Warrantless Installation of GPS Tracking Device to Undercarriage of Suspect's Vehicle and Use of Device to Track Vehicle's Movements Is Search

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In United States v. Jones (2012) ___ U.S. ___, 132 S.Ct. 945, ___ L.Ed.2d ___, 2012 WL 171117, FBI agents installed a GPS tracking device on the undercarriage of a vehicle registered to defendant's wife, but used exclusively by him. A warrant authorized installation of the device in the District of Columbia within 10 days. The device was installed on the 11th day in Maryland and was used to track the vehicle's movements over the next 28 days. Defendant, who was charged with conspiracy to commit drug offenses, filed a motion to suppress evidence obtained through use of the device. The district court granted the motion in part, suppressing only data obtained while the vehicle was parked in a garage adjoining defendant's residence. After defendant's trial produced a hung jury, defendant was again charged with the same conspiracy and convicted, but the Court of Appeals reversed the conviction, determining that admission of evidence obtained by the device violated the Fourth Amendment. The United States Supreme Court affirmed. Held, the warrantless attachment of a GPS tracking device to a suspect's vehicle, and use of that device to monitor the vehicle's movements on public streets, are a search within the meaning of the Fourth Amendment.

(a) Trespass test. The government physically occupied private property to obtain information. This was a trespass which would have been considered a search within the original meaning of the Fourth Amendment. (2012 WL 171117, p. 3.) Justice Harlan's concurrence in Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §333, applied another standard to determine whether a search has occurred under the Fourth Amendment – whether government officers have violated a person's reasonable expectation of privacy. Thus, the trespass test is not the exclusive test of whether there has been a search, but it does provide the minimum degree of protection afforded when the Fourth Amendment was adopted. While Katz established that "property rights are not the sole measure of Fourth amendment violations," it did not eliminate "the previously recognized protection for property." (2012 WL 171117, p. 4, quoting Soldal v. Cook County (1992) 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450.)

(b) Prior electronic tracking cases. United States v. Knotts (1983) 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §334, and United States v. Karo (1984) 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §334, two cases which rejected Fourth Amendment challenges to the use of beepers, another form of electronic tracking device, are distinguishable.

(1) In Knotts, the beeper had been placed in a container before it came into defendant's possession, allowing police to monitor the location of the container. The information obtained – the location of the vehicle carrying the container on public roads and the location of the off-loaded container in an open field – was voluntarily conveyed to the public and therefore did not infringe the defendant's reasonable expectation of privacy. But the reasonable expectation of privacy test has been added to, not substituted for, the commonlaw trespass test. Knotts addressed only the former. (2012 WL 171117, p. 5.)

(2) Karo considered whether the transfer of a beeper from a consenting third party to a buyer having no knowledge of its presence constituted a search or seizure. Because the transfer did not convey any information, it did not invade defendant's privacy. He accepted the container, beeper and all, and was therefore not entitled to object to its presence, even though it was used to monitor the container's location. Here, on the other hand, defendant possessed the vehicle at the time the government installed the information-gathering device. (2012 WL 171117, p. 5.)

(c) Advantages of two tests. Because the trespass test is not the exclusive test, where the mere transmission of electronic signals without a trespass occurs, the Katz analysis would continue to apply. Application of the trespass test here makes it unnecessary to decide whether long-term monitoring equivalent to visual observation, which has never been determined to constitute a search, is an unconstitutional invasion of privacy. Moreover, to decide, as the concurrence posits, that longer-term GPS monitoring "of most offenses" impinges on the expectation of privacy, but that an extraordinary offense might permit longer observation, would introduce the unprecedented proposition that whether a search has occurred depends on the nature of the crime, and potentially lead to difficulties in determining the length of monitoring allowable in light of the nature of the crime involved. (2012 WL 171117, p. 7.)

(d) Alternative argument forfeited. The government's alternative argument, that the attachment and use of the device, if a search, were reasonable and therefore lawful, was not raised in the district court, and was therefore forfeited. (2012 WL 171117, p. 8.)

One justice concurred, expressing concern that even short-term GPS monitoring, which is now inexpensive and can easily gather a large amount of personal detail, "chills associational and expressive freedoms" and may be subject to abuse. (2012 WL 171117, p. 8.)

Four justices, concurring in the judgment, would have analyzed the issue by asking whether defendant's reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove (2012 WL 171117, p. 11.). All five concurring justices agreed that, under this test, "longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy." (2012 WL pp. 8, 17.)

Witkin References

On nature of protection against unreasonable search and seizure under the United States Constitution, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §29.

On reasonable expectation of privacy test, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §194 et seq.

On use of electronic tracking devices, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §334.