weaver, 909 N.E. 2d 1195 (N.Y. 2009).) Court precedent, however, augurs against lower courts finding a

Published in Criminal Justice, Volume 26, Number 2, Summer 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

search when the government monitors vehicles without a warrant via GPS-enabled devices, given the court has determined that attaching a tracking beeper to the inside of a canister for the specific purpose of tracking a vehicle on public roads is not a search, Knotts, 460 U.S. at 28183. Manifestation of a Subjective Expectation of Privacy. The court treats vehicles as Fourth Amendment effects and recognizes there is a legitimate expectation of privacy in a vehicle one owns or legitimately possesses. (See Coolidge, 403 U.S. at 461 (The word automobile is not a talisman in whose presence the Fourth Amendment fades away and disappears); United States v. Ortiz, 422 U.S. 891, 896 (1975) (A search even of an automobile, is a substantial invasion of privacy); Arizona v. Gant, __ U.S. __, 129 S. Ct. 1710, 1720 (2009) (finding the expectation of privacy in ones vehicle important and deserving of constitutional protection).) However, despite the recognized legitimacy of a vehicular privacy interest, it is also deemed a lesser expectation, given a vehicles mobility, transparency, and highly-regulated, inspected reality. Not only is the expectation of privacy minimized, whatever is protected by the Fourth Amendment is within the vehicles interior compartments, not the vehicles exterior or undercarriage. Governmental conduct that occurs in the unprotected realm does not implicate the Fourth Amendment and, as such, reasonableness is not required. Accordingly, there is no reasonable expectation of privacy in the publicly visible exterior of a vehicle, New York v. Class, 475 U.S. 106, 114 (1986), and there is no legitimate privacy interest in the movement of a vehicle traveling on public roadways, Knotts, 460 U.S. at 28183. (See, also, e.g., Marquez, 605 F.3d at 609 (even if defendant had standing, which he did not, per Knotts, GPS-enabled surveillance via noninvasive device placed on the cars exterior did not invade a legitimate expectation of privacy); United States v. Burton, 698 F. Supp. 2d 1303 (N.D. Fl. 2010) (denying defendants motion to suppress; no legitimate expectation of privacy in the movements of his automobile on public roads).) The courts conclusion is the same even when the driver of a GPS-surveilled vehicle actually manifests a subjective expectation of privacy in the vehicles exterior or public travels. In Knotts, 460 U.S. at 278, the court determined that though evasive driving may satisfy the first prong of the Katz inquiry, the expectation was not one society would recognize as reasonable. Lower federal courts have followed suit, extending in similar fashion the Knotts and Karo beeper decisions to GPS-enabled devices. (See United States v. Williams, 650 F. Supp. 2d 633, 668 (W.D. Ky. 2009); United States v. Moran, 349 F. Supp. 2d 425, 467 (N.D.N.Y. 2005); United States v. Coombs, 2009 U.S. Dist. LEXIS 105547 *10 (D. Ariz.

2009).) States similarly regard such challenges and deny defendants motions to suppress, given the disputed governmental conduct did not infringe upon a protected interest. (See, e.g., Stone v. State, 178 Md. App. 428, 44650 (2008); State v. Sveum, 319 Wis. 2d 498, 50708 (Wis. Ct. App. 2009), affd, 328 Wis. 2d 369 (Wis. 2010), cert. denied, 131 S. Ct. 803 (2010).) Is Society Prepared? The Objective Reasonableness Prong. Parties should remember that traditional notions of protected interests and areas remain relevant in Fourth Amendment law. Recall that in Karo, 468 U.S. at 713, the US Drug Enforcement Agency initially used the beeper technology of Knotts properly but went constitutionally astray when they tracked beyond the plain-view exposure of public travel into the suspects private residence, where there is a heightened (versus lesser) expectation of privacy. Monitoring the beeper inside versus outside the residence was a search and because it occurred without a warrant, violated the Fourth Amendment. (Id. at 71921.) Here, as in real estate, location may be determinative. So, if police enter land, a yard, driveway, parking space, carport, or enclosed garage to attach the GPS device, the government should prepare its response to a suppression motion, given law enforcements warrantless presence upon or within curtilage. Such facts, properly developed by defense counsel or refuted by the government, will assist the courts determination of the legitimacy and reasonableness of the defendants Fourth Amendment interest(s), whether police sufficiently violated the interest(s), and if exclusion of the evidence is warranted. (See Williams, 650 F. Supp. 2d at 668 (no search when GPS was installed on vehicles exterior and tracked only on public roads, but noting that outcome might have been entirely different if GPS device had been either installed or monitored while vehicle was on private property); United States v. Jones, 451 F. Supp. 2d 71, 88 (D.D.C. 2006) (holding GPS surveillance while vehicle traveled public roads is not a search; however, monitoring while it is parked in a garage constituted a search); Moran, 349 F. Supp. 2d at 467 (holding no reasonable expectation of privacy in vehicles exterior on public roads, where there is a diminished expectation of privacy).) However, depending on the court, location may also be rendered insignificant or irrelevant. Even when officers unquestionably invade a protected area, such as a homes curtilage, and traditional notions of protected areas remain relevant under the Fourth Amendment, some federal circuit courts of appeal have recently refused to extend full Fourth Amendment protection to defendants who did not take additional steps to exclude intruders from their realty or vehicle. In United States v. PinedaMoreno, 591 F.3d 1212 (9th Cir. 2010), the Ninth Circuit reasoned that despite the governments concession that

Published in Criminal Justice, Volume 26, Number 2, Summer 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

its agents entered the defendants drivewaypart of his homes curtilage, traditionally a protected area under the Fourth Amendment, see Hester v. Oliver, 466 U.S. 170, 180 (1984)to attach the GPS device to defendants Jeep, Pineda-Moreno had no reasonable expectation of privacy. The Ninth Circuit declined to reach the question of whether, in fact, the police invaded (or the Jeep was parked within) a protected area. Instead, the Ninth Circuit determined that even if it was within an area protected by the Fourth Amendment, Pineda-Morenos driveway was only a semiprivate area: [T]he driveway had no gate, no No Trespassing signs, and no features to prevent someone standing in the street from seeing the entire driveway. . . . If a neighborhood child had walked up Pineda-Morenos driveway and crawled under his Jeep to retrieve a lost ball or runaway cat, Pineda-Moreno would have no grounds to complain. Thus, because Pineda-Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of his home. (Id. at 1215 (citation omitted).) Similarly, in Burton, 698 F. Supp. 2d at 1306, the government offered photographs to bolster officer testimony that the defendants parked Chevy Avalanche took up most of the driveway and allowed little distance between the vehicle and the public sidewalk and street, which convinced the district court that the officer was able to attach the GPS device from a public sidewalk. (Id. at 1308.) At the state level, the Virginia Court of Appeals similarly ruled in Foltz v. Commonwealth, 698 S.E. 2d 281 (Va. Ct. App. 2010), dismissing the defendants Fourth Amendment claim because the defendant had no reasonable expectation of privacy while traveling on public roads in his employers van. The state court also cited the defendants failure under Katzs first prong to subjectively manifest an expectation of privacy in the vans bumper, where the government attached the GPS device; in fact, the courts analysis bordered on blaming the defendant for failing to prevent others from inspecting the bumper of the van he drove, parking on public versus private property. That the police did not need to remove a lock, latch, or cover to reach into the bumper and attach the GPS device were fatal to his search claim. (Id. at 28687.) In rejecting the seizure allegations, the court noted that the device installation did not meaningfully interfere with the defendants possessory interest, particularly since he did not own the van, but merely used it for work. (Id. at 28788.) (The court did not decide if the outcome would change if the defendant

owned, versus used, the employers van. (See id. at 288.) Do not presume, then, that if police intrude upon protected areas to install the GPS-enabled device that the governments evidence will be suppressed. Instead, evaluate the level or degree of governmental intrusiveness in the assessment of Katzs second prong. Depending on the court, the evaluation of what otherwise would be considered significant or determinative, e.g., location, may ultimately be rendered irrelevant. (See United States v. McIver, 186 F.3d 1119, 112627 (9th Cir. 1999) (no search when the police placed their GPS device on a vehicles exterior while it sat in the suspects driveway, but outside his homes curtilage); Sparks, 750 F. Supp. 2d at 38890 (excluding defendants parking spot from the curtilage of his rented apartment, and characterizing it as a common areadespite the spots location on a private street and lot owned by Sparkss landlord; the trespass to attach the GPS device was a trespass against the owner, not the defendant: [u]nfortunately for Sparks, notions of property law are only marginally relevant to this Courts Fourth Amendment analysis).)

Seizure Versus Search: Does It Matter?

That depends. Conventional wisdom, rooted in Supreme Court precedent, indicates that distinguishing a governmental search from a seizure is practically irrelevant, as the constitutional issue is not classification but intrusion. Accordingly, what matters is only whether the governmental conduct violated a legitimate expectation of privacy. (See United States v. Bailey, 628 F.2d 938, 940 (6th Cir. 1980) (finding distinction irrelevant, given [w]hat matters is whether it violates an individuals legitimate expectation of privacy. Therefore, it is not necessary to speculate whether a beeper searches or seizes anything); but see, e.g., Connolly, 454 Mass. at 808 (concluding based on two separate analyses that the installation and use of the GPS device in the circumstances of the case was a seizure requiring a warrant); cf. id. at 833 (Gants, J., concurring) (disagreeing with the majoritys seizure conclusion[i]n our constitutional jurisprudence, this invasion is better characterized as a search and noting that the distinction is not merely academic).) Courts rarely or seriously regard the actual physical contact that occurs when law enforcement agents install GPS devices. That is unfortunate, given that the case for a Fourth Amendment seizure may be stronger than for a search. Before Knotts, the Fifth Circuit in United States v. Holmes, 521 F.2d 859 (5th Cir. 1975) affd en banc, 537 F.2d 227 (5th Cir. 1976), determined that warrantless installation and monitoring of a beeper violated the Fourth Amendment, as the governmental beeper surveillance was akin to it hiding an agent in the trunk of the tracked vehicle. (Id. at 865 n.11.) The Fifth Circuit found

Published in Criminal Justice, Volume 26, Number 2, Summer 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

irrelevant the presence or absence of a physical intrusion into the interior of the car. In Knotts, 460 U.S. at 27879, the tracking device was also not attached to the surveilled vehicle, but rode within a container that was then placed inside the tracked vehicles. There, counsel did not challenge the attachment of the beeper to the container as a seizure, nor did he challenge the governments conduct interfered with his clients possessory rights in the purchased container. Accordingly, the court did not answer the question does the governments attachment of a beeper to an item purchased by the suspect constitute either a search or a seizure? Justice Brennan revealed that Knotts would have been a much more difficult case if respondent had challenged . . . [the beepers] original installation. Justice Stevens agreed. (Id. at 288 (Stevens, J., dissenting).) In Karo, one year later, the court, again, failed to address the installation as seizure issue, as the vendors consent obviated the Fourth Amendment warrant requirement. Still, the majority noted the potential for government abuse. Justice Stevens was more pointed and deemed the beeper attachment a seizure. When the Government attaches an electronic monitoring device to [respondents] property, it infringes that exclusionary right; in a fundamental sense it has converted the property to its own use. Justice Stevens noted that, surely, such an invasion and transformation qualifies as an interference with possessory rights, as the right to exclude (which attached as soon as the can of ether that respondents purchased was delivered) had been infringed. (See Karo, 468 U.S. at 729 (Stevens, J., dissenting).) Still, seizure-based challenges to the governments use of GPS surveillance is a territory largely unexplored and unasserted. That is unfortunate. Given that both the Knotts concurrence and Karo dissent articulated seizure as a sound constitutional position, some courts still reject the notion that governmental attachment of a GPS device is properly deemed a seizure, as the device may not have affected the cars driving qualities, draw power from the cars engine, or battery, did not intrude upon or occupy area that might otherwise have been occupied by passengers or packages, or alter the vehicles appearance. (See, e.g., United States v. Garcia, 474 F.3d 994, 99697 (7th Cir. 2007), where the majority characterized the seizure argument as untenable, given that the attached GPS device did not seize the tracked vehicle in any intelligible sense of the word.) Even when courts acknowledge that there is a level of intrusion based upon the physical nature of the devices attachment to a GPS-monitored vehicle, they often remain unmoved by the level of intrusion suffered, characterized quite often as minimal and justified, given the governments reasonable suspicion of the ve-

hicles connection to criminality. (See, e.g., United States v. Michael, 645 F.2d 252, 256 (5th Cir. 1981) (rejecting suppression motion and holding the minimal intrusion involved in the attachment of a beeper to Michaels van, parked in a public place, was sufficiently justified so as to satisfy any of Michaels fourth [sic] amendment expectation of privacy concerns); Burton, 698 F. Supp. 2d at 130708 (citing Michael and rejecting defendants claim that attachment raised Fourth Amendment concerns, as the intrusion caused by affixing the magnetic tracking device . . . is minimal and reasonable suspicion . . . justified the placement and monitoring of the beeper).) According to one court, although the idea of a government agent touching ones vehicle may raise eyebrows, it does not raise any cognizable constitutional concerns. (Sparks,750 F. Supp. 2d at 381.) With few exceptions, state courts also either reject or ignore the distinction and its constitutional possibilities. (See, e.g., Stone, 941 A.2d at 124950 (finding Knotts controlling and its analysis directly applies to GPS device tracking, simply the next generation of tracking science and technology); Osburn v. State, 44 P.3d 523, 526 (Nev. 2002); Foltz v. Commonwealth, 698 S.E. 2d 281, 28688 (Va. Ct. App. 2010, rehg en banc granted, 699 S.E. 2d 522 (2010).) Despite this reluctance, parties should not automatically assume that simply because the GPS device is attached to a vehicles exterior in a nonintrusive manner that there is no legitimate Fourth Amendment seizure argument to decide. Accordingly, parties and courts, federal and state, should pay attention to the nature and degree of the devices attachment; how the government attaches the device has mattered. For example, in Connolly, 454 Mass. 808, the Massachusetts court proved how fruitful exploration of the attachment as seizure argument may be. There, the Supreme Judicial Court of Massachusetts found two rationales upon which to find government installation of its GPS device constituted a seizure that required a warrant under the states constitution. First, the government took approximately one hour to install and test its GPS-enabled device to the minivans battery, relying upon the vehicles electrical system to power the governments device. (Id. at 811.) Additionally and irrespective of whether the device drew power from the engine or its own batteries, the majority also found the installed device constituted a seizure because it meaningfully interfered with the defendants possessory interest in the vehicle. A seizure occurred not by virtue of the technology employed, but because the police use private property (the vehicle) to obtain information for their own purposes: [i]n addition, as apart from the installation of the GPS device, the police use of the defendants mini-

Published in Criminal Justice, Volume 26, Number 2, Summer 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

van to conduct GPS monitoring for their own purposes constituted a seizure. When an electronic surveillance device is installed in a motor vehicle, be it a beeper, radio transmitter, or GPS device, the governments control and use of the defendants vehicle to track its movements interferes with the defendants interest in the vehicle notwithstanding that he maintains possession of it. The owner of property has a right to exclude it from all the world . . . and the police use infringes that exclusionary right. (Id. at 823 (citations and internal quotation marks omitted).) Similarly, in People v. Xinos, 192 Cal. App. 4th 637 (Cal. App. 2011), the California court found reasonable the defendants subjective expectation of privacy in his SUVs manufacturer-installed SDM and its digital data, which were clearly an internal component of the vehicle itself, which is protected by the Fourth Amendment. The SUV was equipped with a manufac-

of access, manipulation, and usage may also be held sufficiently intrusive to constitute a seizure. Again, thus far, no court seems to take more than passing notice of the many times the government may access the GPS device to maintain its monitoring abilities. (See, e.g., Marquez, 605 F.3d at 607 (noting law enforcement replaced the battery seven times); United States v. Walker, 2011 U.S. Dist. LEXIS 13760 at *2 (noting police placed the device on the suspects vehicle four separate times); Pineda-Moreno, 591 F.3d at 1213 (installing several mobile tracking units and a GPS device on defendants vehicle seven different times).) It, nevertheless, may be worthy of pursuit, as the Fourth Amendment does not ignore de minimus intrusions, and if an intrusion violates an individuals legitimate expectation of privacy, it is not de minimus. Presuming that device maintenance is too minor an intrusion to constitute a search may beg the constitutional question, as an intrusion is minor only if it does not violate protected individual privacy.

Note the times and ways in which the government interfaces with the surveilled vehicle to change the devices batteries, replace a unit, and detach/reattach the same or other devices to the car.
turer-installed SDM, which received data from various inputs related to the vehicles restraint systems before, during, and after an accident. Officers downloaded data from the SDM to produce a crash data retrieval report, relied upon by the prosecution at trial, where the defendant was convicted of, inter alia, vehicular manslaughter and driving while impaired. On appeal, the states attorney general argued that, under Knotts, the defendant had no reasonable expectation of privacy in the SDM data, given that his SUV traveled in public and others could observe its speed and movements. The California court rejected the governments analysis. Despite the diminished expectation of privacy in a vehicle, the governments observations of the SDM data was a search. According to the court, the defendants SUV was internally producing data for its safe operation. That exceedingly precise data was not being exposed to the public or being conveyed to any other person. (Id. at 655.) Given both the Connolly and Xinos analyses, parties are also advised to identify and note the times and ways in which the government interfaces with the surveilled vehicle to change the devices batteries, replace a unit, and detach/reattach the same or other devices to the car. Though no federal court has yet held, such high levels (Bailey, 628 F.2d at 940; cf. See also United States v. Jones, 625 F.3d 766, 77071 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (urging consideration of the important and close question: whether governmental touching or manipulating of the outside of ones car is a physical encroachment within a constitutionally protected area.)

Toward a Mosaic Theory of Fourth Amendment Privacy?

Justice Brandeis contemplated in his Olmstead dissent that constitutional provisions such as the Fourth Amendment possess the capacity of adaptation to a changing world. (Olmstead v. United States, 277 U.S. 438, 472 (1928) (Brandeis, J., dissenting).) Recently, Justice Scalia chimed in on this very same issue, and scolded his colleagues for their failure to keep pace with innovation and technology: [a]pplying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Courts implication [ ] that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary

Published in Criminal Justice, Volume 26, Number 2, Summer 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

to resolve the case and guide private action)or that we should hedge our bets by concocting case-specific standards or issuing opaque opinionsis in my view indefensible. The-times-they-are-a-changin is a feeble excuse for disregard of duty. (City of Ontario v. Quon, ___ U.S. ___, 130 S. Ct. 2619, 2635 (2010) (Scalia, J., concurring).) Despite judicial hesitancy and rapidly changing technology, lower courts and counsel are managing to take initial stepssome tentative, others boldin applying current Fourth Amendment law to modern surveillance technology. In Weaver, 909 N.E. 2d 1195, the facts are as follows. On December 21, 2005, between one and three oclock in the morning, a New York State Police Department investigator crawled under Scott Weavers Dodge van, parked on a street outside his home, to attach a magnetized, battery-operated GPS-enabled device. The device remained attached to Weavers bumper for 65 days straight, monitoring and calculating the vans every movement, location, travel time, trip length, and repose around-theclock. Ultimately, the government prosecuted Weaver and another individual; both were charged with two burglaries that occurred in the same city (Latham, New York) on the same date (Christmas Eve, 2005). At trial, the court denied Weavers motion to suppress the GPS evidence. The jury found Weaver guilty of third degree burglary and attempted second degree grand larceny. (Id. at 119596.) The state prevailed at the intermediate appellate court level; the defendants conviction was affirmed. Before the New York Court of Appeals, Weaver renewed his challenge regarding admissibility of electronic surveillance evidence under the Fourth Amendment and New York Constitution Article I, Section 12 (the states Fourth Amendment analogue). As a result of days, weeks, and months worth of surveillance, the court found there was a highly detailed profile, not simply of where we go, but by easy inference, of our associations political, religious, amicable and amorous, to name only a fewand of the pattern of our professional and vocation pursuits. (Id. at 11991200.) This information, for the Weaver majority, was distinguishable from what the government gained in Knotts via a tracking beeper. The New York Court of Appeals deemed GPS satellite surveillance vastly different, exponentially more sophisticated and powerful, and facilitate[s] a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period of time. Notwithstanding the lesser expectation of privacy one has while in public and in the exterior of ones vehicle, New Yorks high court determined that the defendant had and retained a residual privacy expec-

tation in his movements 24 hours a day, which included his public movements. Although this residual interest is perhaps small, it was sufficient to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures. (Id. at 1201.) However, as the Supreme Court (nor any other federal court at the time) had not addressed the matter, the New York Court of Appeals declined to decide the Fourth Amendment question, finding for Weaver that warrantless installation and use of a GPS device to monitor an individuals whereabouts constitutes an unreasonable illegal search in violation of Article I, Section 12 of the New York State Constitution. (Id. at 1203.) The state courts analysis has come to be known as the Mosaic Theory of GPS Surveillance. Shortly after Weaver was decided, the US Court of Appeals for the District of Columbia Circuit officially split the federal circuits when it employed the Mosaic Theory in United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010), en banc rehg denied, 625 F.3d 766 (D.C. Cir. 2010), cert. denied, __ U.S. __, 131 S. Ct. 671 (2010). There, a joint task force involving local police officers and FBI agents began an investigation of two men, Jones and Maynard, suspecting them of narcoticsrelated crimes. Part of the governments investigation included law enforcement placement of a GPS-enabled surveillance device on Joness vehicle. Though the task force had received a court order authorizing the devices installation, they failed to install the device within the court-authorized timeframe. Instead, they attached it in the wrong jurisdiction, after the court order had expired. Nevertheless, the task force monitored Jones for one month. At trial, both men were eventually charged, inter alia, in a superseding indictment with one count of conspiracy with intent to distribute and to possess with intent to distribute a large amount of cocaine and cocaine base. Jones moved to suppress the GPS-device surveillance evidence; his motion was denied. Both were found guilty by a jury. (Id. at 615 F.3d at 549.) On appeal, the D.C. Circuit refused to read Knotts as standing for the proposition that individuals have no reasonable expectation of privacy in [their] movements whatsoever, world without end. (Id. at 557.) Instead, the D.C. Circuit determined that [p]rolonged surveillance reveals types of information not revealed by shortterm surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. (Id. at 562.) The Maynard majority determined further that the whole of a persons movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. Because the whole reveals far more than the individual move-

Published in Criminal Justice, Volume 26, Number 2, Summer 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

ments in comprises, it follows and is reasonable for an individual to expect each of [her] movements to remain disconnected and anonymous, i.e., to remaindespite public presencegenerally anonymous is a privacy interest that society is prepared to accept as reasonable. (Id. at 563 (citations omitted).) With Knotts rendered virtually impotent, the D.C. Circuit applied a newly invigorated Katz to the facts before it. Under prong one of Katz, two considerations compelled the court that the totality of Joness movements over the course of the governments month-long surveillance was not exposed to the public: 1) unlike a single journey, the whole of ones movements over the course of a month is not actually exposed to the public and 2) the whole of ones movements over the course of one month is not constructively exposed, even though each individual movement is. (Id. at 558.) The court announced that when it comes to privacy, then, the whole may be more revealing than the part. Here, police used their GPS device not to track Joness short, separate, individual trips or movements from one place to another; instead, they tracked his movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place to place. The Maynard court further explained that [w]hat may seem trivial to the uninformed, may appear of great moment to the one who has a broad view of the scene (citations omitted); one who knows everything about anothers travels can successfully deduce a panoply of information about habits, activities, character, sloth, and even political leanings. (Id. at 562.) Regarding Katzs second prong, the D.C. Circuit looked to sources outside the Fourth Amendment to determine legitimate expectations of privacy, specifically state law. The court made clear that state laws are not conclusive evidence of nationwide societal understandings; however, the laws were indicative. The D.C. Circuit reviewed statutes in, e.g., California, Hawaii, Oklahoma, and South Carolina that declared electronic tracking without that persons knowledge a violation of an individuals reasonable expectation of privacy, thereby requiring governments to obtain a warrant. Per the D.C. Circuit, the multistate review led to only one conclusion: [s]ociety recognizes [the accuseds] expectation of privacy in his movements over the course of a month as reasonable. Judge Ginsburg, writing for the panel, held that the governments month-long, around-the-clock warrantless GPS surveillance unconstitutionally defeated Joness reasonable expectation of privacy. (Id. at 56668.)

Strategies for Going Forward

Maynard and Weaver are exciting decisions that, undoubtedly, will, in part, affect the analysis of pro-

longed warrantless GPS surveillance when the matter reaches the US Supreme Court, which it recently has. (See United States v. Antoine Jones, No. 10-1259, U.S. Department of Justice Petition for a Writ of Certiorari (April 15, 2011), located at http://www.justice.gov/osg/ briefs/2010/2pet/7pet/2010-1259.pet.aa.pdf (last visited May 14, 2011); see also Pineda-Moreno v. United States, No. 10-7515, Brief for the United States (April 15, 2011) (requesting stay of petition for a writ of certiorari, pending disposition of Jones/Maynard).) Until the court accepts certiorari in Jones or another case, parties and courts should employ their own belt and suspenders analysis of how GPS surveillance data should be treated, perhaps citing the Mosaic Theorycurrently good precedent in one state and one federal circuitwhile, simultaneously employing more traditional Fourth Amendment analyses. The decisions are relatively new and, outside of New York and the D.C. Circuit, should be invoked with caution, as there has already been a strong negative reaction. (See, e.g., Recent Cases: Constitutional LawFourth AmendmentD.C. Circuit Deems Warrantless Use of GPS Device an Unreasonable Search, 124 Harv. L. Rev. F. 827, 831 (January 2011) (asserting the D.C. Circuits Mosaic Theory should never have occurred . . . [it] was inconsistent with Supreme Court precedent. . . . [l]argely misconstrued Knotts, and completely ignored the closely related case of Karo, resulting in an analysis untethered from past precedent and unwieldy as future precedent); see also United States v. Walker, 2011 U.S. Dist. LEXIS 13760 (W.D. Mich. 2011) *810 (rejecting Maynard as out of step with the great weight of the law from other federal circuits [that] reject [Maynards] view, including the Seventh and Ninth Circuits, several district, and a number of state courts). Cf. Weaver, 909 N.E. 2d at 120405 (Smith, J., dissenting) (dismissing the majoritys decision as illogical and doomed to fail, as well as imposing a totally unjustified limitation on law enforcement); United States v. Cuevas-Perez, 2011 U.S. App. LEXIS 8675 at *78 (7th Cir. 2011) (comparing Cuevas-Perezs factually straightforward case of a single trip and 60 hours of GPS surveillance with Maynards uninterrupted use of a GPS device for a period lasting 28 days).) But see, e.g., id. at *42, *56 (Wood, J., dissenting) (criticizing the majoritys failure to follow the D.C. Circuits thoughtprovoking and thoroughly reasoned Fourth Amendment analysis); United States v. Narrl, 2011 U.S. Dist. LEXIS 45595 at *17 (D. S. Car. 2011) (finding Knotts and Walker controlled, yet noting that [m]uch of the reasoning in Maynard is attractive).) Do not forget to look to state law, even when assessing Fourth Amendment privacy interests and protections. Like federal courts, state courts are also divided over

Published in Criminal Justice, Volume 26, Number 2, Summer 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

whether continuous GPS device monitoring constitutes a search under their respective constitutions. Counsel on both sides of the aisle should check the states constitution and codified law. State courts are free to afford broader protections under their own constitutions (versus the federal Constitution). (See Michigan v. Mosley, 423 U.S. 96, 120 (1975) (Brennan, J., dissenting); see also, e.g., Weaver, 909 N.E.2d at 1212 (surely, we may establish a greater level of protection under our State Constitution for those rights than the Supreme Court recognizes under a parallel provision of the national Constitutionequally, there is no doubt whatsoever about that); State v. Campbell, 306 Ore. 157, 17273 (1988) (noting that warrantless GPS-enabled surveillance is precluded by Oregons constitution; attachment and use of a beeper is a search and seizure under the Oregon constitution); State v. Jackson, 76 P.3d 217, 220 (Wash. 2003) (en banc) (finding GPS-enabled surveillance a search under Washington States constitution).)) But, be careful. The jurisdiction may codify a reasonable expectation of privacy in the information provided

by a GPS device; however, it may not cover the particular device or the facts of a particular case. (See, e.g., Xinos, 192 Cal. App. 4th 653 (finding California section 9951 created privacy rights in cars black box, but not the defendants 2002 SUV, as the law applied to vehicles manufactured on or after July 1, 2004).)

Conclusion

Until the Supreme Court does speak, successful challengesin the form of court suppression of the GPS evidence and its fruitswill depend upon the jurisdictions precedent, the actual (versus potential or hypothetical) injury to the movant, the source of the right (US Constitution, state constitutional law, or legislatively codified law) and, as always, counsels willingness to test the doctrines reach. Thus far, federal circuits are split and state courts are also divided. Holdings diverge based on the facts, as well as the jurisdictions interpretation of Katz, Knotts, and Karo, as well as its ability to liken or distinguish GPS and beeper surveillance under its own precedent and state law. n

Published in Criminal Justice, Volume 26, Number 2, Summer 2011. 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.