By Karen J. Kruger, Counsel, Maryland Chiefs of Police Association, Baltimore, Maryland; and Board Member at Large, IACP Legal Officers’ Section
ith some increasing frequency, courts must review law enforcement agencies’ use of new technology that enhances legitimate investigations if used properly but also threatens personal privacy if misused. Courts review the use of these tools most often under the principles of the Fourth Amendment and its prohibition against unreasonable search and seizure. Although the text of the Fourth Amendment does not indicate that a warrant is required to make a search or seizure reasonable, 1 the Supreme Court has ruled that there is a presumption that a warrant is required for a search to be reasonable, unless some exception to this rule exists.2
Uses of the Global Positioning System
When new technology becomes available to the law enforcement community, then, courts must consider the nature of the device’s function because “the presumption in favor of requiring a warrant . . . does not come into play unless there is a search or seizure within the meaning of the Fourth Amendment.”3 In a few new cases, courts have examined the use by police of Global Positioning System (GPS) technology as an aid in conducting surveillance, undertaking investigations, and apprehending offenders.
The GPS is a global navigation satellite system (GNSS) developed by the U.S. Department of Defense and managed by the U.S. Air Force. The system, which began operation in 1993, is the only fully functional GNSS in the world, and its official name is NAVSTAR GPS. GPS technology uses a collection of between 24 and 32 Earth-orbiting satellites that transmit precise radio-wave signals, which allow GPS receivers to determine the current location, time, and velocity of a receiver. Use of the system is free, and it has proved to be a useful tool not only for navigation purposes but also for mapmaking, land surveying, commerce, scientific research, and hobbies such as geocaching. Interestingly, GPS technology is also valuable for its precise time reference, used for such applications as the scientific study of earthquakes and as a required time synchronization method for cellular network protocols.4
It is the ability of the system to determine a GPS receiver’s absolute location that serves the law enforcement function of remote surveillance. When acting as a tracking device, the receiver is commonly attached to a vehicle or enclosed in a package. Whether the placement of the receiver is a seizure and whether the receipt of the transmissions constitutes a search are the questions that are posed to courts in motions to suppress evidence obtained with this technology.
Court Rulings on Technological Surveillance
A case from 1983 is of interest in reviewing these issues. In Knotts v. United States, government agents were investigating individuals involved with the manufacture of amphetamines. 5 They secreted into a container of raw materials a radio transmitter that enabled police later to track the route of the vehicle delivering the materials to a secluded cabin in West Virginia. After conducting surveillance for three days, the officers successfully obtained a search warrant for the cabin and discovered a clandestine laboratory.
The suspects moved to suppress the evidence seized by claiming that the surreptitious use of the beeper was a violation of the Fourth Amendment. The Supreme Court ruled that use of the beeper was merely a technological extension of the officers’ ability to conduct visual surveillance of an automobile traveling on the “public streets and highways.” The Fourth Amendment applies only when a person has a reasonable expectation of privacy, and because when one travels “over the public streets he voluntarily convey[s] to anyone who wanted to look the fact that he was traveling . . . in a particular direction, the fact of whatever stops he made, and the fact of his final destination,” there is no reasonable expectation of privacy, and thus there was no constitutional violation.6
In Stone v. State of Maryland, a case in which the Maryland State Police used a GPS device attached to a pickup truck driven by a burglary suspect, the state court relied on Knotts for the proposition that the suspects had no expectation of privacy in their public travels.7 This court recited a quote from Knotts that bears replication: “Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.”8
Knotts clearly established that the mere tracking of a vehicle on public streets is not a search, without considering whether installing a device in a vehicle somehow converts the nonsearch into a search. Some courts of appeal have considered this question, with mixed results.9
Using an analysis similar to that relied on by the Stone court, the recent federal appellate court opinion in United States v. Garcia conclusively determined that attaching a GPS tracking device is not a search within the meaning of the Fourth Amendment.10 In comparing technological surveillance with visual surveillance, the court noted, “[I]f police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite images as in Google Earth, there is no search” (emphasis added).11
The Garcia court made a further important observation that the use of technology like a GPS receiver may require a “tradeoff between security and privacy, and often it favors security,” and that “[t]echnological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive.”12
As technology continues to develop, courts will be called on to decide whether the Fourth Amendment should place restrictions on law enforcement activities and what those restrictions might be, most critically in the area of mass surveillance activities. Current case law indicates that a case-by-case use of a GPS tracking device is neither a seizure nor a search, does not offend the Fourth Amendment, and may be undertaken without first obtaining a warrant. ■
1United States v. Garcia, 474 F.3d 994, 996 (7th Cir. 2007).
2Id.; see also U.S. v. Leon, 468 U.S. 897, 913–14 (1984); Mincey v. Arizona, 437 U.S. 385, 390 (1978).
3Garcia, 474 F.3d at 996. See Kyllo v. United States, 533 U.S. 27, 34 (2001) (stating that directing a thermal-imaging device at a home’s interior is a search under the Fourth Amendment).
4See Charles Meertens, University NAVSTAR Consortium (UNAVCO) Annual Progress Report for Support to the NASA Global Positioning System Global Network and Solid Earth and Natural Hazards Research and Applications Program (Boulder, Colorado: University Corporation for Atmospheric Research, 2002); and Stefano Bregni, Synchronization of Digital Telecommunications Networks (Chichester, United Kingdom: John Wiley and Sons, 2002), 300.
5United States v. Knotts, 460 U.S. 276 (1983).
6Id. at 281–82.
7Stone v. State of Maryland, 178 Md. App. 428 (2008). The officers also used a cellular telephone “ping” tracking device in this case.
8Id. at 448, quoting Knotts, 460 U.S. at 282.
9Compare United States v. McIver, 186 F.3d 1119, 1127 (9th Cir. 1999), and United States v. Michael, 645 F.2d 252, 256 (5th Cir. 1981) (indicating no search), with United States v. Bailey, 628 F.2d 938, 944–45 (6th Cir. 1980), and United States v. Shovea, 580 F. 2d 1382, 1387–88 (10th Cir. 1978) (holding contrary).
10Garcia, 474 F.3d 994. The court also held that attaching the device to a suspect’s car is not a seizure. Id. at 996.
11Id. at 997.
12Id. at 998.