Supreme Court Rules On GPS Trackers: Is It 1984 Yet? Legal Question of the Week Vol. 5, Number 2 January 27, 2012

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1 Supreme Court Rules On GPS Trackers: Is It 1984 Yet? Legal Question of the Week Vol. 5, Number 2 January 27, 2012 Brian Beasley Guy With Two Big Brothers and Legal Adviser, HPPD It was 1949 when George Orwell 1 published his classic novel 1984 about a future world where all citizens were under constant surveillance at all times by a being called Big Brother. Orwell was a few decades too early, 2 but I wonder what he would think of the fact that inexpensive technology now exists to enable a government to constantly track the movements of its citizens. Orwell wrote in a time where satellites orbiting the earth and phones you could carry around in your pocket were things dreamed of only in science fiction. As we enter 2012, we almost accept that the GPS features of our smartphone or the OnStar device in our car can be used to locate us at any time. Security cameras and closed-circuit video monitoring is commonplace and widespread. Against this backdrop, our country s courts are faced with the task of interpreting what a document written in the 18 th century means when applied to technologies never envisioned by the founding fathers that wrote it and debated it. As you no doubt know by now, the U.S. Supreme Court issued a ruling this week in a case dealing with the use of GPS trackers to track a suspect for an extended period of time. In United States v. Jones, 3 the Court ruled that installing a GPS tracker onto a vehicle for the purpose of obtaining information constitutes a search under the Fourth Amendment. As a lawyer, this is a fascinating case which delves deeply into the theoretical underpinnings of the Fourth Amendment. If I were writing this update for lawyers, I would dive right into that discussion. Fortunately, I m writing for law enforcement officers, who are much more interested in the practical questions of what they can do and how they can do it. So I m going to attempt to boil this down and tell you what the Court said and, perhaps more importantly, point out what the Court didn t say or hasn t ruled on yet. 1 Real name: Eric Arthur Blair, born June 25, 1903 and died January 21, 1950, just seven months after 1984 was published. 2 I can t fault Orwell for predicting the future would come more quickly than it actually did. Didn t we all think we would be driving around in flying cars by 2012? I remember writing one of those Where Will You Be in 30 Years? papers in middle school and I thought I would be living on the moon and flying a starfighter by now. Of course, that might have had something to do with the fact that I had watched Star Wars about 30 times by then U.S. (2012).

2 THE FACTS In 2004, Antoine Jones was the owner and operator of a nightclub in the District of Columbia when police starting suspecting him of trafficking in cocaine. Based on information gathered through their investigation, they applied for and received a warrant authorizing them to place a tracking device on the suspect s car. The warrant permitted installation of the device within 10 days inside the District. Unfortunately, the agents didn t install the tracker until 11 days later and installed it in the state of Maryland, meaning they were no longer covered under the protection of the warrant. Over the next 28 days, they tracked the vehicle s movements and obtained more than 2,000 pages of information from the device. The data connected Jones to a stash house that contained $850,000 in cash, 97 kilograms of cocaine and 1 kilogram of cocaine base. He was convicted of conspiracy charges and sentenced to life in prison. THE SUPREME COURT RULING On appeal, the U.S. Supreme Court unanimously agreed that the use of the GPS tracking device constituted a search under the Fourth Amendment. However, they were almost evenly split down the middle on the reason why. Most (if not all) of the Fourth Amendment cases decided since have revolved around the idea that a violation occurs only where there is a violation of the person s reasonable expectation of privacy. 5 Prior to that time, the protections of the Fourth Amendment were rooted more in the understanding that a person s property rights in their persons, houses, papers, and effects 6 could not be trespassed upon by the government. 7 Most legal scholars believed that the reasonable expectation of privacy test had replaced this trespass-based rule in the present day. The majority opinion of five Justices 8 in Jones, however, states that this reasonable expectation of privacy question did not replace the trespass-based test that 4 This was the year that Katz v. United States, 389 U.S. 347 (1967) was decided and gave rise to the reasonable expectation of privacy idea. 5 A reasonable expectation of privacy exists where a person has an actual expectation of privacy that society objectively recognizes as a reasonable one. 6 The Fourth Amendment by its text protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. 7 For example, using this trespass analysis, it was a violation of the Fourth Amendment when private conversations were monitored by inserting a spike mike through the wall of the house (Silverman v. U.S., 365 U.S. 505 (1961)) but no violation occurred when the conversations were monitored by taps placed on phone lines in the streets near the houses (Olmstead v. U.S., 277 U.S. 438 (1928)) or where a detectaphone was placed on the outer wall of defendant s office to monitor communications inside the office. (Goldman v. U.S., 316 U.S. 129 (1942)) 8 Justice Scalia wrote the majority opinion in which Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor joined.

3 came before it but instead added to it. 9 Under this trespass idea, the Court ruled that, by attaching the tracker and monitoring the vehicle s movements, the police physically occupied the vehicle, which was private property and therefore an effect protected by the Fourth Amendment, for the purpose of obtaining information. Because this made the attachment and tracking a search, the Court stated, there was no need to consider whether or not it amounted to a violation of the defendant s reasonable expectation of privacy. Therefore, under the Jones ruling, the doctrine for what constitutes a Fourth Amendment search is that a search occurs either when: (a) A trespass of one of the enumerated items of the Fourth Amendment ( persons, house, papers, or effects ) occurs and it occurs with the intent to find something or obtain information. -OR- (b) The government conduct violates the defendant s reasonable expectation of privacy. On the other hand, the concurring opinion of the other four Justices 10 stated that the reasonable expectation of privacy case had, in fact, replaced the trespass-based test and they believed that this case should have been decided on that question. However, the result would be the same because in their opinion the amount and length of the monitoring in this case violated the defendant s reasonable expectation of privacy. Unfortunately, there was little guidance on where the line would be between tracking that did not violate the reasonable expectation of privacy and tracking that did violate it. Justice Alito wrote, [w]e need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. WHAT THE COURT DIDN T SAY The Court did not expressly say that a search warrant would be required in these cases. Because they only answered the question of whether this was a search, they left open the question of whether such a search might be reasonable under the Fourth Amendment without first obtaining a warrant. For example, it is well settled that officers with probable cause may search the interior of a motor vehicle without first getting a warrant perhaps some similar argument could be made on these types of cases. The Court also left open the question of whether and when this type of tracking, if done without having to physically attach a tracker, would violate a person s reasonable expectation of privacy. For instance, if police had been able to activate an OnStar or 9 In 1984, the Ministry of Truth was tasked with the job of rewriting history to give the illusion that the Party was never wrong. For example, if Big Brother made a prediction that later turned out to be wrong, the Ministry would go back and rewrite the prediction so that any prediction previously made would appear accurate. Some would argue the majority opinion reminds them of this practice. 10 Justice Alito wrote this concurring opinion joined by Justices Ginsburg, Breyer, and Kagan, for those keeping score at home.

4 LoJack system in this particular car by electronic means, or if they had been able to follow the defendant by his cell phone GPS, it would seem no trespass would have occurred. But it appears that a majority of five Justices believe that tracking a subject this way for an extended period of time would violate his or her reasonable expectation of privacy. 11 MY ADVICE Based on what I ve read in the past several days since this opinion came out, the legal community is divided on whether the Court would hold that a search warrant is required to install and monitor GPS devices. To ensure the admissibility of any evidence gathered and avoid being sued civilly for alleged Fourth Amendment violations, 12 my advice is to get judicial approval before using these types of devices. Search warrants have some inherent problems in this arena, however. For example, it s a little hard to track someone after you ve had to read them the search warrant that permits you to put a tracking device on their car. That s why I suggest you apply for a court order instead of a search warrant. In an that Bob Farb sent out to police and sheriff s attorneys this week (and which I m sure he won t mind me sharing), he gives this good advice: I believe the better and more practical approach is to apply for a court order from a judge (preferably a superior court judge) with an affidavit establishing probable cause to install and monitor a GPS device for up to thirty days, and to apply for a new order after thirty days if necessary. I believe it is highly likely that our appellate courts would recognize a judge s inherent authority to issue such an order, which is the functional equivalent of a search warrant under the Fourth Amendment but without the procedural issues arising from our search warrant statutes. Concerning the return of the court order to the clerk s office, you could request (and if the judge agrees, insert in the court order) that the return to the clerk s office be delayed until completion of the installation and monitoring because public knowledge of the monitoring would adversely affect the execution of the installation and monitoring order and possibly pose a safety risk to the executing officers (if true). What about the trackers that we currently have in use or the pending cases where we ve already used GPS trackers? Well, I would advise that you retrieve any trackers that are currently in use without the permission of a search warrant or court order as soon as possible. I don t believe you will need a search warrant or court order to remove the 11 I say this because Justice Sotomayor, while joining Scalia s majority opinion, also wrote her own concurring opinion. Sotomayor stated that she agrees with the Alito opinion that a person s reasonable expectation of privacy is violated by long-term monitoring of the sort found in this case, and even implies that short-term monitoring may do so as well. 12 The legal office prefers gathering admissible evidence and avoiding civil lawsuits just for the record.

5 tracker unless removal requires that you enter a protected area, such as a garage. For the cases in which you have already used GPS trackers, any evidence you obtained as a result of the information gained from monitoring those trackers may be suppressed unless a successful argument is made that a warrantless search was still reasonable under the Fourth Amendment. Evidence obtained in other legal ways should not be suppressed simply because a tracker was employed at some point in the investigation. If you remove a tracker because of this decision and want to re-install and monitor it pursuant to a search warrant or court order, don t include facts in your affidavit that were discovered by the initial monitoring, because defense attorneys will argue that your second tracking was tainted by the previous unconstitutional monitoring. Instead, only use facts discovered before that tracking started. As technology continues to change, our courts will continue to struggle to keep up. This ruling has raised several questions about the government s ability to monitor people, even in public places, that will have to be answered in subsequent cases. But for now, getting a court order is the best protection for you and your investigation. And remember Big Brother is watching you. Brian T. Beasley Police Attorney High Point Police Department