On December 2, 2022, the Eighth Circuit Court of Appeals decided the United States v. Dewilfond[i], which is instructive regarding the use of GPS devices to track suspects during investigations. The relevant facts of Dewilfond are as follows:
Scott County, Iowa, Detective Greg Hill was the only witness at the June 2021 suppression hearing. Detective Hill testified that on September 25, 2020, he was investigating methamphetamine distribution in the Quad Cities area. A confidential source (“CS”), one of three sources who had informed Hill that Dewilfond was involved in distributing methamphetamine, informed Hill that Dewilfond wanted to borrow the CS’s vehicle to purchase a large quantity of methamphetamine outside the Quad Cities area. With the CS’s consent, law enforcement placed a GPS tracking device on the vehicle. Later that day, the CS advised he had loaned the vehicle to Dewilfond. Law enforcement monitored the vehicle’s location for the next two days in Davenport and the surrounding Quad Cities. On September 27, the vehicle traveled west to Oskaloosa, Iowa, where it stopped briefly at a Walmart store and then at two gas stations before returning to Davenport. When it arrived at the Baymont Inn, Hill testified that officers surrounded the vehicle “for a takedown” and approached its occupants with guns drawn due to Dewilfond’s “history of eluding and the possibility of firearms.”
Dewilfond, in the front passenger seat, told the driver, his girlfriend, to “go, go, go,” but officers stopped her from putting the vehicle in drive. Dewilfond initially refused the demand to show his hands. Both occupants were removed from the vehicle and arrested. One officer noted the vehicle smelled like marijuana. Detective Hill interviewed Dewilfond after obtaining a Miranda waiver. Dewilfond said that Hill would find methamphetamine in the vehicle. In a warrantless search of the vehicle later that day, officers found over 1,000 grams of methamphetamine, ammunition, and other contraband. A subsequent warrant search of Dewilfond’s apartment and a second vehicle recovered additional contraband.[ii]
Dewilfond filed a motion to suppress the evidence and derivative evidence seized as a result of the warrantless, GPS tracking of his location. The district court denied his motion to suppress, and he appealed to the Eighth Circuit Court of Appeals.
The issue on appeal was “whether the district court erred in denying Mr. Dewilfond’s motion to suppress evidence derived from the warrantless GPS tracking of his movements.”[iii]
Dewilfond raised two arguments on appeal. First, Dewilfond argued that the Supreme Court’s decision in the United States v. Jones[iv] should control his case. In Jones, the police secretly placed a GPS tracker without a warrant on Jones’s wife’s vehicle. The police then used the tracker to monitor Jones’ movement for twenty-eight days. The Supreme Court held that the attachment of the GPS and its use to track Jones constituted a search under the Fourth Amendment. The court reasoned that the police “trespassed” by physically attaching the device to the vehicle for the purpose of obtaining evidence.
The court of appeals distinguished Jones from Dewilfond’s case in that the vehicle belonged to the “confidential source” (CS), and the CS consented to the attachment of the GPS while the vehicle was in the CS’s possession prior to loaning it to Dewilfond. The court stated
Consent is a well-established exception to the warrant requirement. See Karo, 468 U.S. at 717. Detective Hill’s testimony established that CS’s consent to install the device included consent for the government to monitor the vehicle’s location, at least in public places, to determine if it was engaging in an intended drug purchase, as the CS reported. At that time, Dewilfond had neither a possessory interest in that locational information nor a reasonable expectation of its privacy.[v]
Thus, because the CS owned the vehicle and consented to the GPS installation and its monitoring to determine if the vehicle was used in a drug purchase, the rule in Jones does not apply to Dewilfond’s case.
Dewilfond’s second argument was that he had a reasonable expectation of privacy in his movements in public in the vehicle he borrowed from the CS. The court of appeals first noted the legal principles relevant to his argument and stated
As the Supreme Court subsequently held in United States v. Knotts, 460 U.S. 276, 281, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983), “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” In this case, as in United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010), “[t]he device merely allowed the police to reduce the cost of lawful surveillance” of a vehicle they suspected was involved in drug trafficking.[vi]
The court observed that, during the two days the police tracked the vehicle Dewilfond borrowed from the CS, the vehicle remained in public view, and as such, the GPS device “allowed law enforcement to conduct the same sort of surveillance it could conduct visually.”[vii]
Dewilfond countered by arguing that the Supreme Court case, Carpenter v. United States,[ii] shows that he had a reasonable expectation of privacy in the monitoring of his public movements. In Carpenter, FBI agents obtained court orders to obtain historical Cell Site Location Information (CSLI) on phone numbers of possible armed robbery suspects for a 127-day period. The agents used this information to link Carpenter to the robberies. The Supreme Court held that obtaining this information was a search within the meaning of the Fourth Amendment, and as such, probable cause and a warrant were required to obtain such information. The court noted that the historical CSLI information allowed the government to delve into the “privacies of life.”
The court of appeals distinguished Dewilfond’s case from Carpenter and stated
Here, unlike Carpenter, law enforcement officers, with reason to suspect a vehicle was being used for drug trafficking, briefly used real-time GPS data “to find [Dewilfond’s] location in public, not to peer into the intricacies of his private life.” United States v. Hammond, 996 F.3d 374, 389 (7th Cir. 2021), cert. denied, 142 S. Ct. 2646 (2022).
In other words, the GPS device involved “real-time tracking” of a vehicle on the public roadways rather than historical cell phone location data to stored by a third party.
Thus, the court of appeals held
[W]e conclude the district court properly denied Dewilfond’s motion to suppress because law enforcement in obtaining and using real-time GPS tracking data with CS’s consent in connection with their investigation of the vehicle’s suspected use in drug trafficking did not violate the Fourth Amendment.[ix]
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 22-1066 (8th Cir. Decided December 2, 2022)
[ii] Id. at 2-3
[iii] Id. at 4
[iv] 565 U.S. 400 (2012)
[v] Id. at 6 (emphasis added)
[vi] Id. at 6-7 (emphasis added)
[vii] Id. at 7
[viii] 138 S. Ct. 2206 (2018)
[ix] Id. at 7-8 (emphasis added)