By: dmc-admin//February 12, 2007//
Defense attorneys should continue to seek suppression of evidence gained as a result of attaching GPS devices to cars, especially when no warrant was obtained, given the split of authority between the circuit courts.
Attorneys doing so would be wise to frame the issue differently than the Seventh Circuit did in the case at bar.
The court here reasons almost exclusively by analogy to whether it would violate the Fourth Amendment for an officer to follow a vehicle physically, or to use surveillance cameras on streets.
Use of analogies, however, while frequently valuable to support a holding, do not answer the relevant, basic Fourth Amendment inquiry whether placing a GPS device on an automobile violates an objectively reasonable expectation of privacy.
The answer to that question would seem to be yes. Suppose a citizen were to actually witness an officer (or another civilian even) placing a GPS device on his vehicle. It would be objectively reasonable for him to consider his privacy violated.
The Sixth Circuits decision in U.S. v. Bailey, 628 F.2d 938 (6th Cir. 1980), stands in marked contrast to the Seventh Circuits decision, not just because it reached a different result, but because of the difference in methodology.
Calling the objective expectation of privacy question inextricably intertwined with whether a search or seizure occurs, the Sixth Circuit found that there is such an expectation. Id., 628 F.2d at 940.
Unlike the Seventh Circuit, the Sixth Circuit also declined to distinguish between whether a seizure or a search occurred, and called the distinction irrelevant. Id. The Seventh Circuit in the case at bar, in contrast, did make a distinction, and addressed the two separately.
Another difference in the methodology is that the Sixth Circuit addressed, at length, whether it matters if police place a tracking device on contraband, such as controlled substances, or directly on a non-contraband item, such as an automobile the very question left open by the Supreme Court in U.S. v. Knotts, 460 U.S. 276, 279 n.2 (1983). Id., at 943-944.
Ultimately, the Sixth Circuit rejected the distinction, but that court at least recognized the existence of a plausible argument for such a distinction. The Seventh Circuit, in contrast, does not even acknowledge that there may be a principled basis for such a distinction.
For all these reasons, the best strategy for attorneys wishing to raise and preserve a challenge to GPS tracking is to change the terms of the debate. If the question is whether there is any practical difference between GPS tracking and physically following a vehicle, the Seventh Circuits reasoning appears sound.
However, when employing traditional Fourth Amendment analysis, and focusing on whether GPS tracking violates the objectively reasonable expectations of privacy of the vehicles owner, the courts decision is suspect.
Finally, it is theoretically possible to distinguish this decision, even in the Seventh Circuit, for the simple reason that Garcia did not actually own the vehicle that was tracked. According to the statement of facts, the car was a borrowed Ford Tempo. Owners of vehicles have expectations of privacy in their cars that borrowers such as Garcia do not.
It is likely, however, that this argument would lose, for two reasons. In the analysis, the court routinely referred to the car as being Garcias. Second, the courts cursory rejection of Garcias argument that there was no seizure of the vehicle would probably doom the argument, even if the defendant was the vehicles owner (as for whether the tracking itself is a search, there is clearly no difference whether an owner or borrower is driving).
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David Ziemer can be reached by email.