The Lawletter Vol 37 No 10
A drug enforcement officer got a tip that a particular van owned by a glass company might be used to transport illegal drugs from one Arizona town to another. When the van was found parked in a public parking lot, the officer, without a warrant, placed a global positioning ("GPS") device on it so that the police could monitor the van's movements. The van did not move for several days, but then the GPS device showed that it had been driven to the second town, where physical surveillance confirmed the move and found the van. There the driver of the van, who was an employee of the van's owner, was stopped for speeding and having excessive window tint, at which time he was also arrested on an outstanding warrant. The arresting officer who made the stop also was aware of the GPS device and that the van was suspected of carrying marijuana. A search of the van uncovered bundles of the drug, and the driver was charged with, and ultimately convicted of, drug offenses.
In appealing his conviction on the drug charges, the defendant, Estrella, unsuccessfully argued that the placement and use of the GPS device on the vehicle he had been using constituted an unreasonable search under the Fourth Amendment. State v. Estrella, 286 P.3d 150 (Ariz. Ct. App. 2012). One contention—that the use of the GPS device had been a search under the trespass theory advanced in United States v. Jones, 132 S. Ct. 945 (2012)—was waived because it had not been raised in the trial court. The Jones Court had said that a trespass or an invasion of privacy, in combination with an attempt to find something or to obtain information, is a search within the meaning of the Fourth Amendment. In that case, attaching a GPS device to a vehicle owned by the suspect's wife but used exclusively by the suspect, and then using the device to monitor the vehicle's movements, was found to constitute a Fourth Amendment search.
Even in the absence of a trespass, a Fourth Amendment "search" occurs when the Government violates a subjective expectation of privacy that society recognizes as reasonable. A search does not occur unless an individual exhibits an expectation of privacy and society is willing to recognize that expectation as reasonable. Here, the court held that Estrella did not have a reasonable expectation of privacy in his employer's van or its movements on public roads; thus, placement of the GPS device and data collection was not a "search," since Estrella had no interest in the van when the GPS device was attached in the public parking lot and subsequently monitored by law enforcement. Estrella provided no evidence that he had had permission to drive the van at the time the GPS device was attached to it.
The court in Estrella also noted that generally, for Fourth Amendment purposes, a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his or her movements from one place to another and that this is especially true where the Government's monitoring of the person is only for a short period of time. See United States v. Knotts, 460 U.S. 276, 281 (1983) ("A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."; monitoring the signal of a beeper placed in a container of chemicals that was being transported to the owner's cabin did not invade any legitimate expectation of privacy on the cabin owner's part, and, therefore, there was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment). Thus, Estrella's argument based on an asserted expectation of privacy in his personal movements was to no avail.
Estrella also contended, as did a dissenting opinion in his favor, Estrella, 286 P.3d 150, ¶ 26 (Eckerstrom, J., dissenting), that even short‑term GPS monitoring may violate a person's expectation of privacy. For this contention, Estrella drew upon Justice Sotomayor's concurrence in Jones, which had noted that GPS monitoring may provide a "comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." 132 S. Ct. at 955 (Sotomayor, J., concurring). The use of the GPS device in Estrella was much more limited. Agents, upon reasonable suspicion that the van was to be used to transport drugs, installed and used the device to monitor the van's location and to initiate physical surveillance once it had arrived at its destination. Estrella provided no evidence disputing the trial court's finding that the length of time the van had been tracked was "not excessive or unreasonable." Estrella, 286 P.3d 150, ¶ 14.
Because it concluded that the use of the GPS device did not constitute a search as to Estrella, the court did not need to determine whether the warrantless but minimally intrusive use of GPS tracking for the period of time involved was reasonable and permissible when based on reasonable suspicion. And because the argument was not presented in the case before it, the court did not address the hypothetical situation Justice Sotomayor's observation had suggested, in which GPS tracking is used to aggregate large amounts of personal data for a much longer period of time or on a purely arbitrary basis. The determination of whether that type of surveillance may intrude on a person's reasonable expectations of privacy and, accordingly, run afoul of constitutional standards was reserved until the issue was properly presented in another case.