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GPS tracking is not a search

By: David Ziemer, [email protected]//May 10, 2011//

GPS tracking is not a search

By: David Ziemer, [email protected]//May 10, 2011//

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A divided three-judge panel of the 7th Circuit recently held that it did not violate the Fourth Amendment for police to place a GPS tracking device on a car, and monitor it all the way from Arizona to Illinois.

But the law could change. On April 15, the Department of Justice petitioned the U.S. Supreme Court to grant certiorari in a case from the D.C. Circuit that may conflict with the 7th Circuit’s holding. U.S. v. Maynard, 615 F.3d 544 (D.C.Cir. 2010)(petition filed, Apr. 15, 2011).

The 7th Circuit case, decided April 28, generated both a concurrence that disagreed with some implications of the lead opinion, and a dissent.

The lead opinion, by Judge Richard Cudahy, held that, based on existing precedent, there was no illegal search, but acknowledged the D.C. Circuit’s reasoning may have merit.

The concurrence, by Judge Joel Flaum, concluded there was no search, because drivers have no reasonable expectation of privacy in their movements, and explicitly rejected the D.C. Circuit’s reasoning.

The dissent, by Judge Diane Wood, agreed with the D.C. Circuit, and concluded GPS surveillance is a search that requires a warrant.

The case began in 2008, when a Phoenix detective attached a GPS tracking unit to a Jeep while it was parked in a public area, as part of an investigation into drug distribution.

Juan Cuevas-Perez then drove the vehicle from Arizona to Illinois. With the batteries on the GPS unit by then running low, the Phoenix detective enlisted Illinois police to find some reason to pull the vehicle over, which they did. They followed the vehicle for 40 miles before stopping Cuevas-Perez for remaining in the left-hand passing lane, a minor violation of Illinois traffic law.

The stop resulted in the discovery of nine packages of heroin and federal criminal charges. Cuevas-Perez moved to suppress the heroin, but the district court denied the motion. He appealed, but the sharply divided three-judge panel affirmed.

In the lead opinion, Cudahy held that, in light of U.S. v. Garcia, 474 F.3d 994 (7th Cir. 2007), the warrantless GPS tracking of Cuevas-Perez was lawful.

In Garcia, the court held that GPS surveillance is not a search, because it merely substitutes technology for another activity that is not a search, “namely following a car on a public street.”

Cudahy found no legally meaningful basis to distinguish Garcia, and held the tracking of Cuevas-Perez was therefore lawful.

Cudahy acknowledged, however, the contrary precedent from the D.C. Circuit in Maynard, in which the court held that 28-day prolonged GPS surveillance did amount to an unlawful search.

The D.C. Circuit concluded that surveillance for such a long time would reveal more about a person’s life than that which is exposed to the public during a single journey, and that during such a lengthy period, the person would likely go places not open to the public.

Without approving or disapproving of the reasoning in Maynard, Cudahy found it distinguishable from the single journey that was tracked in this case.

Flaum wrote separately because the lead opinion “could be read to imply that, on different facts, we might adopt the D.C. Circuit’s reasoning.”

Countering that implication, Flaum flatly stated, “I believe that Maynard is wrongly decided.”

Flaum explained, “The holding in [U.S. v. Knotts, 460 U.S. 276 (1983)] is that a person has no expectation of privacy in movements from one place to another on public roads; by its terms, the holding is indifferent to the technology used to observe those movements.”

Flaum also opined that determining the constitutionality of a search based on its length is unworkable. Flaum asked, “Are all prolonged investigations on the constitutional chopping block unless police have probable cause and a warrant?”

Wood dissented, concluding police cannot conduct a search using a GPS device without first obtaining a warrant.

Wood concluded that, under the majority’s rule, “Police officers could … install GPSs randomly, and begin tracking any person they chose. As long as the Fourth Amendment has no application, nothing but the financial resources of the police department stands between the individual person and such tactics.”

Wood opined, “Prolonged GPS surveillance, like a surreptitious wiretap, intrudes upon an individual’s reasonable expectation of privacy by revealing information about her daily trajectory and patterns that would, as a practical matter, remain private without the aid of technology.”

What the Court Held

Case: U.S. v. Cuevas-Perez, No. 10-1473

Issue: Does tracking the movements of a vehicle via a GPS device require a search warrant?

Holding: No. GPS tracking is not a search.

David Ziemer can be reached at [email protected].

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