The United States Court of Appeals for the District of Columbia has struck down the warrantless placement of a GPS tracking device on a car. This case is causing some confusion in law enforcement circles because some officers are misinformed about the decision’s limited precedential authority. Though the recent decision creates a split in federal appellate courts — and sets up the issue for a possible decision by the United States Supreme Court — the court’s authority is limited to the District of Columbia, and thus the decision is not binding on the overwhelming majority of U.S. law enforcement officers.
Maynard worked for Jones as the manager of Jones’ Club Levels nightclub in Washington, D.C. In 2004 and 2005, a task force investigated Jones and Maynard for drug trafficking. The two men were indicted in October 2005. Jones and Maynard challenged officers’ investigative use of operated wiretaps, evidence seized during a traffic stop and evidence gleaned from a global positioning satellite (GPS) tracker placed on Jones’ car for approximately one month. Officers combined the GPS tracker data with cell phone records to create a picture of a traffic pattern that the prosecution claimed was strongly corroborative of drug trafficking.
Fourth Amendment Protections
The threshold question is whether Jones held a reasonable privacy interest in his movements, thus triggering Fourth Amendment protections. If there is no reasonable expectation of privacy in movements on public streets, then there is no search under Fourth Amendment principles. In United States v. Knotts, 460 U.S. 276 (1983), the Supreme Court held that police monitoring of a bumper beeper did not violate the Fourth Amendment because it did not provide officers with any information that could not have been gathered by physical surveillance of Knotts’ vehicle as he transported precursor chemicals from Minneapolis to a drug lab in a Wisconsin cabin. In Knotts, Justice Rhenquist observed that “nothing in the Fourth Amendment prohibited the police from augmenting the sensory facilities bestowed upon them at birth with such enhancement as science and technology afforded them in this case.”
Following the principle articulated in Knotts, three other federal appellate courts have held that the use of a GPS tracking device to monitor an individual’s movements in his vehicle over a prolonged period is not a search. Most recently, as reported earlier this year in Xiphos, the Ninth Circuit ruled in United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), that officers violated no expectation of privacy in attaching a GPS device to a car parked in a publicly accessible location and monitoring the movement. Three years ago, in United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), the Seventh Circuit held that there was no search when a GPS device was surreptitiously placed on the undercarriage, did not draw power from the car and did not impair the car’s operation or utility.
The Eighth Circuit also stated the use of a GPS device to track a truck used by a drug trafficking operation was not a search in United States v. Marquez, 605 F.3d 604 (2010), when the device was installed for a reasonable period of time and affixed when the vehicle was in a public location. Some courts impose a requirement for a warrant for monitoring based upon their respective state constitutions. People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009); State v. Campbell, 759 P.2d 1040 (Or. 1988). If the device is installed under the hood or within the car itself, or if officers must otherwise violate a legitimate expectation of privacy, a warrant to install is required. Federal agents are also restricted by federal rules of criminal procedure addressing tracker placement and monitoring. A few states have statutory limitations on tracker use.
The D.C. Circuit disagreed with its sister courts and other state and federal courts on the issue of whether placing and monitoring a GPS tracking device constitutes a search. The court reasoned that Jones’ movements were followed for an extensive period (24 hours a day for 28 days), giving a complete picture of his movements.
Judge Ginsburg (not to be confused with Supreme Court Justice Ginsburg) wrote: “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. A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”
Case Headed for Highest Court?
The disagreement between several federal appellate courts and some state appellate courts presents the type of criminal procedure case that the United States Supreme Court is likely to consider and decide. It is likely that prosecutors are even now considering petitioning the Supreme Court to review this case. Questions about the reasonable expectation of privacy in electronic data that reveals movement portend broader application than vehicle GPS tracking. Federal law requires cell phone manufacturers to include a GPS chip to facilitate enhanced 911 emergency services.
In a novel application of cell phone GPS tracking, one prosecutor used a bank robbery suspect’s phone records to show that the suspect was in close proximity to other identified suspects during the robbery. That case is now pending before the Third Circuit appellate court. Other courts are considering whether a warrant is required to download history from a GPS system in a seized vehicle.
Though the D.C. Circuit stands in the minority on this issue, recent search and seizure decisions from the United States Supreme Court, coupled with the appointment of a justice with a relatively unknown history, make any prediction of the outcome uncertain at best.