Advice to Officers after Jones

I’ve had quite a few questions from officers and others about United States v. Jones, the Supreme Court’s recent GPS tracking decision. I previously summarized the case here. Below, I’ve collected some of the questions I’ve been asked and my answers. It should go without saying that officers should check with their supervisors and agency attorneys before adopting the advice below.

1. Is judicial authorization always necessary before installing and using a GPS tracking device?

Jones doesn’t answer this question. It holds that the installation and monitoring of such a device is a search, but it doesn’t address the circumstances under which such a search is reasonable for Fourth Amendment purposes. Part III of the opinion notes that the government argued that the search was reasonable even without judicial authorization, but the Court declined to consider that argument because the government had not raised it below. However, the general rule is that “[e]xcept in certain well-defined circumstances, a search . . . is not reasonable unless it is accomplished pursuant to a judicial warrant.” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989). Thus, while there may be cases in which, for example, exigent circumstances would justify the use of a tracking device without prior judicial authorization, absent such unusual circumstances, it appears that prior judicial approval is required. A somewhat contrary view from Supreme Court specialist Tom Goldstein is here, revised and refined further in a longer post here. He speculates that in a future case, one of the Justices in the Jones majority might decide that the installation of a tracking device is such a minimal intrusion that it doesn’t even require full probable cause, much less prior judicial authorization. Although I don’t find his reasoning completely persuasive, I do think that an argument could be made around the vehicle exception to the warrant requirement. At this point, however, the fate of such an argument is unclear, so the safest course is to obtain judicial approval.

2. Is there a difference between stick-on and hard-wired devices?

There are two basic types of tracking devices: stick-on devices, which attach magnetically or otherwise to the exterior of a vehicle and which contain their own batteries, and hard-wired devices, which are connected to the vehicle’s battery to ensure a long-lasting and continuous power supply. Before Jones, it was possible to argue that while judicial authorization was necessary in order to install a hard-wired device, using a stick-on device was not intrusive enough to constitute a search or to require a warrant. But Jones pretty clearly involved a stick-on device, and Justice Scalia’s majority opinion nonetheless characterized the installation of the device as a trespass and described the officers as “physically occup[ying]” the defendant’s vehicle. In other words, after Jones, there’s no legal distinction between the two types of devices.

3. Does the duration of monitoring matter?

I don’t think so. The Jones majority states that where there is a “[t]respass . . . conjoined with . . . an attempt to find something or to obtain information,” there is a search. It neither states nor suggests that the amount of information obtained, i.e., the duration of the monitoring, matters at all in this type of case.

4. Should judicial authorization take the form of a search warrant, or may a court order be used instead?

Because Jones is limited to deciding whether the installation and monitoring of a tracking device is a search, it doesn’t address this issue directly. To be sure, the majority and Justice Sotomayor’s concurrence both note the lack of a valid “warrant.” However, the statutory procedures associated with search warrants in North Carolina don’t fit well with GPS monitoring. For example, an officer who gives a suspect notice of his identity and provides the suspect with a copy of the warrant before installing a tracking device, as required by G.S. 15A-249 and G.S. 15A-251, is not likely to get useful information from the device. By comparison, federal law expressly provides a procedure for obtaining search warrants for tracking devices. See Fed. R. Crim. P. 41. Because of the lack of “fit” between the statutory procedure and the manner in which tracking devices are used, I recommend obtaining an ex parte court order, under the court’s inherent authority, to obtain advance judicial approval for GPS tracking. Our appellate courts have endorsed the use of investigative court orders in other contexts. See In re Superior Court Order Dated April 8, 1983, 315 N.C. 378 (1986) (holding that a superior court judge has inherent authority to issue an investigative order compelling the production of bank records relevant to a criminal investigation where the “other options available to the district attorney at the investigatory stage of the proceeding provide inadequate means of obtaining the desired information”). Alternatively, an officer could seek a search warrant but ask a judge to approve deviations from the statutory procedures. Presumably a judge has the authority to approve such variances in appropriate circumstances. Cf. In re Investigation into Death of Cooper, 200 N.C.App. 180 (2009) (holding that judges may seal search warrant applications in appropriate cases). However, I believe that the court order approach is better supported by existing law and so is preferable.

5. What should be included in the application?

In order to comport with the Fourth Amendment, the court order process likely should be as similar to the search warrant process as possible given the context of GPS tracking. Therefore, the application should contain a factual statement, under oath, establishing probable cause to support the use of the tracking device. Although probably not legally required, it may be helpful to explain why officers need to use a tracking device rather than other tools such as visual surveillance.

6. What should be included in the order itself?

At a minimum, the order should include a finding of probable cause and a statement authorizing the installation and monitoring of the tracking device, including authorization to enter private property to install the device, if needed. The order probably should also:

• Set a time limit on monitoring, for example, 30 days unless extended in a subsequent order. The relevant Federal Rule of Criminal Procedure provides for a 45-day renewable period of monitoring.
• Address whether and how the subject is to be notified of the use of the device. For example, the order could provide for service of the order upon the cessation of monitoring. The federal rule provides for service within 10 days of the completion of monitoring, unless the judge finds a reason to do otherwise.
• Finally, the order could require the officer to notify the issuing judge once installation and/or monitoring are complete. This would be akin to the return requirement for search warrants.

7. Must the order be issued by a superior court judge?

Nothing in Jones or in any other case or statute addresses this directly, but my advice is to request such an order from a superior court judge. Only such judges may issue orders permitting other forms of electronic surveillance, such as pen register orders under G.S. 15A-263. And In re Superior Court Order refers only to the inherent authority of a superior court judge. Our appellate courts may later determine that other types of judicial officials have the authority to enter investigative orders of this type, but unless and until they do so, the safest course is to address tracking requests to superior court judges.

8. Can a North Carolina judge authorize tracking a suspect outside the state?

Once again, nothing in Jones addresses this question directly. Here is what I wrote about the issue in a now-dated paper about GPS tracking:

The second concern is whether a North Carolina court has the power to authorize a Fourth Amendment intrusion outside of the state. Presumably a North Carolina court cannot issue a search warrant for, say, a Virginia residence. See, e.g., G.S. 15A-243 (referring to “[a] search warrant valid throughout the State”). Thus, one might argue, a North Carolina court cannot authorize the use of a GPS device to track a vehicle’s movement outside of North Carolina, at least if that movement includes movement within a private area. On the other hand, because the officer who installs and monitors the GPS device never leaves North Carolina, perhaps the analogy is inapt. An alternative analogy would again be to wiretapping, where a North Carolina court order allows the interception of telephone calls that involve parties in other states. In federal court, this problem is solved by 18 U.S.C. § 3117, which provides that “[i]f a court is empowered to issue a warrant or other order for the installation of a mobile tracking device, such order may authorize the use of that device within the jurisdiction of the court, and outside that jurisdiction if the device is installed in that jurisdiction.” It is not clear how North Carolina’s appellate courts will address this issue.

I currently lean slightly towards the view that monitoring outside the state is permissible. Indirectly, the analysis of the Jones majority supports this view. Its emphasis is on the trespassory nature of the installation of a tracking device, a trespass that will take place in North Carolina. In any event, I am not aware of any way to stop a GPS tracking device from recording data, so there may be nothing that can be done about this in practice.

9. What should be done with devices that are currently in place but that were installed without judicial authorization?

The safest course is to remove them, and to obtain judicial authorization for re-installation. Of course, information obtained from the existing warrantless installation should not be used to establish probable cause for the re-installation. Alternatively, it may be sufficient to obtain judicial authorization to leave the device in place, again without using information so far obtained from the device to support its continued use.

If there are additional questions about Jones, let me know and I’ll do my best to address them.