A “Right to be Secure” From GPS Tracking? Not Under the Fourth Amendment

Andrew Dructor, Staff Writer

I. Intro

In May of 2009, the New York Court of Appeals held that under the New York State Constitution police agencies would be required to obtain a warrant before attaching a GPS device in order to track a suspect’s automobile.1  However, the Court noted that this issue is still unsettled as a matter of federal law under the Fourth Amendment.2  This blog post describes what GPS is, provides current Supreme Court Fourth Amendment analysis of “search and seizure,” describes how courts around the country have ruled on the issue, and concludes by arguing that it is time for the Supreme Court to change its Fourth Amendment analysis in order to take into account the history that shaped it.

II. GPS

Global Positioning System (GPS) was developed in the 1970s by the U.S. Department of Defense and was made possible through a network of satellites.3 It provides twenty-four-hour-a-day location information accurate within one meter (1.094 yards, 3.281 feet).4  This also enables it to track direction and speed.  GPS devices have become “a mainstay of transportation systems worldwide” and are small enough to fit in cell phones and wristwatches.5  GPS devices are also becoming cheaper and can be purchased for under $100.6 

GPS has also become a tool to fight crime.  John Wesley Hall, president of the National Association of Criminal Defense Lawyers, commented: “I’ve seen them in cases from New York City to small towns — whoever can afford to get the equipment and plant it on a car.”7  The few law enforcement authorities who have commented on GPS use have noted that it “is essentially the same as having an officer trail someone, just cheaper and more accurate.”8  GPS takes the place of the officer who would normally have to follow the suspect himself.  This allows police authorities to use less man-power tailing suspects because all of the GPS devices could be monitored by a single officer in one room.   

III. Supreme Court Fourth Amendment Analysis

The Supreme Court has not ruled on the issue of whether attachment of a GPS device to track an automobile would violate the Fourth Amendment.  However, in 1983, in United States v. Knotts, the Supreme Court ruled that the warrantless use of a beeper placed in a five-gallon drum of chloroform to monitor the movement of the drum in an automobile from its place of purchase to the suspect’s home did not violate the Fourth Amendment since the installation of the beeper in the container was not challenged and the use of the device “amounted principally to the following of an automobile on public streets and highways.”9 The Court had previously ruled that one has a diminished expectation of privacy in an automobile because “[i]t travels public thoroughfares where both its occupants and its contents are in plain view.”10  Thus, although the beeper enhanced the law enforcement’s ability and made them more efficient, it did not invade the suspect’s expectation of privacy.11  However, the Court cautioned that if “dragnet type law enforcement practices” that amount to twenty-four hour surveillance are implemented the Court would reexamine its holding to determine if different constitutional principles would apply.12

In 1984, the Court confronted two of the questions left unanswered in Knotts.  In Karo v. United States, the Court ruled that placement of a beeper by law officials in a container did not violate the Fourth Amendment if the owner of the container gave his consent and that the transfer of the container to a third party was neither a “search” nor a “seizure.”13  “A ‘search’ occurs ‘when an expectation of privacy that society is prepared to consider reasonable is infringed’”14 while a “‘seizure’ of property occurs when ‘there is some meaningful interference with an individual’s possessory interests in that property.’”15  The Court held there was no search because no private information was conveyed by the mere transfer of a container installed with a beeper and there was no seizure because no one’s “possessory interest was interfered with in a meaningful way” even though there was a “technical trespass on the space occupied by the beeper.”16 However, the Court did rule that monitoring of the beeper once it entered a private residence violated the Fourth Amendment since a “private residence[] [is a place] in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.”17 Thus, the Court noted that a warrant would be required if there was any likelihood that the beeper would be withdrawn from public view which would have the “salutary effect of ensuring that use of beepers is not abused.”18

In 2001, the Court found the need to put a check on law enforcement use of technology. The question facing the Court in Kyllo v. United States. was whether the use of an Agema Thermovision 210 thermal imager to detect infrared radiation which revealed the relative heat of rooms in a home was a “search” under the Fourth Amendment that would require the government to obtain a warrant.19  The Court, in reaching its decision, emphasized that the home is a “constitutionally protected area” where “privacy expectations are most heightened.”20  However, the Court also acknowledged some of the weaknesses in the expectation of privacy analysis and sought to limit the “power of technology to shrink the realm of guaranteed privacy.”21  Thus, the Court held that “[w]here, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ’search‘ and is presumptively unreasonable without a warrant.”22

Therefore, current Fourth Amendment analysis will confront the use of GPS by focusing on whether the technology is in general public use, whether it invades a “constitutionally protected area,” and whether use of the technology invades a “subjective expectation of privacy that society recognizes as reasonable.”23  A GPS unit attached to an automobile also does not invade a “constitutionally protected area” because the Supreme Court has already indicated that one has a diminished expectation of privacy in an automobile.24  The GPS unit does not reveal the conversations inside the car, but rather simply provides location, speed, and direction data which could also be established by following an automobile on public streets.  Thus, under current Fourth Amendment analysis, the use of a GPS device would not constitute a “search” and not require a warrant.  A look across the country reveals that courts have followed this rationale.  The attachment of the device would also not constitute a seizure because no “possessory interest” is being interfered within any meaningful way.25  However, some states have ruled that their own state’s Constitution provides broader protection for its citizens than the Fourth Amendment, and thus, require warrants before the police use GPS.26 

IV. GPS in Court

In 2007, Judge Posner weighed in on the topic when the Seventh Circuit ruled that use of a GPS device is not a search requiring the police to obtain a warrant under the Fourth Amendment.27  Posner, however, noted that unlike old tracking methods, GPS devices were “commercially available for a couple hundred of dollars” and made mass surveillance possible.28  Thus, Posner concluded that the Fourth Amendment would be implicated if the police started attaching GPS “devices to thousands of cars at random” in order “to identify suspicious driving patterns” or if a program was initiated to track all vehicular movement.29  In 2009, the Court of Appeals of Wisconsin followed the Seventh Circuit’s reasoning.30  The Court, “troubled” by the implication that “police are seemingly free to secretly track anyone’s public movements with a GPS device,” urged the Wisconsin legislature to act in limiting the use of GPS tracking technology.31

Other courts that are troubled by the Fourth Amendment’s lack of protection have looked to their states’ Constitution for help.  Both the Washington and Oregon Supreme Courts have ruled under their respective states’ Constitutions that use of tracking devices attached to automobiles is a “search” and thus requires a warrant.32  The Oregon Supreme Court argued that debating “reasonable expectations of privacy” in order to define a search was misguided.33  “The phrase becomes a formula for expressing a conclusion rather than a starting point for analysis, masking the various substantive considerations that are the real bases on which Fourth Amendment searches are defined,” added the Court.34  The Washington Supreme Court highlighted how the accumulation of data could reveal personal “preferences, alignments, associations, personal ails and foibles” that “provide a detailed picture of one’s life.”35  The Court was also persuaded by the fact that if warrants are not required “then there is no limitation on the state’s use of these devices on any person’s vehicle, whether criminal activity is suspected or not.”36

The New York Court of Appeals, in deciding that GPS-tracking was a search requiring police to obtain a warrant under the its Constitution, acknowledged that it reached its ruling using the same principles that would apply under Fourth Amendment analysis.37  The Court argued that it was time to revisit the question left open in Knotts since GPS and new technology now allows authorities to “facilitate[] a new technological perception of the world in which” a “person’s progress . . . into both public and private spatial spheres, can be charted and recorded over lengthy periods” in order to create a “detailed profile” of where we go and our associations.38  Thus, the Court held that although one has a diminished expectation of privacy in a vehicle on a public thoroughfare, “the residual privacy expectation” one retains while in their vehicle is enough to require authorities to acquire a warrant before tracking a vehicle using GPS.39  The Court admonishes that to hold otherwise “would be to countenance an enormous unsupervised intrusion by the police . . . upon personal privacy.”40

V. Conclusion

Thus, it appears time for the Supreme Court to change direction in its Fourth Amendment analysis in order to keep pace with technology and a society that is conducting an increasing amount of its private activities in the public sphere.41  In order for the Supreme Court to change direction it needs to look to the history of the amendment.  Fear of the arbitrary abuse of power motivated the creation of the Fourth Amendment.42  General warrants and writs of assistance gave customs officers the discretion to seek evidence against someone by searching wherever they wanted to and seizing whatever they desired.43 These general warrants were often “aimed at muzzling critics of the government” in England and the colonies.44  Judges in both England and the colonies had struck down general warrants as violating the common law on previous occasions.45  The colonists feared mankind’s inability to “withstand the temptations of power” and worried “that legislation might make general warrants legal in the future.”46  The Fourth Amendment was designed to prevent this by requiring warrants describing the thing to be searched for and the person and place to be searched and by placing the judiciary as the safe keeper of this right by “empower[ing] magistrates to decide for themselves whether an officer had probable cause.”47 GPS devices can easily be used as a tool to harass political or religious dissent or just to target certain individuals or groups.  In Thomas Y. Davies’ extensive study of the Fourth Amendment he emphasized that the authentic history of the amendment “provided a much stronger notion of a ‘right to be secure’ in person . . . from government intrusions.48  A “right to be secure” approach to the Fourth Amendment would prevent the possibility of innocent people being targeted when there is no specific suspicion of wrongdoing.  Thus, we all would be secure from the feared program of mass surveillance and the abuse of the personal information that would be acquired from twenty-four-hour-a-day tracking.

Edited by Sara Mase and Stephen Dushko

____________________________________________________________

[1] People v. Weaver, 12 N.Y.3d 433, 447 (2009).

[2] Id. at 445.

[3] Nat’l Space-Based Positioning, Navigation, and Timing Coordination Office, Global Positioning System: Serving the World, http://www.gps.gov/index.html (last visited September 15, 2009) [hereinafter Global Positioning]; Eva Marie Dowdell, Note and Comment, You Are Here! – Mapping the Boundaries of the Fourth Amendment with GPS Technology, 32 Rutgers Computer & Tech. L.J. 109, 116 (2005).

[4] Darren Handler, The Eye in the Sky & Our Digital Dog Tags: An Exploratory Review of Global Positioning Systems (“GPA”) & Potential Privacy Implications, 18 St. Thomas L. Rev. 853, 854 (2006); Dowdell, supra note 3, at 116.

[5] Global Positioning, supra note 3; Waseem Karim, Note, The Privacy Implications of Personal Locators: Why You Should Think Twice Before Voluntarily Availing Yourself to GPS Monitoring, 14 Wash. U.J.L. & Pol’y 485, 485–86, 499 (2004); see also Renee McDonald Hutchins, Ties Up in Knotts?  GPS Technology and the Fourth Amendment, 55 UCLA L. Rev. 409, 419 (2007) (finding that one GPS device measured as little as “2.56 inches by 1.7 inches by 1.1 inches and weigh[ed] just over 3 ounces.”).

[6] Walmart, Shopping Cart (Sept. 16, 2009), http://www.walmart.com/catalog/submapPricingPopup.do?product_id=10670232.

[7] Ben Hubbard, Police Turn to Secret Weapon: GPS Device, Washington Post, Apr. 13, 2008, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/08/12/AR2008081203275.html.

[8] Id.

[9] United States v. Knotts, 460 U.S. 276, 281 (1983).

[10] Id. (quoting Cardwell v. Lewis, 17 U.S. 583, 590 (1974) (plurality)).

[11] Id. at 284.

[12] Id. at 283–84.

[13] United States v. Karo, 468 U.S. 705, 712 (1984).

[14] Id. at 712 (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)).

[15] Id.

[16] Id.

[17] Id. at 714.

[18] Id. at 717.

[19] Kyllo v. United States, 533 U.S. 27 (2001).

[20] Id. at 33, 34.

[21] Id. at 34.

[22] Id. at 40.

[23]Id. at 32, 33.

[24] See United States v. Knotts, 460 U.S. 276 (1983).

[25] United States v. Karo, 468 U.S. 705, 712 (1984).

[26] See e.g., State v. Campbell, 759 P.2d 1040 (Or. 1988); see also State v. Jackson, 76 P.3d 217 (Wash. 2003).

[27] United States v. Garcia, 474 F.3d 994 (7th Cir. 2007).

[28] Id. at 995, 998.

[29] Id. at 998.

[30] State v. Sveum, 769 N.W.2d 53 (2009).

[31] Id. at 60–61.

[32] State v. Campbell, 759 P.2d 1040 (Or. 1988); State v. Jackson, 76 P.3d 217 (Wash. 2003).

[33] Campbell, 759 P.2d at 1044.

[34] Id.

[35] Jackson, 76 P.3d at 223.

[36] Id. at 224.

[37] People v. Weaver, 12 N.Y.3d 433, 445 (2009).

[38] Id. at 441-42.

[39] Id. at 444.

[40] Id. at 445.

[41] See id. at 442-43.

[42] Boyd v. United States, 116 U.S. 616, 630-31 (1886).

[43] Id. at 625-26; see also Leonard Levy, Origins of the Fourth Amendment, 114 Pol. Sci. Q. 79, 83 (Spring 1999); see generally Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999).

[44] David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1799 (2000).

[45] Levy, supra note 43, at 86, 91; Davies, supra note 43, at 566-67, 581.

[46] Davies, supra note 43, at 590.

[47] Levy, supra note 43, at 100; see also id. at 576-78.

[48] Davies, supra note 43, at 749-50.

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2 Comments

Filed under Constitutional Law, Criminal Law, New York Court of Appeals, Uncategorized

2 responses to “A “Right to be Secure” From GPS Tracking? Not Under the Fourth Amendment

  1. Ted

    Excellent points, Andrew. I wonder if the NY COA did a good enough job balancing personal privacy with the needs of law enforcement… I’m not sure I would make too direct a link between the facts in Kyllo and those in Weaver.

  2. Lots of Good information in your blogpost, I bookmarked your blog so I can visit again in the future, Thanks

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