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GPS Tracking Requires a Warrant

Thursday, February 4, 2016

By Larry E. Holtz, Esq.

Source: Holtz Learning Centers

Recently, in United States v. Jones, 132 S.Ct. 945 (2012), the Court held that the attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, requires a warrant, for such actions constitute a “search” within the meaning of the Fourth Amendment.

Defendant Antoine Jones, “owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI and Metropolitan Police Department task force.” Officers employed various investigative techniques, including applying for a warrant authorizing the use of an electronic tracking device on the Jeep Grand Cherokee used by Jones. “A warrant issued, authorizing installation of the device in the District of Columbia and within 10 days.”

“On the 11th day, and not in the District of Columbia but in Maryland, agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used the device to track the vehicle’s movements.” Through the use of various signals from multiple satellites, “the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.” Due to the location and untimely nature of the warrant’s execution, however, the courts treated this as a “warrantless use” of the GPS device.

The Government ultimately obtained a multiple-count indictment charging Jones and several co-conspirators with various drug-related offenses.

At trial, the prosecution introduced the GPS-derived locational data, “which connected Jones to the alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base.” Jones was convicted, but the District of Columbia Circuit Court of Appeals reversed.

Agreeing with the Court of Appeals, the United States Supreme Court ruled that the admission of evidence obtained by the “warrantless” use of the GPS device violated the Fourth Amendment, for “the Government’s installation of a GPS device on [the] target’s vehicle, and its use of that device to monitor the vehicle’s movements,” constituted an illegal “search.”

Preliminarily, the Court pointed out that the Fourth Amendment safeguards “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” And, according to the Court, “it is beyond dispute that a vehicle is an ‘effect’ as that term is used in the Amendment.” Said the Court:

"It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.  We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted."

During the course of this appeal, the Government contended that “no search occurred here, since Jones had no ‘reasonable expectation of privacy’ in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all.” (citing Katz v. United States, 389 U.S. 347 (1967)). Rejecting that contention, the Court said:

"Jones’s Fourth Amendment rights do not rise or fall with the Katz [reasonable expectation of privacy] formulation. * * * Katz did not did not erode the principle “that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” * * *

During the course of its opinion, the Court distinguished two cases in which it previously rejected Fourth Amendment challenges to “beepers”— electronic tracking devices that represent another form of electronic monitoring.  The first case, United States v. Knotts, 460U.S. 276 (1983), upheld the use of a “beeper” that “had been placed in a container of chloroform, allowing law enforcement to monitor the location of the container.” The Court determined that “there had been no infringement of Knotts’ reasonable expectation of privacy since the information obtained— the location of the automobile carrying the container on public roads, and the location of the off-loaded container in open fields near Knotts’ cabin—had been voluntarily conveyed to the public. * * * The beeper had been placed in the container before it came into Knotts’ possession, with the consent of the then-owner[,]” and “Knotts did not challenge that installation.”

In the second “beeper” case, United States v. Karo, 468 U.S. 705 (1984), the Court “addressed the question left open by Knotts, whether the installation of a beeper in a container amounted to a search or seizure. * * * As in Knotts, at the time the beeper was installed, the container belonged to a third party, and it did not come into possession of the defendant until later.  Thus, the [main issue] was whether the installation ‘with the consent of the original ownerconstitute[d] a search or seizure . . . when the container is delivered to a buyer having no knowledge of the presence of the beeper.” The Court held that it did not. The Government “came into physical contact with the container only before it belonged to the defendant Karo; and the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo’s privacy. * * * Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location.”

Unlike what occurred in Knotts and Karo, “Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing. * * * ‘[T]he officers in this case did more than conduct a visual inspection of [Jones’] vehicle[.]’ * * * By attaching the device to the Jeep, officers encroached on a protected area.” That action, said the Court, constituted “a classic trespassory search.” When the Government “physically invades personal property” here, a physical intrusion on Jones’ Jeep “to gather information, a search occurs.” Since that search was performed without a valid warrant, it constituted a violation of the Fourth Amendment.

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