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Fourth Amendment and advanced technology

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[T]he law must advance with the technology to ensure the continued vitality of the Fourth Amendment.[1]

Overview Edit

State and federal courts have long since wrestled with whether and how to apply the Katz test to advancing technology. For example, the U.S. Supreme Court in Katz determined that when the suspect entered the phone booth and shut the door, he had a reasonable expectation of privacy in his being there. Thus, the police conducted an unreasonable search by using a listening and recording device without getting a warrant. Similarly, in Kyllo v. United States,[2] the Court decided that a suspect had a reasonable expectation of privacy in his home when the police, suspecting him of growing marijuana, used a thermal imaging device without a warrant to detect the heat emanating from it. In contrast, when the Court was asked in United States v. Ciraolo[3] to decide whether a suspect had a reasonable expectation of privacy in his 10-foot-high, fenced-in backyard after the police looked into it without a warrant from an airplane to see if he was growing marijuana, the Court concluded that he did not and that looking into the yard was not a search; thus, no warrant was necessary.

Beepers Edit

Likewise, the Court found that a defendant did not have a reasonable expectation of privacy in his car while traveling along public roads. In United States v. Knotts,[4] Minnesota law enforcement officers placed (with the seller’s consent) a beeper in a chloroform container, believing that the defendant buyer was engaging in the production of illicit drugs. Officers subsequently followed the vehicle carrying the container, maintaining both a visual surveillance and a monitor receiving the beeper signals. Based on the beeper signals, the officers tracked the container to the defendant's secluded cabin. After a three-day visual surveillance of the cabin, the officers obtained and executed a search warrant and found the container and a drug laboratory in the cabin. The defendant sought to have the evidence suppressed, arguing that the warrantless monitoring of the beeper violated the Fourth Amendment.

The Court disagreed and held that the officers' actions did not constitute a search or seizure, as the defendant did not have a legitimate expectation of privacy because the beeper signal was not used to monitor movement of the container within a private residence. Instead, it was used to monitor movement along public highways and other areas visible to the naked eye.

However, in a similar scenario, when a beeper was activated while the suspect was inside his house, the Court held that the suspect did have a reasonable expectation of privacy in his home and that the absence of a warrant constituted an unreasonable search.[5] In United States v. Karo,[6] Drug Enforcement Administration (DEA) agents installed an electronic beeper in a can of ether with the consent of the owner (a government informant). The marked can was sold with others to the defendants, who intended to use the contents for cocaine production. Having tracked the can to several residences and storage facilities, law enforcement determined the can’s location and obtained an arrest warrant. The defendants were arrested and charged with possession of cocaine with intent to distribute. One of the defendants sought to have the evidence suppressed as “tainted fruit” of an unlawful search. This case presented two issues for the Court to address: (1) whether the beeper’s installation constituted a search or seizure when the container was delivered to a buyer without any knowledge of the beeper’s presence and (2) whether the beeper’s monitoring within an individual’s residence falls within the Fourth Amendment’s ambit when it reveals information that could not have been obtained through visual surveillance.

As to the first issue, the Court found that the defendant lacked a Fourth Amendment interest, as the owner's consent was sufficient to withstand the challenge. However, the Court found that the Fourth Amendment was violated when the agents used the beeper to locate the container in a private dwelling without first obtaining a search warrant. Although the transfer of the beeper to the defendant did not violate the Fourth Amendment, the monitoring of the beeper in a private residence not open to visual surveillance did violate the Fourth Amendment.[7]

GPS technology Edit

State courts Edit

States have employed various approaches regarding the use of GPS technology and the Fourth Amendment’s warrant requirement. Some states have addressed the issue statutorily by enacting laws "imposing civil and criminal penalties for the [improper] use of electronic tracking devices or expressly requiring exclusion of evidence produced by such a device unless obtained by the police acting pursuant to a warrant."[8] Judicially, state courts have reached differing conclusions. State courts in New York, Washington, Oregon, Delaware, and Massachusetts have determined that, absent some exigent circumstances, police officers must first obtain a warrant before using GPS technology (in some cases the court is interpreting its respective state constitution).[9] For example, in State v. Weaver,[10] the Court of Appeals of New York held that the "unconsented placement" of a GPS tracking device and subsequent monitoring of the vehicle constituted a search requiring a warrant under the state’s constitution.[11] The court noted that it has interpreted its constitution to provide greater protections "in the areas of search and seizure."[12] The court found that the defendant had a reasonable expectation of privacy that was infringed by the state’s action. While the court found that the defendant had a diminished expectation of privacy, "that expectation was not reduced to zero."

Conversely, state courts in Nevada and Virginia have found that GPS use does not raise any state or federal constitutional concerns.[13] In Foltz v. Commonwealth,[14] the court found that the law enforcement’s use of a GPS tracking device to track a vehicle’s movement on a public street did not constitute a search or seizure under either the federal or state constitutions. The defendant, a registered sex offender on probation for committing sexual assault, became a suspect in a new series of sexual assaults. Police attached a GPS device to the defendant’s work vehicle. Upon observing, "in real time via a computer screen with a map,"[15] police noticed that the van was driven in and out of various neighborhoods where crimes had occurred. That evening another sexual assault occurred. The police followed the defendant the next day and witnessed him grab a woman and knock her down to the ground. The police stopped the assault and arrested the defendant. In reaching its decision, the court concluded that the defendant did not manifest a subjective expectation of privacy while driving down the street looking for victims. Moreover, the court concluded that the defendant "did nothing to prevent others from inspecting the bumper of the work van." Other state jurisdictions have not yet addressed the issue either legislatively or judicially.

Federal courts Edit

The U.S. Supreme Court has not directly addressed the issue of whether law enforcement’s use of GPS technology in connection with motor vehicles falls within the Fourth Amendment’s purview. Lower federal courts have relied on Supreme Court precedent to arrive at arguably varying conclusions. For example, several district and circuit courts of appeals have concluded that law enforcement’s current use of GPS technology does not constitute a search and is thus permissible under the Constitution.[16]

For example, in United States v. Pineda-Moreno,[17] the 9th Circuit decided a case involving criminal investigation of drug manufacturing that arose in Oregon. Without a warrant, DEA agents attached a GPS device to a Jeep owned by a man suspected of drug activity. The device was attached on several occasions over a four-month period.[18] Four times agents attached the device while the Jeep was parked on a public street; one time while it was parked at a public parking lot; and two times while it was parked on his property, necessitating that agents sneak onto it in the early morning hours to attach the device.[19] Eventually, the GPS "device alerted agents that [the suspect’s] vehicle was leaving a suspected marijuana grow site." The suspect was then arrested and officers found marijuana in the Jeep.[20]

The court held that the DEA’s actions did not constitute a search because a person does not have a reasonable expectation of privacy in a car’s exterior, even when the car is parked on the person’s driveway (unless the person has affirmatively sought to exclude others from entering his land).[21] The court then held that the DEA’s monitoring of the suspect’s travel was analogous to the facts in Knotts, where the police followed the suspect’s car by using a beeper to track its movements along the streets, because using the GPS device disclosed information that the police "could have obtained by following the car."[22] The court then concluded by quoting Knotts: "'Insofar as [Pineda-Moreno’s] complaint appears to be simply that scientific devices such as the [tracking devices] enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality and decline to do so now.'"[23]

Similar to Pineda-Moreno, many of the courts to follow this line of reasoning have analogized GPS devices to the beeper devices in Knotts. In addition, many have also included a caveat similar to the one the Supreme Court proffered in Knotts. In Knotts, the defendant argued that the Court’s ruling would permit the government to conduct warrantless and unlimited surveillance with such technology: "[I]f such dragnet type law enforcement practices as the defendant envisions should eventually occur," the Supreme Court proffered in Knotts. In Knotts, the defendant argued that the Court responded, "there will be time enough then to determine whether different constitutional principles may be applicable."[24] It is unclear what this "dragnet exception" means, and the differing outcomes in the federal circuits can be attributed to how the courts interpret it. The 9th Circuit, quoting with approval the 7th Circuit, stated it this way: "Should [the] 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."[25] Thus, the 9th and 7th Circuits interpreted Knotts's dragnet exception to apply to mass police monitoring.

Conversely, the D.C. Circuit held that law enforcement’s prolonged use of GPS technology does amount to a search and thus requires a warrant.[26] In reaching its conclusion, the court found that Knotts's "dragnet exception" applied to an individual when the law enforcement’s warrantless surveillance was constant and protracted, and is not limited to mass surveillance. In this case, the Federal Bureau of Investigation (FBI) installed a GPS device on a vehicle to track the “movements” of a club owner suspected of conspiracy to distribute cocaine. They monitored him "[for] 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."[27] The information was subsequently used as evidence at trial to prove his involvement in the conspiracy.[28]

The court distinguished its holding from the decisions in the other circuits by noting that the rule in Knotts was limited. Whereas the other circuits had read Knotts's dragnet exception to mean "mass surveillance," the court read it to apply to the individual and to mean prolonged, "twenty-four hour surveillance."[29] The court also concluded that a person has a reasonable expectation of privacy in the totality of his movements over the course of a month, which he does not actually or constructively expose to the public, even though law enforcement could constitutionally conduct warrantless observation of his individual movements from one place to another while in public.[30]

Differing decisions Edit

Depending on how one reads the courts’ decisions, one could conclude that there is a split in the courts regarding whether law enforcement must first obtain a warrant before using a GPS device. Conversely, one could also conclude that the courts’ decisions are reconcilable and that the outcomes of the cases are fact sensitive. However one reads the differing decisions, courts will continue to hear these claims and will likely reach alternative conclusions depending upon the facts of each case. Some courts, like the 7th and 9th Circuits, as well as the state court decisions in Nevada and Virginia, therefore, may decide to extend the U.S. Supreme Court’s existing precedents to hold that a person has no reasonable expectation of privacy in his car when he travels about in public because he exposes himself and his car to the public. Thus, the current use of GPS technology would not constitute a search under the Fourth Amendment.

A few courts may go so far as to conclude that any use of GPS technology, even when attaching it, is presumptively unreasonable unless law enforcement first obtains a valid warrant.[31] Other courts may decide that the warrantless use of GPS technology is permissible, subject to one of the already settled warrant exceptions, such as when the suspect is fleeing and the police are engaged in hot pursuit. The state court decisions in Washington, Oregon, and New York seem to have adopted this approach under their own constitutions. Finally, some courts may argue, which could be seen as an attempt to reconcile the already existing decisions, that using GPS devices for a minimal amount of time — for a few days, perhaps — is permissible, but when the monitoring becomes prolonged — for many days, weeks, or months — the intrusiveness reaches a point where it becomes a search requiring a warrant.[32] The state court’s decision in New York might also be read this way, and the D.C. Circuit appears to have followed this approach.[33]

Competing Interests Edit

In resolving disputes over law enforcement’s warrantless use of GPS technology, courts and legislatures seek the appropriate balance of two competing interests: enhancing law enforcement efficiency versus protection of individual privacy. Some contend that it would be better for legislatures rather than the courts to conduct this balance.[34] Others argue that the courts are capable and equipped to do it, just as they have done reconciling the law to the usage of many other emerging technologies.[35] Regardless, as defendants continue to raise challenges to law enforcement’s warrantless use of GPS technology in criminal investigations in state and federal courts, the courts must confront these conflicts and weigh the interests.

Those who argue that law enforcement does not need to obtain a warrant to use GPS technology contend that the many uses of GPS technology simply “enable[] the police to be more effective in detecting crime,”[36] stamping it out at its earlier stages and preventing it from even occurring. Among others, the advantages in such technology, especially when police officers are engaged in a high-speed chase, decrease the likelihood of endangering the public, the police, or even the suspect from the potential hazards involved in such situations. Moreover, as already discussed, the efficiencies of GPS technology have enabled officers to prevent one woman from being raped and any further rapes from being committed by the suspect. Likewise, proponents of GPS use maintain that officers have been able to prevent drug production and distribution by the respective suspects they apprehended. GPS technology, then, can be preventive, saving lives and time; it decreases the cost of having officers out conducting surveillance while simultaneously allowing more places and people to be monitored and more action to be taken when criminal activity occurs. In short, from this perspective, GPS devices make law enforcement’s job more efficient, safer, and effective, providing for a securer and safer society. They would argue that GPS technology functions "merely as an enhancing adjunct to the surveilling officer’s eyes,"[37] and naked eye observation does not offend the Fourth Amendment because a person does not have a reasonable expectation of privacy in activity that any member of the public might observe. GPS technology is merely a matter of efficiency, they conclude, and the courts "have never equated police efficiency with unconstitutionality."[38]

Conversely, proponents of requiring law enforcement to obtain judicial permission before using a GPS device contend that efficiency, security, and safety come at some unacceptable costs.[39] At "the press of a button," for example, a GPS device can disclose one’s activities that are "indisputably private [in] nature," such as “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.”[40] It does not only disclose "where we go, but by easy reference [it reveals] our associations — political, religious, amicable and amorous," as well as "the pattern of our professional and avocational pursuits."[41] GPS technology "is not a mere enhancement of human sensory capacity," because the information it can capture is potentially tantamount to, "at a minimum, millions of additional police officers and cameras on every street lamp."[42] A person does have a reasonable expectation of privacy from the government’s ability to obtain such comprehensive and detailed information. The ability of the government to engage in monitoring that exposes this type of information, some even argue, foreshadows "Orwellian images of Big Brother secretly following your movements through the small device in your pocket"[43] or car, especially when the pervasive monitoring has been prolonged and continuous — for 28[44] and even 65[45] days, in certain cases. Besides, they contend, unless the situation is an emergency, it is not that onerous a burden to require the police to take a few minutes to obtain judicial approval before they use such revealing technology; a warrant is just not that hard to get.[46]

References Edit

  1. Senate Judiciary Committee Report on the Electronic Communications Privacy Act of 1986 (S. 2575), Report 99-541, 99th Cong., 2d Sess., at 5 (1986).
  2. 533 U.S. 27, 34 (2001) (full-text).
  3. 476 U.S. 207, 213-15 (1986) (full-text).
  4. 460 U.S. 276, 281-84 (1983) (full-text).
  5. However, the Court found that the arrest warrant was valid, as it was based on an affidavit, which contained a significant amount of evidence from sources other than the beeper.
  6. 468 U.S. 705, 713-16 (1984).
  7. The Court declined to decide whether a search warrant to monitor a beeper would require probable cause or reasonable suspicion.
  8. United States v. Maynard, 615 F.3d 544, 564 (D.C. Cir. 2010) (full-text) (listing several states and the relevant legislation in each). 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.
  9. See State v. Weaver, 12 N.Y.3d 433, 909 N.E.2d 1195, 882 N.Y.S.2d 357 (2009) (GPS use, under state constitution, is unconstitutional without a warrant); State v. Jackson, 76 P.3d 217 (Wash. 2003); State v. Campbell, 759 P.2d 1040 (Or. 1988); Delaware v. Biddle, No. CRIM.A. 05-01-1052, 2005 WL 3073593, at *1 (Del. Com. Pl. May 5, 2005); see also Commonwealth v. Connolly, 913 N.E.2d 356 (Mass. 2009) (installation of a GPS device was a seizure).
  10. 909 N.E.2d 1195 (N.Y. 2009).
  11. Id. at 1202.
  12. Id.
  13. See Osburn v. State, 44 P.3d 523 (Nev. 2002); Foltz v. Commonwealth, 698 S.E.2d 281 (Va. Ct. App. 2010), reh’g en banc granted and mandate stayed by 699 S.E.2d 522 (Va. Ct. App. 2010).
  14. 698 S.E.3d 281 (Va. Ct. App. 2010), reh’g en banc granted and mandate stayed by 699 S.E.2d 522 (Va. Ct. App. 2010).
  15. Id. at 286.
  16. See, e.g., United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); United States v. Marquez, 605 F.3d 604 (8th Cir. 2010); United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); United States v. Eberle, 993 F.Supp. 794 (D. Mont. 1998); United States v. Moran, 349 F.Supp.2d 425 (N.D.N.Y. 2005); United States v. Burton, 698 F.Supp.2d 1303 (N.D. Fl. 2010); United States v. Williams, 650 F.Supp.2d 633 (W.D. Ky. 2009); United States v. Jesus-Nunez, No. 1:10-CR-00017-01, 2010 WL 2991229, at *1 (July 27, 2010).
  17. 591 F.3d 1212 (9th Cir. 2010).
  18. Id. at 1213.
  19. Id.
  20. Id. at 1214.
  21. Id. at 1214-15.
  22. Id. at 1216.
  23. Id. at 1216-17 (quoting Knotts, 460 U.S. at 284) (alterations in original).
  24. Knotts, 460 U.S. at 284.
  25. Pineda-Moreno, 591 F.3d at 1216 n.2 (quoting Garcia, 474 F.3d at 998).
  26. United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010).
  27. Id. at 558.
  28. Id. at 567.
  29. Id. at 556-58 (“In short, Knotts held only that ‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,’ not that such a person has no reasonable expectation of privacy in his movements whatsoever, world without end.”).
  30. Id. at 558-67.
  31. See, e.g., Connolly, 913 N.E.2d at 822.
  32. This approach could be called the “Mosaic Theory.” The idea is that when GPS surveillance is prolonged, the sum of otherwise publicly exposed activities reveals patterns that are reasonably expected to be private, thus constituting a search, which requires a warrant. See Orin Kerr, "D.C. Circuit Introduces 'Mosaic Theory' of Fourth Amendment, Holds GPS Monitoring a Fourth Amendment Search," The Volokh Conspiracy (Aug. 6, 2010).[1] The court in Maynard used this theory and tied it to the Supreme Court’s dragnet exception in Knotts. However, unlike the 9th and 7th Circuits, the D.C. Circuit read it to apply when law enforcement engages in prolonged surveillance, not just mass surveillance. Maynard, 615 F.3d at 557-63.
  33. Note that the United States has petitioned for a rehearing en banc to the court’s decision in Maynard. Orin Kerr, "DOJ Petitions for Rehearing in DC Circuit 'Mosaic Theory' GPS Surveillance Case," The Volokh Conspiracy (Sept. 22, 2010). [2]
  34. Orin S. Kerr, "The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution," 102 Mich. L. Rev. 801, 806 (2004).
  35. See generally Renee McDonald Hutchins, "Tied Up in Knotts? GPS Technology and the Fourth Amendment," 55 U.C.L.A. L. Rev. 409, 414 (2007); see also Renee McDonald Hutchins, "The Anatomy of a Search: Intrusiveness and the Fourth Amendment," 44 U. Rich. L. Rev. 1185, 1189 n.22 (May 2010) (noting the current debate between whether the legislature or the courts is the preferred arbiter in the area of GPS technology).
  36. Pineda-Moreno, 591 F.3d at 1216 (quoting Knotts, 460 U.S. at 284).
  37. Weaver, 909 N.E.2d at 1199.
  38. Knotts, 460 U.S. at 284.
  39. Some cite, for example, an "Historical Review of the Constitution and Government of Pennsylvania," title page (1759) (Arno Press reprint 1972) (stating that “[t]hose who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”) (commonly attributed to Benjamin Franklin).
  40. Weaver, 909 N.E. 2d at 1198-99.
  41. Id.
  42. Id.
  43. Michael Isikoff, "The Snitch in Your Pocket," Newsweek, Feb. 19, 2010.[3]; see also Pineda-Moreno, 617 F.3d 1120, 1121, 1126 (9th Cir. 2010) (Kozinski, C.J., dissenting from the denial of rehearing en banc).
  44. Maynard, 615 F.3d at 558.
  45. Weaver, 909 N.E 2d at 1195.
  46. “[O]fficers in Utah can get electronic warrants in about 20 minutes. ‘It’s not that hard,’” a Utah County Sherriff stated. Janice Peterson, "Confliction Views on No-warrant GPS Ruling," Daily Herald (Sept. 5, 2010).[http://www.heraldextra.com/news/local/article_6d44220a-c8d1-5d0b-a072-bee72e97a835.html

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