GPS tracking is not a search

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Attaching a GPS (global positioning system) tracking device to a car is not unconstitutional, the Seventh Circuit held on Feb. 2.

Shortly after Bernardo Garcia was released from prison for methamphetamine offenses, a known user of meth reported to police in Polk County that Garcia had brought meth to her and her husband, consumed it with them, and told them he wanted to start manufacturing meth again.

Another person told the police that Garcia had bragged that he could manufacture meth in front of a police station without being caught. A store’s security video system recorded Garcia buying ingredients used in making the drug.

The police also learned that Garcia was driving a borrowed Ford Tempo, and when they located it on a public street, they placed a GPS memory tracking unit underneath the rear bumper, without obtaining a search warrant.

When police later removed the device, they were able to learn the car’s travel history since installation of the device, which showed the car had frequently been driven to a particular tract of land. The officers obtained the consent of the tract’s owner to search it, and when they did so, they discovered equipment and materials used in the manufacture of meth.

Garcia was charged with manufacture of methamphetamine and moved to suppress the evidence as the fruit of an unconstitutional search, but U.S. District Court Judge Barbara B. Crabb denied the motion, holding that a warrant was not necessary if reasonable suspicion was present (although Crabb also held that the officers had probable cause as well, even if that were the standard).

Garcia appealed, but the Seventh Circuit affirmed, in a decision by Judge Richard Posner, but on different grounds, concluding that placing a GPS device on a car does not constitute a seizure or a search.

Holding that no seizure occurred, the court reasoned, “The device did not affect the car’s driving qualities, did not draw power from the car’s engine or battery, did not take up room that might otherwise have been occupied by passengers or packages, did not even alter the car’s appearance, and in short did not ‘seize’ the car in any intelligible sense of the word.”

Turning to whether a search occurred, the court noted that the U.S. Supreme Court has held that the mere tracking of a vehicle on public streets by means of a beeper is not a search, but has left open the question whether installing the device directly in the vehicle converted the subsequent tracking into a search. U.S. v. Knotts, 460 U.S. 276 (1983).

The court then noted a split of authority among other circuits, with some holding that a search occurs, others holding that no search occurs, and some holding that no warrant is necessary, but that either reasonable suspicion or probable cause is a prerequisite.

Analogizing the device to an officer’s following a car around, the court found there was no search, although it acknowledged a “practical difference” between following a vehicle and using GPS devices.

The court wrote, “it is the difference between the old technology — the technology of the internal combustion engine — and newer technologies (cameras are not new, of course, but coordinating the images recorded by thousands of such cameras is). But GPS tracking is on the same side of the divide with the surveillance cameras and the satellite imaging, and if what they do is not searching in Fourth Amendment terms, neither is GPS tracking.”

Nevertheless, the court continued its analysis, citing the admonition in Katz v. United States, 389 U.S. 347 (1967), that the meaning of a Fourth Amendment search must change to “keep pace with the march of science.”

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However, the court still concluded that no search occurred, distinguishing Kyllo v. U.S., 533 U.S. 27 (2001), in which the U.S. Supreme Court held that it violated the Fourth Amendment to use a thermal imager to reveal details of a home’s interior that could not otherwise be discovered without physical entry.

The court wrote, “Kyllo does not help our defendant, because his case unlike Kyllo is not one in which technology provides a substitute for a form of search unequivocally governed by the Fourth Amendment. The substitute here is for an activity, namely following a car on a public street, that is unequivocally not a search within the meaning of the amendment.”

Accordingly, the court affirmed the denial of Garcia’s suppression motion.

Before concluding, however, the court acknowledged the possibility that police could violate the Fourth Amendment by randomly affixing GPS tracking devices to thousands of cars, or requiring that all new cars come equipped with the device so the government can monitor all vehicular travel in the country.

The court wrote, “Technological pro-gress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive. … Should government someday decide to institute programs of mass surveillance of vehicular movements, it will be time enough to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search.”

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David Ziemer can be reached by email.