Update on GPS Tracking

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.

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