August 2012 | Vol. 7, No. 1
Supreme Court Rules on Use of GPS Devices as Searches
Editor's Note: The following discussion of the Supreme Court's recent ruling on the use of GPS devices as searches is presented as an exchange between Jack E. Call, Professor of Criminal Justice at Radford University, and H. Lee Harrell, Deputy Commonwealth's Attorney in Wythe County.
Perspective from Jack E. Call
Professor of Criminal Justice
On January 23, 2012, the U.S. Supreme Court issued its long-anticipated decision on the 4th Amendment implications of police use of Global Positioning System (GPS) tracking devices. The Court held in a somewhat complicated decision (U.S. v. Jones) that the installation of such a device on a car while it is in public constitutes a search under the 4th Amendment.
The District of Columbia police and the FBI suspected that Antoine Jones was involved in drug trafficking. By early 2005, the investigation of Jones had progressed to the point where the police had probable cause to obtain a warrant to install a GPS device on a Jeep registered to Jones’ wife. The warrant authorized installation of the device anytime during the 10 days following issuance of the warrant. For reasons that are unclear from the Court’s opinion, the police waited eleven days before installing the GPS device.
Over a 4-week period, the tracking device transmitted the location of the Jeep (within 50-100 feet) to a government computer. The data provided by the device generated more than 2000 pages of information and provided relevant evidence to buttress the government’s case against Jones. However, because the GPS device was installed after the period authorized by the search warrant, the government could not rely on the warrant to justify its use of the tracking device.
Since the government could not rely on the authority of the search warrant to justify its actions, it argued that it did not need a search warrant because their use of the GPS device was not a search at all. If what they did was not a search, then the 4th Amendment was irrelevant.
Prior to the 1960’s, Supreme Court case law on what constitutes a search took a property approach. Since the 4th Amendment provides that people are to be “secure in their persons, houses, papers, and effects,” the Court indicated that police actions were not a search unless they trespassed upon a constitutionally-protected area. Then in 1967, the Court decided the landmark case of Katz v. U.S.1
In Katz, the police had attached an electronic eavesdropping device on the outside of a glass phone booth. The device recorded statements made by Katz using the pay phone that implicated him in illegal gambling activity. Since the eavesdropping device did not physically invade the phone booth, strict adherence to the existing property approach to what constitutes a search would have resulted in the conclusion that what the police did was not a search.
However, the Court believed that emerging technology had made their old property approach obsolete. In a 7-1 decision (Justice Marshall did not participate in the case), the Court reviewed prior case law in this area and concluded that the 4th Amendment “protects people, not places.” The interest at stake in these cases was the desire of people to remain free from unnecessary interference into their lives by the police. Thus, as Justice Harlan indicated in a concurring opinion, police actions constitute a search whenever they intrude upon a reasonable expectation of privacy.
For decades it was thought that this new privacy definition of search established by Katz replaced the old trespass doctrine of prior case law. Given that assumption, the issue in Jones seemed to be whether the use of an electronic tracking device to follow the actions of a person was an intrusion upon a reasonable expectation of privacy. The government’s argument primarily was that since a person’s movements in public are exposed to the public, the use of the GPS device was no different conceptually from a police officer’s following the movements of an individual on foot or in a car – an action that is certainly not a search.
The government supported this argument by reference to two “beeper” cases from the 1980’s – U.S. v. Knotts2 and U.S. v. Karo.3 In both cases, law enforcement officers had used beepers installed in containers that came into the possession of the defendants to assist them in tracking the movement of the defendants. In Knotts, the Court held that using the beeper to assist in monitoring the defendant’s movements did not intrude upon a reasonable expectation of privacy. In Karo, the Court held that placing the beeper in a container also did not intrude upon a reasonable expectation of privacy.
If the only definition of what constitutes a search was the Katz reasonable-expectation-of-privacy definition, these beeper cases – especially Karo – would have provided strong support for the government’s position. However, Justice Scalia held in his opinion for the Court that Katz created an approach to what constitutes a search that was in addition to the old trespass approach – not a replacement or substitute for it. This came as quite a surprise to many students of the 4th Amendment.
The Court applied the trespass definition to the facts of this case and concluded that installation of the GPS device in the Jeep was a physical intrusion into a constitutionally protected area, and therefore the use of the device to track the movements of the car of Jones’ wife was a search. Justice Scalia wrote the opinion for himself, Chief Justice Roberts, and Justices Kennedy and Thomas. Justice Sotomayor wrote a concurring opinion joining Scalia’s opinion, thereby making it an opinion for the Court (and a binding precedent in future cases).
Justice Alito wrote a concurring opinion that was joined by the remaining Justices – Ginsburg, Breyer, and Kagan. These four Justices were unwilling to adopt the Court’s trespass approach. They view the Katz reasonable-expectation-of-privacy approach as a new definition of search that replaced the old trespass approach. Under the Katz approach, these four Justices also ruled in favor of the defendant, because they concluded that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Therefore, the GPS monitoring of Jones’ movements was a search.
What makes this case especially complicated (and interesting) is that Justice Sotomayor not only joined Justice Scalia’s opinion, but she expressed agreement with Justice Alito’s opinion as well. As one commentator, Tom Goldstein, has indicated, the result is, in effect, “two separate majority opinions.” 4 Justice Sotomayor agrees that installing a GPS device on a car to track the movements of the car is a search, but she also agrees that longer term monitoring of someone’s movements with a GPS device is also (usually) a search. This is important, because the latter approach is not simply a subset of the former approach. A GPS device might be used to track someone’s movements without its being installed in a constitutionally-protected place.
In essence, Goldstein is suggesting that the police are well-advised to view this case as having created two rules with which they need to comply. The first rule – the trespass approach – is relatively straightforward. If the police install a GPS device in a constitutionally-protected area – on a person or on a person’s personal property – this will be deemed a search.
The second approach, articulated by Justice Alito, is a bit more complicated. First, the rule indicates only that “longer term GPS monitoring” is a search. Short term monitoring is not. However, Justice Alito specifically declined to define what constitutes “longer term.” He indicated that “[w]e need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark.” Thus, the police are left to guess how long they may monitor the movements of a vehicle with GPS device before it becomes a search under Alito’s rule.
The second complication related to the Alito rule is that it appears to apply only to “investigations of most offenses.” However, Justice Alito again declined to indicate which offenses might be exempt from the rule created by his opinion. Thus, the police are also left to guess as to which offenses this rule does not apply.
There is another very important issue related to this case. Does either of these rules – the Scalia/trespass rule or the Alito/privacy rule – require that the police obtain a search warrant to either install the GPS device (under the Scalia/trespass rule) or to use the device long term (under the Alito/privacy rule)? The Court of Appeals ruling in the case suppressed the evidence obtained from the GPS device, suggesting that the problem was that use of the device was a search and the police therefore needed a search warrant to use it.
That this is a common assumption is demonstrated well by a recent Associated Press article about a Virginia case that is presently before the Virginia Supreme Court.5 The article indicates that David Foltz was a suspect in a series of sexual assaults in Northern Virginia. The police installed a GPS device on his vehicle without a warrant. The device confirmed that Foltz’s vehicle was at the scene of a subsequent sexual assault. Apparently, the police still lacked sufficient evidence to charge Foltz with this assault, but since their suspicions were now heightened, the police began following Foltz and caught him when he knocked a woman down and tried to remove some of her clothing. The article indicates that Foltz’s attorney “cited the U.S. Supreme Court’s unanimous ruling in January that police cannot install GPS technology to track suspects without a warrant.”
The problem is that the Court specifically declined to address the issue of whether a warrant was required. Justice Scalia indicated that “[t]he Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable – and thus lawful – under the Fourth Amendment because ‘officers had reasonable suspicion, and indeed probable cause to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.’” The clear import of the government’s argument was that the police did not need a search warrant, so long as they had probable cause or reasonable suspicion.
The Court declined to address this argument because the government raised it for the first time before the Supreme Court. Since the government did not raise the issue in the courts below, it was forfeited. This is not to say that it is unreasonable to conclude that a search warrant is required to install a GPS device on a car and use it to track the car’s movements; the point is simply that the Court did not come to that conclusion in this case. To borrow and modify an old saying from Yogi Berra, “it hasn’t been decided until it’s been decided.”
If you are a police officer reading this article, you are likely feeling a little confused at this point. In my experience, police officers are “bottom line” people. They want to know what a Court decision tells them about how they should do their job. In my opinion, the implications of this opinion are rather simple. The wisest course of action is for the police to obtain a search warrant authorizing them to install a GPS device on a car whose movements they want to track. It is probably necessary that the warrant application provide sufficient facts to establish probable cause to think that the GPS device will provide information linking the vehicle to criminal activity of a specified type. (It is possible that the Court might require only reasonable suspicion, rather than probable cause, but that remains an open question).
Of course, this opinion also tells us virtually nothing about the rules police must satisfy to use data provided by GPS devices installed on cell phones or on vehicles to permit tracking of stolen vehicles. Since the police do not have to install these devices, the trespass doctrine would seem to have no applicability whatsoever. On the other hand, it could be argued that the Alito/privacy rule applies to these devices just as much as they apply to GPS devices installed by the police.
There is even a question about whether the Alito/privacy rule might change over time. Alito’s opinion mentions tracking devices in cell phones, “smart phones,” and automobiles, and notes the use of these devices to help people know how traffic is flowing in a particular area (sometimes called “crowdsourcing”) and to share with friends their own location. Alito notes that “[t]he availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.” The implication seems to be that whether the use of these devices by the police intrudes upon a reasonable expectation of privacy may change as these devices are more commonly used.
One thing seems certain. The Court has just begun to sort out the rules concerning the use of GPS technology to track people’s movements. Given the extensive attention this case has received, it is quite possible that Congress and/or individual state legislatures will step in and establish some rules in this area that the police will have to follow.
Perspective from H. Lee Harrell
Deputy Commonwealth’s Attorney
Wythe County, Virginia
I couldn’t possibly do any more astute analysis of U.S. v. Jones, than the learned Professor Call has done; however, I would like to riff on two things he mentioned.
First, I agree with him that cops are “bottom line” folks. Unfortunately, lawyers aren’t; lawyers (and thus judges) love the murky swamps of the gray space rather than the black and white. In my job as a local prosecutor I am always seeking to find those “bright line” rules that law enforcement can use. Jones is a good example of a decision that leaves plenty of ambiguity for the troops on the ground trying to decide how best to utilize new technologies when fighting crime.
The Virginia legislature and Governor McDonnell attempted to provide some guidance on April 4, 2012, by passing “emergency” (effective immediately rather than on the ordinary effective date of July 1) legislation aimed at GPS tracking devices.
This legislation, entitled “[A]uthority and protocol for law enforcement to apply for search warrant for GPS tracking devices” created a new code section found at Section 19.2-56.2 of the Code of Virginia. It is a fairly bulky code section that details the “whens and hows” of getting a search warrant for a GPS tracking device. This was, of course, done in response to the Jones case. Whether the procedure actually passes constitutional muster is unclear as it is yet untested in any appellate courts. It does, however, provide the framework for law enforcement to obtain and utilize GPS data on a suspect.
The mechanics of application are very similar to the application for a regular search warrant. The primary difference is that once the search warrant is issued, law enforcement has up to 30 days to “track” the suspect. Upon application and for good cause shown, the judicial officer may grant an additional 30 days of tracking. Sounds reasonable so far, but here’s the part law enforcement is apt not to like: once the tracking has ended (probably either 30 or 60 days), law enforcement must serve the suspect with a copy of the search warrant. An additional 30 days to the date when notification must be given can be granted upon good cause shown to the judicial officer.
Here’s the bottom line: you can follow someone using a GPS device so long as you get a search warrant and so long as you let the person know shortly on the heels of monitoring them. This notification requirement could hamper the ability of law enforcement to expand its investigation. For instance, if you get a GPS search warrant for a drug dealer, and he makes four trips every day to a house you suspect is his source of drugs, you will likely want to shift your attention to that supplier. The problem will be that you will have to notify your initial target within 10 days (or 30 more days if you manage to get an extension), thereby inevitably tipping off your newer target. Thus, utilizing one of these search warrants may well be the end of that particular investigation. Law enforcement should contemplate that possibility when applying for a warrant using this new “emergency” legislation. Also, because this is a new and unsettled area of the law (thanks to Jones), it is likely to be the source of an appeal.
Next, Jack highlighted the growing interest in technology and how it intersects with privacy interests. Frequently, I am asked by law enforcement whether they need to get a warrant to search a cellular telephone. True to my lawyerly nature, I usually answer, “it depends.”
The first question to understand regarding the legality of a warrantless search of a cellular phone is: “where was the phone found?” A phone that is found NOT “on or about” an arrestee will likely require a search warrant.
More interesting is the phone that is seized incident to arrest. The rule in Chimel6 allows for a search of an arrestee’s person and the area within his immediate control (typically labeled “wingspan”). Further, United States v. Edwards7 allows for a search of an arrestee’s effects even after a substantial amount of time has lapsed between the arrest and the search. Thus, the seizure of a cell phone from someone who is arrested based on valid probable cause is not at issue. What then becomes problematic is the search of that phone and its contents.
As cell phone technology has evolved over time, so has our understanding of what a “cell phone” actually is. What used to be a relatively simple device for telephonic communication has now become a powerful “mini-computer” capable of storing large amounts of complicated data such as video tapes, lengthy documents and sophisticated software programs.
Citing a manifest need to preserve evidence, the Fourth Circuit Court of Appeals has held that officers may retrieve text messages from cell phones seized incident to arrest without seeking any other warrant.8 The Fifth Circuit and Seventh Circuit have similarly held that evidence preservation is an acceptable justification for the retrieval of call records and text messages without any warrant so long as the device was seized incident to a lawful arrest.9
The days of law enforcement being interested only in call records and text messages is long past, given the profound changes in cell phone capabilities. Nowadays the astute officer may find a vast gold mine of evidence in the camera, video and GPS features of a “smart phone.” Does the more permanent nature of this type of data (as opposed to the short-lived text message) mean that the expectation of privacy outweighs the need of evidence preservation? Since this type evidence is not likely to disappear from a cell phone, should an officer have to get a separate search warrant?
The most prudent answer is probably “yes” because obtaining a search warrant virtually assures the subsequent admissibility of any evidence. However, a recent case from the 4th Circuit seems to suggest that a search warrant for these more technologically advanced phones remains unnecessary. In United States v. Murphy10 the defendant argued that “high memory” phones did not have the same technological limitations that lower memory phones have, and thus evidence preservation was not an appropriate rationale for a warrantless search of a phone seized incident to arrest. The defendant reasoned that cell phone data are no longer volatile, and thus there is a heightened expectation of privacy in such data.
The 4th Circuit was not persuaded by the argument for several reasons. First, the defendant did not offer any standard of judging when cell phone data goes from being volatile to being permanent. Next, the Court surmised that just because a phone has sophisticated functions and extension storage does not necessarily mean that the phone’s data are any more or less volatile. Finally, the Court felt it would be an untenable burden on law enforcement to ascertain the functionality of a cell phone.
Thus, it would appear that the current state of the law is that if a phone is seized incident to arrest and that phone’s data may have evidentiary value, an officer can safely review that data without first obtaining a search warrant. All this said, you will never hear me complain about the prudent officer taking the time to get a search warrant. It may well be “belt and suspenders” but at least your pants will be firmly up when you step into the courtroom.