Much catching up to do. I have been inundated with case matters over the past month — most of a constitutional nature, or involving labor law. Any way, as I ply through the issues I have set aside for comment and posting, I wanted to start with this nicely crafted article re: the constitutional issues arising from GPS devices. Credit to the National Law Journal and Laurie Levenson.
Laurie L. Levenson
The National Law Journal
Technology continues to advance, but the law cannot always keep up with it. One of the biggest areas of controversy involves tracking devices, such as Global Positioning System and cell phone locators, to conduct surveillance in criminal investigations. While many courts have given their blessing to these devices, others are troubled and believe that such surveillance violates privacy rights and the Fourth Amendment. Now it appears that the issue may be headed to the U.S. Supreme Court. On April 15, acting Solicitor General Neal Katyal petitioned the Supreme Court for review of U.S. v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), petition sub nom, U.S. v. Jones, No. 1259 (April 15, 2011), a landmark decision striking down the warrantless use of GPS devices to conduct round-the-clock surveillance of suspects’ vehicles.
Almost three decades ago, the Court held in U.S. v. Knotts, 460 U.S. 276 (1983), that the use of a beeper device to track a suspect to his drug lab was not a search. Because the tracking device did no more than follow the suspect’s movements along public thoroughfares, Leroy Knotts had no reasonable expectation of privacy. Law enforcement officers saw the decision as giving a green light to the use of new surveillance technology to follow suspects.
In the past few years, defense counsel have fought back, arguing that the Supreme Court in Knotts never meant to authorize the use of 24-hour surveillance. They have argued that today’s type of surveillance is so invasive and comprehensive that it triggers Fourth Amendment protections. While the U.S. courts of appeals for the 7th and 9th circuits have rejected these arguments — see U.S. v. Cuevas-Perez, 2011 U.S. App. Lexis 8675 (7th Cir. April 28, 2011); U.S. v. Garcia, 474 F.3d 994, 996-998 (7th Cir.), cert. denied, 552 U.S. 883 (2007); U.S. v. Pineda-Moreno, 591 F.3d 1212, 1216-1217 (9th Cir. 2010), petition for cert. filed (U.S. Nov. 10, 2010) (No. 7515) — a panel of the D.C. Circuit ruled in the defendants’ favor.
In Maynard, the court distinguished Knotts and held that the round-the-clock use of GPS devices without a warrant violated the Fourth Amendment. Lawrence Maynard and his co-defendant, Antoine Jones, were under investigation for conspiracy to distribute cocaine. Task Force agents installed a GPS tracking device on Jones’ Jeep. The warrant they had originally obtained to use the GPS device expired before they placed the device. Nonetheless, the agents continued to keep tabs on Jones’ Jeep for 28 days as it drove to a major stash house in the vicinity. They also gathered information about the suspects’ activities from cell phone records and wiretaps. Using the collective information they gathered, the officers successfully raided the stash houses and recovered close to 100 kilograms of cocaine.
Jones moved to suppress the evidence. The district court granted the motion in part and denied it in part. It held that, although information obtained about the Jeep’s activities while it was on public roads was admissible, the GPS information regarding the Jeep while it sat parked at Jones’ residence was not. Using the admissible evidence, the government was able to convict Jones and he was sentenced to life imprisonment.
On appeal, the D.C. Circuit reversed. The appellate panel was not convinced that Knotts authorized the GPS devices used in the case. Justice Douglas Ginsburg wrote that prolonged monitoring was not covered by Knotts, as the Supreme Court had “explicitly distinguished between the limited information discovered by use of the beeper — movements during a discrete journey — and more comprehensive and sustained monitoring of the sort [in Jones’ case].” 615 F.3d at 557. The panel saw prolonged, 24-hour surveillance as raising the issue that the Court reserved in Knotts when it wrote, “if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Id. quoting Knotts, 460 U.S. at 283-84. After a divided D.C. Circuit rejected the government’s petition for en banc review, the acting solicitor general has now petitioned the Supreme Court for review of the case.
In explaining their decision, the Maynard judges stated that the problem is not with all electronic monitoring of suspects or their cars. Rather, the problem is with allowing law enforcement to use technology that gives such prolonged and detailed surveillance that it reveals nearly everything about someone’s life. Although no single journey reveals the habits and patterns of someone’s life, using GPS devices, the government can use a “mosaic theory” to reveal more about a person than any individual trip viewed in isolation. Too easily, “the whole [will] reveal far more than the individual movements it comprises.” Id. at 562. For example, “Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit. … The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.” Id.
Worries about “Big Brother” government loom large in today’s highly technological society. The government has the capacity to engage in prolonged surveillance that will ultimately reveal an intimate picture of a person’s life. Although the government argued that a GPS device is merely the modern equivalent of human surveillance, the defense contended that it is categorically different in providing a low-cost, foolproof tracking alternative unmatched by human visual surveillance. The Maynard court adopted this theory and held that Fourth Amendment protections should be provided.
A number of state courts have agreed with this reasoning and have held that GPS surveillance must be authorized by the courts. SeeDelaware v. Holden, 2010 Del. Super. Lexis 493 (2010) (reviewing state court decisions holding that GPS surveillance constitutes a search). Building on this premise, other courts have limited the government’s use of other types of technologies to obtain wholesale information regarding a suspect’s activities.
For example, in In re Application of the U.S. for Historical Cell Site Data, 747 F. Supp. 2d 827 (S.D. Texas 2010), the district court denied a government request under the Stored Communications Act to compel cellphone service providers to produce cell site information for a targeted cellphone. The court held that, because cell site information is so specific, it crosses the line set by the Supreme Court in U.S. v. Karo, 468 U.S. 705 (1984): It transmits information from locations not visible to public surveillance. See alsoIn re Application of U.S., 736 F. Supp. 2d 578 (E.D.N.Y. 2010) (disallowing request for lengthy periods of monitoring).
Yet it is hard to stem the tide of surveillance technology being used by law enforcement. As the government noted in its petition inJones, many courts have exempted tracking devices from the Fourth Amendment’s warrant requirements. Besides the 7th and 9th circuits, the 8th Circuit has ruled that GPS tracking does not violate a defendant’s privacy. U.S. v. Marquez, 605 F.3d 604 (8th Cir. 2010). Lower courts have followed suit.
In U.S. v. Jesus-Nunez, 2010 U.S. Dist. Lexis 76107 (M.D. Pa. July 27, 2010), the district court held that the warrantless use of a GPS tracking device to monitor a defendant’s vehicle movements for a year did not violate the defendant’s Fourth Amendment rights. Similarly, in U.S. v. Dantzler, 2010 U.S. Dist. Lexis 68753 (W.D. La. June 16, 2010), the district court held that the government could obtain from the OnStar Global Positioning System information it had regarding the movements of leased automobiles that had the feature installed in them. Just weeks ago, in U.S. v. Narrl, 2011 U.S. Dist. Lexis 45595 (D.S.C. April 27, 2011), the court held that the use of a GPS device did not violate Knotts. Similarly, in Devega v. State, 286 689 S.E.2d 293 (Ga. 2010), the Georgia Supreme Court held that police may have a cellular telephone provider “ping” a suspect’s phone to locate him, and the 3d Circuit has held that police do not need probable cause to get information from a cellphone provider regarding the location of a person, as determined by information collected by cell towers. See In re Matter of Application, 620 F.3d 304 (3d Cir. 2010).
State and federal courts continue to reject the argument that placing a GPS device on a vehicle constitutes an illegal search or seizure — U.S. v. Sparks, 750 F. Supp. 2d 384 (D. Mass. 2010); U.S. v. Coombs, 2009 U.S. Dist. Lexis 105547 (D. Ariz. Nov. 12, 2009); State v. Johnson, 190 Ohio App. 3d 750 (Ohio 12th Ct. App. 2010); 57 Va. App. 68 (Va. Ct. App. 2010) — especially when the defendant later tries to disassociate himself from the vehicle used for illegal activities. See People v. Tolliver, 73 Cal. Rptr. 3d 375 (Calif. 3d Ct. App. 2008). Yet others continue to follow Maynard‘s approach.
Technology marches on, but the Court needs to catch up and give guidance as to how this technology can be used. How far can the government go in monitoring our movements? Is there a right of privacy that protects us from nonstop monitoring? Where does the Fourth Amendment end and the unrestricted use of surveillance technology begin?
Laurie L. Levenson is professor of law and David W. Burcham Chair in Ethical Advocacy at Loyola Law School, Los Angeles.