©2010 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (LLRMI.COM) Recently, the Court of Appeals for the District of Columbia decided the United States v. Maynardi, which involved an issue regarding the need for a search warrant to track, via GPS, the long-term movements of a drug conspiracy suspect. While it is important to note that this decision is only binding in the D.C. Circuit, other circuits may consider it “persuasive” and follow this decision.
In Maynard, agent from the FBI-Metropolitan Police Department Safe Streets Task Force began a cocaine distribution investigation involving Maynard and Jones. During the course of the investigation, agents placed a hidden GPS tracking device on Jones’ vehicle. The device monitored and recorded Jones’ travels over a twenty-eight (28) day period. The evidence obtained from the tracking device was crucial in Jones’s later conviction for conspiracy to distribute cocaine. Jones then appealed the admission of the evidence obtained from the GPS tracking device.
While there were multiple issues in this case, we will only examine whether the agents warrantless, prolonged monitoring of the GPS device was an unreasonable search under the Fourth Amendment. In reaching the holding on this issue, the court extensively examined and answered several corollary issues or question relevant to the ultimate issue as stated above.
First, the D.C. Circuit had to decide whether the United States Supreme Court ruling in U.S. v. Knotts controlled the outcome of this case.
At the outset, the D.C. Circuit stated that the United States Supreme Court’s ruling in the United States v. Knottsii does not control their ruling in this case. In Knotts, police planted a beeper tracking device in a container of chemicals used for manufacturing illegal drugs. The police then tracked the container as it was driven in a car from the place of purchase to Knott’s cabin about 100 miles away. The court held that a person traveling on public roadways has no reasonable expectation of privacy in his movements from one place to another.iii
While this would seem to approve of the agents tracking of Jones in the case at hand, the D.C. Circuit focused on statement by the Supreme Court regarding long-term surveillance. Particularly, in Knotts, the Supreme Court stated
[T]hough [the defendant] expresses the generalized view that the result of the holding sought by the Government would be that twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision. But the fact is that the reality hardly suggests abuse; if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.iv [internal quotations omitted]
Thus, the D.C. Circuit decided that, based on the above statement in Knotts, the Supreme Court avoided deciding the issue of whether prolonged “twenty-four hour surveillance” was a search under the Fourth Amendment. Therefore, Knotts did not control Jones’s case.
Additionally, the D.C. Circuit also examined decisions by other federal circuits that involved issues with GPS tracking devices. The court noted that at least three other circuits have concluded that the prolonged monitoring of a GPS tracking device is not a search under the Fourth Amendment.v However, the D.C. Circuit, in disagreeing with these circuits stated
In each of these three cases, the court expressly reserved the issue it seems to have thought the Supreme Court had reserved in Knotts, to wit, whether “wholesale” or “mass” electronic surveillance of many individuals requires a warrant. As we have explained, in Knotts the Court actually reserved the issue of prolonged surveillance. That issue is squarely presented in this case. Here the police used the GPS device not to track Jones’s “movements from one place to another,” but rather to track Jones’s movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place to place.vi [internal citations omitted]
Second, the court had to determine whether Jones’s movements in his vehicle were exposed to the public. This is an important issue, because, when a person exposes their affairs to the public, they generally lose their reasonable expectation of privacy and, consequently, Fourth Amendment protection. After examining various court rulings, the D.C. Circuit held
[T]he whole of a person’s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person’s hitherto private routine.vii
Thus, the D.C. Circuit believed that, while any singular excursion is exposed to the public, society does not recognized that an outside observer would follow a person for twenty-eight (28) days documenting their every move.
Likewise, the D.C. Circuit described their rationale for considering long term GPS surveillance more intrusive than surveillance of a single excursion. The court stated
Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts…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, he expects each of those movements to remain “disconnected and anonymousviii
Third, the court had to determine whether Jones’s possessed a reasonable expectation of privacy in his vehicular travel during the twenty-eight (28) day period at issue. The D.C. Circuit held
Society recognizes Jones’s expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation. As we have discussed, prolonged GPS monitoring reveals an intimate picture of the subject’s life that he expects no one to have — short perhaps of his spouse. The intrusion such monitoring makes into the subject’s private affairs stands in stark contrast to the relatively brief intrusion at issue in Knotts; indeed it exceeds the intrusions occasioned by every police practice the Supreme Court has deemed a search under Katz…ix
Lastly, the court considered whether visual surveillance would be somehow negatively impacted by its current line of reasoning regarding GPS tracking. Regarding this issue, the court stated
We have already explained why Jones’s argument does not “logically … prohibit” much visual surveillance: Surveillance that reveals only what is already exposed to the public — such as a person’s movements during a single journey — is not a search.
Regarding visual surveillance so prolonged it reveals information not exposed to the public, we note preliminarily that the Government points to not a single actual example of visual surveillance that will be affected by our holding the use of the GPS in this case was a search.x [internal citations omitted]
Additionally, to the issue of visual surveillance, the court noted that the means a government agent uses to obtain information about a person is relevant to a determination of reasonableness under the Fourth Amendment. The court stated
[W]hen it comes to the Fourth Amendment, means do matter. The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment. For example, the police may without a warrant record one’s conversations by planting an undercover agent in one’s midst, but may not do the same by wiretapping one’s phone, even without any trespass. Quite simply, in the former case one’s reasonable expectation of control over one’s personal information would not be defeated; in the latter it would be.xi [internal citations and quotations omitted]
Thus, the D.C. Circuit held that prolonged GPS tracking of a person requires a warrant, since the person has a reasonable expectation of privacy in the sum of their movements over a prolonged period of time.
Since there was no valid exception to the warrant requirement found by the court, Jones conviction was reversed because the prolonged GPS tracking without a warrant violated the Fourth Amendment.
Additional Information from the United States v. Maynard
The application of this case is only binding in the D.C. Circuit. However, it can be considered persuasive in other jurisdictions.
According to the D.C. Circuit in Maynard, there are several jurisdictions that have case law that is consistent with their decision in Maynard holding that GPS tracking is likely a search and seizure and, at least in some circumstances, may require a warrant. These jurisdictions are as follows:
New York – People v. Weaver, 12 N.Y. 3d 433, 447, 909 N.E. 2d 1195 (2009)(“the installation and use of a GPS device to monitor an individual’s whereabouts requires a warrant supported by probable cause”)xii
Washington – State of Washington v. Jackson, 150 Wn.2d 251, 76 P.3d 217, 223-224 (2003)(under art. I, § 7 of Washington State Constitution, which “focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass,””use of a GPS device on a private vehicle involves a search and seizure”)xiii
Massachusetts – Commonwealth v. Connolly, 454 Mass. 808, 913 N.E. 2d 356 (Ma. 2009)(installation held a search)xiv
California – California Penal Code section 637.7 – The D.C. Circuit opined that since California has a statute making it unlawful for anyone but law enforcement to use a GPS tracking device to track a person, they “implicitly but necessarily thereby required a warrant for police use of a GPS.”xv
Other states – the D.C. Circuit stated that several other states have enacted legislation regulating 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.” See e.g. Utah Code Ann. §§ 77-23a-4, 77-23a-7, 77-23a-15.5; Minn Stat §§ 626A.37, 626A.35; Fla Stat §§ 934.06, 934.42; S.C. Code Ann § 17-30-140; Okla. Stat, tit 13, §§ 176.6, 177.6; Haw. Rev. Stat §§ 803-42, 803-44.7; 18 Pa. Cons. Stat § 5761.xvi
The court also noted that the several federal circuits have approved of the warrantless use of GPS tracking devices. These federal circuits are as follows:
Seventh Circuit – United States v. Garcia, 474 F.3d 994 (7th Cir. 2007)
Eighth Circuit – United States v. Marquez, 605 F.3d 604 (8th Cir. 2010)
Ninth Circuit – United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010)xvii
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
SEE RELATED ARTICLES:
Use of Gps Tracking Device Upheld by Ninth Circuit (February 2010)
Court Order or Search Warrant Requirements for GPS Tracking on Vehicles for On-Going Surveillance
(Legal Question Response, October, 2008)
i No. 08-3030, 2010 U.S. App. LEXIS 16417 (D.C. Cir. Decided August 6, 2010) [Note: The United States v. Maynardinvolved two separate defendants (Maynard and Jones) who were involved in the same conspiracy; they filed a joint appeal.]
ii 460 U.S. 276 (1983)
iii Maynard at 22 (citing Knotts, 460 U.S. at 281)
iv Maynard at 23 (citing Knotts, 460 U.S. at 283-284)
v See United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); United States v. Marquez, 605 F.3d 604 (8th Cir. 2010)
vi Maynard at 28-29
vii Id. at 35-36
viii Id. at 39-40, 42
ix Id. at 44-45
x Id. at 48-49
xi Id. at 51-52
xii Id. at 46
xiii Id. at 47
v Id. at 45-46
vi Id. at 46
vii Id. at 26