October 20, 2010
Two very recent decisions by the Court of Appeals of Virginia and the U.S. Court of Appeals for the District of Columbia with regard to the use of Global Positioning System ("GPS") tracking devices as surveillance tools by police have once again focused attention on the important issues that are presented in such cases and have highlighted the split of authority with regard to these issues. In Foltz v. Commonwealth, 698 S.E.2d 281 (Va. Ct. App. 2010), reh'g en banc granted, No. 0521‑09‑4, 2010 WL 3743911 (Va. Ct. App. Sept. 23, 2010), the court held that the warrantless and surreptitious placement of a GPS tracking device by police officers on the bumper of the defendant's automobile was not an unconstitutional search or seizure and that the warrantless, week-long use of the device to track the movements of the automobile was itself not a violation of the Fourth Amendment. The opposite result was reached in United States v. Maynard, Nos. 08‑3030, 08‑3034, 2010 WL 3063788 (D.C. Cir. Aug. 6, 2010), which placed greater emphasis on privacy concerns to find that the warrantless use of a GPS device was an unconstitutional search under the Fourth Amendment.
Practically everyone is familiar with the technology of GPS devices because retail GPS systems have become almost ubiquitous navigational aids in our automobile-centered culture. Through the interaction with multiple satellites, a GPS system can tell its user where on earth it is located within one or two meters. Law enforcement agencies have recognized the value of such systems and have used the technology to create GPS devices that transmit signals to officers to aid in maintaining surveillance over suspects. GPS tracking devices are both more advanced and more intrusive than older types of tracking devices because not only do they allow police to actively and remotely monitor the location of a suspect as he travels from place to place, but they also permit police to place the device on a vehicle, to direct their attention to other matters, and then to remotely call up data from the device to tell them (1) everywhere the vehicle has traveled since it was installed, and (2) the precise location of the vehicle at that very moment. The use of GPS tracking devices by police thus raises significant concerns about governmental invasion of privacy, and the use of this new technology creates challenges for courts that must decide how such devices are to be evaluated under the Fourth Amendment.
In Foltz, the defendant was a registered sex offender who became a suspect in a series of assaults that seemed to fit the pattern of his prior offenses. Police officers decided to monitor his movements by placing a GPS tracking device on the bumper of the van that had been provided to the defendant by his employer. They did so while the van was parked on a public street. After another sexual assault occurred, the officers checked the log of the GPS device and determined that the defendant had driven the van near the location of the offense at about the time that it took place. The officers then physically followed the defendant the next day and arrested him after seeing him attempt to sexually assault another victim.
Prior to trial, the defendant made a motion to suppress all evidence that had been collected by the officers after they attached the GPS device to the van that he was driving, arguing that the officers needed a search warrant before being allowed to attach the tracking device and before they could use it to track his movements. The trial court denied the motion, finding that the officers had reasonable suspicion to install the GPS device and that no invasion of privacy had taken place, because the device was simply technologically supplementing that information which the officers could have obtained by their own sensory perception by actually trailing him or following him for a period of time.
In affirming the ruling of the trial court, the Court of Appeals of Virginia rejected the defendant's argument that the Fourth Amendment barred the warrantless installation and monitoring of the GPS device. First, relying upon the decision of the U.S. Supreme Court in United States v. Karo, 468 U.S. 705 (1984), in which the Court had found that it was not an invasion of privacy for police officers to place tracking devices in containers of ether that were then purchased by the defendant, who in turn placed the containers in his vehicle, the Virginia court held that the installation of the GPS device did not relay any private information to the police and thus was not a search that implicated the Fourth Amendment. The court emphasized that the defendant's van was parked in a public place and that the officers had not entered the van to install the tracking device.
The Virginia court also found that the installation of the GPS device was not a seizure of the van, rejecting the defendant's argument that the placement of the device on the bumper changed the nature of the vehicle. Again relying on Karo, the court found that a seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property. It then held that the GPS device in no way interfered with the defendant's ability to operate the vehicle and was at most a minimal, and not meaningful, interference with the defendant's possessory interest in the van.
Finally, the court in Foltz held that the actual tracking of the van did not violate any expectation of privacy, as the court refused to recognize any privacy interests of vehicles being driven on public roads. The court noted that in United States v. Knotts, 460 U.S. 276 (1983), the Supreme Court had held that society does not recognize that vehicles on public streets should have any expectation that they will not be continually observed or tracked. In Foltz, the court found, a police officer could have followed the van and recorded its movements without violating any expectation of privacy. With regard to the tracking of the van as it was on the private property of the defendant's employer, the court held that the defendant had failed to show any subjective expectation of his own privacy that was violated by the GPS tracking of his employer's van when it was parked at his employer's place of business.
The approach of the Court of Appeals of Virginia in Foltz stands in contrast to that taken by the D.C. Circuit in Maynard. In Maynard, decided less than a month before Foltz, the court held on somewhat different facts that the warrantless placement of a GPS device on the defendant's automobile and the subsequent tracking of his movements was indeed a search for purposes of the Fourth Amendment. The court rejected the argument that the Supreme Court's ruling in Knotts controlled the outcome of the case, focusing on the more comprehensive nature of GPS monitoring and on the fact that it allows police officers to conduct extended surveillance of the movements of an individual. In short, the Maynard court found, the nature of GPS monitoring differs from previous methods of surveillance so greatly that different rules should apply to it, even though the monitoring of an individual at any given moment might be similar to more traditional forms of surveillance. In the words of the court:
First, unlike one's movements during a single journey [such as in Knotts], the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one's movements is not exposed constructively even though each individual movement is exposed, because that whole reveals moreCsometimes a great deal moreCthan does the sum of its parts.
2010 WL 3063788, at *10. In particular, the court found that a reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there. Rather, the court pointed out, a reasonable person expects each of those movements to remain disconnected and anonymous. Thus, because the GPS monitoring defeated that reasonable expectation of privacy, the court held that the government was obligated to obtain a search warrant before engaging in such monitoring.
The Foltz and Maynard decisions show the competing theories underlying the cases addressing the validity of warrantless GPS monitoring. In the federal courts, several courts have reached conclusions similar to those in Foltz, deciding 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. See United States v. Garcia, 474 F.3d 994 (7th Cir. 2007) (there was no search or seizure within the meaning of the Fourth Amendment when police placed a GPS tracking unit underneath the bumper of a vehicle driven by the defendant; the device did not affect the vehicle's driving qualities, did not draw power from the vehicle's engine or battery, did not take up room that might otherwise have been occupied by passengers or packages, did not alter the vehicle's appearance, and police could follow a car around or observe its route by means of cameras or satellite imaging without its being a search); United States v. Marquez, 605 F.3d 604 (8th Cir. 2010) (installation and use of a GPS tracking device on his vehicle's bumper for several months did not violate the defendant's Fourth Amendment rights in his prosecution for conspiracy to distribute marijuana; installation was not random or arbitrary, was noninvasive, and occurred when the vehicle was parked in public, it resulted from reasonable suspicion that the vehicle was involved in interstate transport of drugs, and the vehicle was not tracked while in private structures or on private lands); United States v. Pineda‑Moreno, 591 F.3d 1212 (9th Cir. 2010) (law enforcement agents' use of tracking device attached to defendant's vehicle to continuously monitor the location of vehicle for four months was not a "search" under Fourth Amendment; information agents collected using tracking device could have been obtained by simply following his car); United States v. Moran, 349 F. Supp. 2d 425 (N.D.N.Y. 2005) (under the Fourth Amendment, law enforcement officers' action of attaching a GPS device to defendant's vehicle, without a warrant, did not constitute a search or seizure; defendant had no expectation of privacy in the whereabouts of his vehicle on a public roadway). For similar recent state cases, see Osburn v. State, 44 P.3d 523 (Nev. 2002), in which it was held that the police use of a mobile tracking device does not infringe a reasonable expectation of privacy, and State v. Sveum, 2009 WI App 81, 769 N.W.2d 53, in which it was held that no Fourth Amendment search or seizure occurs when police attach a GPS tracking device to the outside of a vehicle while it is in a place accessible to the public and then use that device to track the vehicle while it is in public view.
On the other hand, a significant number of cases that have addressed the use of GPS tracking devices have adopted the reasoning of Maynard and have concluded that because of the intrusion on privacy rights inherent in the type of monitoring that may be done with such devices, a search warrant must first be obtained before conducting such monitoring. See, e.g., Commonwealth v. Connolly, 913 N.E.2d 356 (Mass. 2009) (police use of defendant's minivan to conduct GPS monitoring for their own purposes constituted a "seizure" under the state constitution, although the defendant was not deprived of the ability to drive the minivan; police asserted control over the vehicle by using the GPS device on the vehicle to track its movements and converted the minivan to their own use notwithstanding the defendant's continued possession, GPS tracking interfered with defendant's right to exclude others from his vehicle, and continual monitoring of the GPS data substantially infringed on defendant's use and enjoyment of his vehicle); People v. Weaver, 909 N.E.2d 1195, 1199-1200 (N.Y. 2009) (police officer's unconsented-to placement of GPS tracking device on defendant's car, and officer's subsequent retrieval of data indicating car's location over period of approximately two months, constituted "search" requiring warrant under New York Constitution; although defendant's reasonable expectation of privacy was diminished while in vehicle on public thoroughfare, that expectation was not reduced to zero, and no exigent situation justified officer's actions; prolonged GPS monitoring "yields . . . a highly detailed profile, not simply of where we go, but by easy inference, of our associationsCpolitical, religious, amicable and amorous, to name only a fewCand of the pattern of our professional and avocational pursuits"); State v. Campbell, 759 P.2d 1040 (Or. 1988) (holding that using any tracking device without a warrant or obviating exigency violates the state constitution); State v. Jackson, 76 P.3d 217, 224 (Wash. 2003) (en banc) (the installation of GPS devices for satellite tracking of defendant's vehicles involved "search and seizure" and required a warrant; unlike binoculars or a flashlight, the device did not merely augment the police officers' senses but provided a technological substitute for traditional visual tracking, and the possible intrusion into private affairs was quite extensive; "In this age, vehicles are used to take people to a vast number of places that can reveal preferences, alignments, associations, personal ails and foibles. The GPS tracking devices record all of these travels, and thus can provide a detailed picture of one's life.").
It should be noted that in addition to these cases, a number of state legislatures have enacted statutes that specifically prohibit the use of electronic tracking devices without a warrant. These statutes most certainly bring GPS devices within their scope. For example, California has made it unlawful for anyone but a law enforcement agency to "use an electronic tracking device to determine the location or movement of a person," has specifically declared that "electronic tracking of a person's location without that person's knowledge violates that person's reasonable expectation of privacy," and necessarily thereby requires a warrant for police use of a GPS. Cal. Penal Code § 637.7; see also Fla. Stat. '' 934.06, .42 (imposing civil and criminal penalties for the use of electronic tracking devices and expressly requiring exclusion of evidence produced by such a device unless obtained by the police acting pursuant to a warrant); Haw. Rev. Stat. §§ 803‑42, ‑44.7 (same); Minn. Stat. §§ 626A.37, .35 (same); Okla. Stat. tit. 13, §§ 176.6, 177.6 (same); 18 Pa. Cons. Stat. § 5761 (same); S.C. Code Ann. § 17‑30‑140 (same); Utah Code Ann. §§ 77‑23a‑4, ‑7, ‑15.5 (same).
Given the split of authority throughout the country on the validity of warrantless GPS monitoring, the conflict over the use of GPS devices may ultimately be resolved by the U.S. Supreme Court, perhaps in an appeal from Foltz or Maynard. Until the Court definitively addresses the new technology, defense attorneys may certainly argue that any warrantless use of GPS tracking is unconstitutional and requires the suppression of any evidence obtained as a result.