By Lisa Judge, Principal Assistant City Attorney, Tucson, Arizona
United States v. Jones, Part II
Editor’s note: Part one of this column, “The Supreme Court Goes Back to the Future in Deciding the Constitutionality of Using GPS Technology,” was published in the June 2012 issue of Police Chief magazine.
n a sampling of decisions from other courts since United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012) was decided, it is apparent that the legal theories discussed in Jones, including Justice Antonin Scalia’s opinion and the concurring opinions by Justices Samuel Alito and Sonia Sotomayor, are shaping the way courts are analyzing these issues. Predictably, the divergent opinions have produced varying results.1 In several factually similar cases, the respective courts employed both the Scalia test (determining whether a “common law trespass” by government resulting in the gathering of evidence occurred); and the “reasonable expectation of privacy” analysis from Katz that was reiterated by Alito. These cases acknowledge that a majority of the justices do not think the trespass test provides an adequate analysis for protection of Fourth Amendment interests where global positioning system (GPS) monitoring is used, so they also analyze whether the defendants had a reasonable expectation of privacy.
In United States v. Luna-Santillanes,2 the U.S. District Court for the Eastern District of Michigan found that the defendants could not establish a property interest sufficient to support the trespass challenge, and, even if they had been able to articulate a reasonable expectation of privacy in the monitoring of a vehicle used to transport drugs, the short duration (one day) of the monitoring rendered any search reasonable.
The Supreme Court of South Dakota went in the opposite direction in State v. Zahn,3 finding that attachment of a GPS device to a vehicle owned by the defendant and the 26-day monitoring of that device was a search that violated the Fourth Amendment under both the trespass and the reasonable expectation of privacy tests.
Even though Jones did not explicitly address the issue, the Zahn court took the extra step of deciding that a warrant was required. It specifically noted that “GPS technology is uniquely intrusive in the wealth of highly detailed information it gathers,” and held “that the attachment and use of a GPS device to monitor an individual’s activities over an extended period of time requires a search warrant. Because the unfettered use of surveillance technology could fundamentally alter the relationship between our government and citizens, we require oversight by a neutral magistrate.”4
The Jones decision also is being used to assess the constitutionality of searches involving other electronic evidence. In United States v. Graham,5 a Maryland District Court considered Justice Alito’s theory of lengthy surveillance constituting a search. In this case, cell site information was obtained over an extended period of time that demonstrated a connection with the locations of robberies the defendant was suspected of committing. Although the government had procured court orders for all cell site information pursuant to the Stored Communications Act, the defendant argued that the lower standard of “specific and articulable facts” for procuring those orders was insufficient to protect his Fourth Amendment rights. He argued essentially that “[w]here intermittent periods of constant cell location surveillance reveal the patterns of a person[’s] movements, that person’s privacy has been severely compromised,” leading to the conclusion that although “surveillance in and of itself does not necessarily implicate Fourth Amendment privacy concerns, but in the aggregate, some amount of cellular location data gathering will eventually run afoul of the Constitution.”6
The Graham court distinguished cell tower information from GPS data insofar as GPS information is more precise in providing a person’s actual location and in real time, as opposed to cell site information that shows an approximate location where a person was at a given date and time. The court members also discussed whether a person has a reasonable expectation of privacy in information conveyed to a third party; they ultimately rejected that notion, citing several cases that involve similar types of information, such as Internet subscriber information,7 pen registers, 8 and bank records.9 Despite concerns about disclosure to third parties expressed by Justice Sotomayor’s opinion in Jones, the Graham court stated that “by voluntarily conveying information to a third party, a person is cognizant of, and consents to the sharing of that information by the third party.”10 This line of reasoning is instructive when trying to extrapolate what a court might do regarding GPS information obtained from a third-party automobile manufacturer, rather than by installation of a device by the government.
The court also rejected Justice Alito’s theory that traditional government surveillance may become a Fourth Amendment search by virtue of how long it is conducted. This line of reasoning—that the aggregate of police action could create a “mosaic” of cumulative information that implicated an expectation of privacy—also was part of the decision in the United States District Court for the District of Columbia’s decisions in the Jones case.11 However, this is a curious result and demonstrates just how unclear the guidance provided by Jones really is, insofar as Justice Sotomayor and Justice Alito agree on this theory that the aggregate of law enforcement action could trigger a Fourth Amendment expectation of privacy. As such,there is effectively a majority of the court willing to entertain this “mosaic” argument.
In United States v. Anderson-Bagshaw, the United States District Court for the Northern District of Ohio ruled that the Jones decision is not relevant to surveillance using an off-site pole camera when they refused to reconsider a previous ruling allowing admission of video evidence from a 24-day surveillance using a pole camera installed on a telephone pole adjacent to the defendant’s property.12 Even considering the mosaic theory discussed in Jones and the 24-hour nature of the lengthy surveillance, this court ruled that the “fixed and limited scope” of a pole camera “would likely not offend the Fourth Amendment.”13
The bottom line is good faith may save pending cases investigated prior to Jones where a search warrant was not obtained if officers were relying on binding precedent in their jurisdictions that use of GPS tracking did not require a warrant.14
Any post-Jones use of GPS technology involving a physical trespass by attaching a device will be viewed as a search under the Fourth Amendment if the evidence is used against a person who had a sufficient property interest in the monitored property. For a search to be constitutional, it must be supported by probable cause and conducted pursuant to a warrant or an exception to the warrant requirement. While the U.S. Supreme Court did not specifically address whether a warrant was required to either attach or monitor a device, a warrant is advisable unless an exigency can be demonstrated. It also is wise to consider whether people being monitored by GPS have reasonable expectations of privacy, even if they do not have a possessory interest in the property or an effect that is the subject of the search. Any monitoring that goes on for an extended period of time may rise to the level of a search, requiring a warrant or an exception to the warrant requirement. ♦
1See for example, United States v. Hanna, 2012 WL 279435 (S.D. Fla., January 30, 2012).
2United States v. Luna-Santillanes, 2012 U.S. Dist. LEXIS 40532 (E.D. Mich. March 26, 2012).
3State v. Zahn, 2012 SD 19, 2012 S.D. LEXIS 19 (March 14, 2012).
5United States v. Graham, 2012 U.S. Dist. LEXIS 26954 (D. Md. March 1, 2012).
7United States v. Bynum, 604 F.3d 161 (4th Cir. 2010).
8Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979).
9United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976).
10United States v. Graham.
11United States v. Jones, 451 F. Supp. 2d 71 (2006).
12United States v. Anderson-Bagshaw, 2012 U.S. Dist. LEXIS 30699 (N.D. Ohio March 8, 2012).
14Luna-Santillanes, 2012 U.S. Dist. LEXIS 40532; United States v. Nwobi, 2012 WL 769746 (C.D. Cal., March 7, 2012); and see also, United States v. Amaya, 2012 U.S. Dist. LEXIS 50151 (N.D. Iowa, April 10, 2012). In a very similar set of circumstances to Jones, in Amaya an Iowa District Court found that, pursuant to the good faith exception set out in Davis v. United States, 131 S. Ct. 2419 (2011), evidence obtained by agents relying on binding 8th Circuit case law authorizing warrantless GPS surveillance was admissible, and retroactive application of Jones would not serve the purpose of deterring police misconduct. That court also noted that the U.S. Supreme Court left open the question of whether a warrant is always required or whether warrantless GPS monitoring may be reasonable if officers have probable cause that the vehicle is involved in illegal activity.
Please cite as:
Lisa Judge, "Implications for Other Technologies as Courts Apply Jones to GPS Cases," Chief’s Counsel, The Police Chief 79 (July 2012): 12–13.