Anne Hemenway—Senior Attorney, National Legal Research Group
When a spouse places a Global Positioning Systems ("GPS") device in the other spouse's vehicle without consent to monitor that spouse's movements and position around town, the admissibility of the GPS data in the divorce trial is likely to be challenged. In United States v. Jones, 565 U.S. 400 (2012), the United States Supreme Court held that a GPS tracing device is a "search" under the Fourth Amendment to the United States Constitution, and absent a warrant allowing for the device to be used, data from the GPS device will be considered inadmissible. Further, in Carpenter v. United States, 138 S. Ct. 2206 (2018), the United States Supreme Court held that the Fourth Amendment protections against search and seizure also requires the government to obtain a search warrant before acquiring cell phone data, which the Court analogized to GPS tracking data. The Court recognized that "individuals have a reasonable expectation of privacy in the whole of their physical movements. Allowing government access to cell-site records—which 'hold for many Americans “privacies of life,”’ . . . contravenes that expectation." Id. at 2209-10.
In the civil context, however, the admissibility of unauthorized GPS devices is not so clear. The "exclusionary rule" precluding the admissibility of evidence derived from an illegal search or seizure usually only applies in criminal cases. See County of Henrico v. Ehlers, 237 Va. 594, 379 S.E.2d 457 (1989) (holding that the Fourth Amendment exclusionary rule should not be extended from criminal cases to civil cases).
To address this situation, some states have enacted statutes which specifically preclude the admissibility of evidence obtained illegally by the use of an electronic device. See Conn. Gen. Stat. Ann. § 52-184a. In addition, some courts, in states where the common law tort of invasion of privacy is recognized, have examined whether a GPS search violates a person's right to privacy. In Villanova v. Innovative Investigations, Inc., 420 N.J. Super. 353, 21 A.3d 650 (App. Div. 2011), the court held that no invasion of privacy was shown and that a person traveling in an automobile has no reasonable expectation of privacy. It is possible that this conclusion could be challenged, however, in light of the Supreme Court's recent views on a person's expectations of privacy in Carpenter and the Court's holding that "individuals have a reasonable expectation of privacy in the whole of their physical movements."The use of GPS devices in any civil proceeding, including divorce proceedings, is an evolving area of law involving evidentiary rules and concepts, privacy considerations discussed in criminal cases, and technology.