Advice to Officers after Jones

Tag Archives: GPS tracking

Advice to Officers after Jones

Posted on January 30, 2012 by Jeff Welty

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.

Category: Search and Seizure, Uncategorized | Tags: GPS tracking, jones

United States Supreme Court to Review GPS Tracking Case?

Posted on April 18, 2011 by Jeff Welty

Remember United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010)? That’s the drug case in which the D.C. Circuit held that “prolonged GPS monitoring [of a suspect] defeats an expectation of privacy that our society recognizes as reasonable,” and therefore typically requires a warrant. I blogged about Maynard here. The circuit court subsequently denied rehearing en banc by a divided vote. United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010) (en banc).

On Friday, the Department of Justice filed this petition for certiorari, asking the United States Supreme Court to review the case. The question presented by the petition is “whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment.” (As an aside, the question contains an embarrassing mistake, which I identify after the break. Think about it for a minute before you click — you already have enough information to catch it yourself.)

Here is the introduction to, and summary of, the section of the petition that argues for the necessity of Supreme Court review:

The decision of the court of appeals conflicts with this Court’s longstanding precedent that a person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another, even if “scientific enhancements” allow police to observe this public information more efficiently. See United states v. Knotts, 460 U.S. 276, 282-284 (1983). The decision also creates a square conflict among the courts of appeals. The Seventh and Ninth Circuits have correctly concluded that prolonged GPS monitoring of a vehicle’s movements on public roads is not a “search” within the meaning of the Fourth Amendment. The Eighth Circuit, in rejecting a challenge to GPS tracking, stated that a person has no reasonable expectation of privacy in his public movements, and it upheld tracking for a reasonable period based on reasonable suspicion. At a minimum, if GPS tracking were (incorrectly) deemed a search, the tracking in this case was likewise reasonable.

Prompt resolution of this conflict is critically important to law enforcement efforts throughout the United States. The court of appeals’ decision seriously impedes the government’s use of GPS devices at the beginning stages of an investigation when officers are gathering evidence to establish probable cause and provides no guidance on the circumstances under which officers must obtain a warrant before placing a GPS device on a vehicle. Given the potential application of the court of appeals’ “aggregation” theory to other, non-GPS forms of surveillance, this Court’s intervention is also necessary to preserve the government’s ability to collect public information during criminal investigations without fear that the evidence will later be suppressed because the investigation revealed “too much” about a person’s private life. Because the question presented in this case is important, and because the court of appeals’ decision is wrong, this Court should intervene to resolve the conflict.

Perhaps the Court will prefer to let the issue percolate more in the lower courts, but there are quite a few opinions on point already, and the Court very often grants petitions by the government, so it seems to me that there’s a pretty good chance that the Court will agree to hear the case. I hope it does. It’s an interesting and important issue. You can read a little more about the petition and the case here, here, and here. And don’t forget to check the jump to see if you correctly identified the embarrassing mistake in the question presented.

Continue reading →

Category: Search and Seizure, Uncategorized | Tags: gps, GPS tracking, maynard, supreme court

Update on GPS Tracking

Posted on August 31, 2010 by Jeff Welty

About two years ago, I wrote a paper on GPS tracking. It’s available here. There have been a couple of major decisions in the area recently, so this post is a bit of an update to my earlier work.

I wrote in the paper that “[m]ost, but not all” courts have found that when the police use a GPS tracking device to monitor a suspect’s location, they are not conducting a Fourth Amendment search. Courts generally have based this conclusion on United States v. Knotts, 460 U.S. 276 (1983), which held that the police were not conducting a search when they used a radio “beeper” to help them track a vehicle. The Knotts Court said that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” given that those movements are open to the observation of anyone who cares to look. And police investigation that doesn’t intrude on a reasonable expectation of privacy, of course, doesn’t constitute a search.

“Most” courts doesn’t include the D.C. Circuit. A few weeks ago, it handed down United States v. Maynard, in which it distinguished Knotts and ruled that prolonged GPS surveillance does invade the subject’s reasonable expectation of privacy and so is a search for Fourth Amendment purposes. The unanimous opinion was written by Judge Ginsburg, and joined by Judges Tatel and Griffith. (For those keeping track, they were appointed by Presidents Reagan, Clinton, and Bush, respectively). It states:

[U]nlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil [and] the whole of one’s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more — sometimes a great deal more — than does the sum of its parts.

Further explaining the difference between short-term and long-term surveillance, the court said:

The difference is not one of degree but of kind, for no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life . . . . Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.

I found the opinion to be beautifully crafted and a joy to read. Of course, that doesn’t mean that it is legally correct. Indeed, some of the claims made in the opinion strike me as plainly incorrect, such as the court’s assertion that “every court to which the issue has been squarely presented” has found GPS tracking to constitute a Fourth Amendment search. (The quoted language is followed by a labored explanation of why at least half a dozen courts that have ruled the other way have failed to appreciate the arguments endorsed by the D.C. Circuit.) A thoughtful critical review of the opinion by Orin Kerr is here.

Among the courts that have ruled the other way is the Ninth Circuit. In United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), the court followed Knotts, stated that GPS tracking of the defendant revealed only information “the agents could have obtained by following the car,” and held that the tracking therefore did not invade the defendant’s reasonable expectation of privacy and did not constitute a Fourth Amendment search. The opinion is brief, matter-of-fact, and attracted virtually no attention until the defendant sought rehearing en banc.

Although rehearing was denied, five judges dissented from the denial by published opinion, available here. The lead dissent was written by Chief Judge Kozinski, a leading conservative, and joined by, inter alia, Judge Reinhardt, widely viewed as the Ninth Circuit’s most influential liberal. As is typical of Chief Judge Kozinski’s opinions, his dissent from the denial of rehearing in Pineda-Moreno is colorful, pithy, and feisty. It’s not long, and it’s worth reading for lots of reasons — including his dismissal of the “common entranceway” exception to the rule that the curtilage is subject to a reasonable expectation of privacy. But as it pertains to GPS tracking, the core of his argument is that (1) GPS tracking is much more invasive than the use of beepers discussed in Knotts, which merely augmented visual surveillance actually being conducted by the police; (2) the combination of GPS tracking with other technologies in common use by law enforcement, such as cell phone tracking, amounts to a virtual dragnet in dire need of regulation by the courts; and (3) such “creepy and un-American” behavior should be checked by the Fourth Amendment. Citing various examples of police use of surveillance technology, Kozinski writes that “1984 may have come a bit later than predicted, but it’s here at last.”

One thing that Chief Judge Kozinski doesn’t do is lay out his preferred framework for addressing GPS tracking. That is, of course, appropriate for a dissent from a denial of rehearing: his whole point is that the issue merits further consideration. But it is hard to read the opinion without thinking that he would be sympathetic with at least some parts of the reasoning of Maynard. For whatever reason, Chief Judge Kozinski’s opinion has attracted considerable media attention — far more than the original panel opinion, which, it is worth remembering, is the law. Time magazine ran an opinion piece essentially parroting Kozinski’s arguments and many other media outlets have also covered the issue.

Despite the renewed visibility of this issue, there’s still no North Carolina case on point. The basic analysis in my earlier paper remains correct, but the minority view — that GPS tracking is a Fourth Amendment search — seems to be gaining a bit of momentum. In any event, arguments about GPS tracking should be informed by these recent decisions. And of course, with a split of authority among the lower courts beginning to firm up, the Supreme Court may choose to weigh in at some point. Stay tuned.

Category: Search and Seizure, Uncategorized | Tags: fourth amendment, gps, GPS tracking, maynard, pineda-morales

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