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Legal Questions Answered:

 

Question Title:
Court order or search warrant requirements for GPS tracking on vehicles for on-going surveillance

E-Newsletter Edition: October 29, 2008

         Seed article to Newvine        

Response Provided By:
Brian S. Batterton, J.D.

Always note that state law may be more restrictive on police power than the U.S. Constitution.

QUESTION:

Is a court order or search warrant required prior to placing a GPS surveillance device on a vehicle for an on-going investigation? Are there any court cases on this?

_____

ANSWER:

The short answer is “no, unless you intrude into protected ‘curtilage’ for the purpose of installing the device.”

The United States Supreme Court has addressed the issue of beeper tracking devices in two cases.  In the United States v. Knottsi, police put a tracking beeper into a chloroform chemical container that was sold to Knotts.  They then tracked the container after it was placed into a vehicle.  Using the beeper and visual surveillance, the police ultimately obtained a search warrant for the property that was the destination of the chloroform.  The Supreme Court held that monitoring the beeper signals did not invade Knotts reasonable expectation of privacy; therefore, there was no “search” or “seizure” within contemplation of the Fourth Amendment.  This was attributed to the fact a person has no expectation of privacy driving on public streets, thus following a vehicle on the public streets to a particular destination did not implicate the Fourth Amendment.  The device merely augmented the officer’s ability to maintain surveillance of a vehicle and container as it traveled in public.  The Supreme Court reached the same conclusion in the United States v. Karoii, which also involved the monitoring of beeper tracking device in a container.

However, neither of these cases involved planting the device on a suspect’s automobile so we will look to the Federal Circuit Courts of Appeal for guidance.  In the United States v. Garciaiii, the Seventh Circuit Court of Appeals addressed the issue of whether placing a GPS tracking device on a vehicle and monitoring the device constituted a search within the meaning of the Fourth Amendment.  In this case, the police had information that provided them with reasonable suspicion that Garcia was involved in manufacturing methamphetamine.  The police located Garcia’s vehicle when it was parked on a public street near where Garcia was staying.  A GPS with a memory tracking unit was placed under the rear bumper.  The device was pocket sized and battery operated and it contained memory that allowed the officers to retrieve the device and ascertain where the suspect had driven over a set time period.  The device led to evidence that ultimately assisted the police in obtaining a search warrant for a particular location and arresting Garcia. 

Garcia contended that the police needed a warrant to place the device on his car.  The government contended that the installation of the device did not implicate the Fourth Amendment.

To determine if a warrant was needed, the court had to determine whether the installation of the device constituted either a “seizure” or a “search” of Garcia’s automobile.  First, the court found that the device did not “seize” the car in any way.  The GPS device did not draw power from the car battery, did not take up any room that might otherwise have been occupied by passengers or packages, and did not alter the appearance or driving qualities of the car in any manner.  Thus, there was no “seizure.

The court then set out to determine whether the installation of the device constituted a “search.”  It was first noted that the Supreme Court, in Knotts, previously held that using a beeper tracking device to follow a vehicle or package in public did not constitute a search.  Ultimately, the court found that the GPS tracking device did no more that the police could have done with physical surveillance or cameras.  They noted that physical surveillance and cameras do not touch the suspect’s car while a GPS device does.  However, the court stated that there is no practical distinction between physical surveillance and electronic surveillance; therefore, the installation of the device, while the car was located on a public street, did not constitute a search. 

However, what if the vehicle is located in the suspect’s driveway when the police install the device?  This is precisely what the Ninth Circuit Court of Appeals faced in the United States v. McIver.iv  In McIver, Special Agents for the U.S. Forest Service were conducting an investigation regarding marijuana being grown in a National Forest.  McIver was one of the suspects.  At 3:30a.m., an agent went to McIver’s house and placed a GPS tracking device and a beeper on the undercarriage of his vehicle.  The vehicle was parked on McIver’s driveway outside of his garage and it was visible to passersby on the street. 

McIver was ultimately arrested as a result of the investigation.  Two of the issues before the Court of Appeals were (1) whether a warrant was required to enter McIver’s driveway to place the tracking devices and (2) whether the placement of the tracking devices on the undercarriage of the vehicle constituted a search and seizure requiring a warrant. 

As to the first issue, the court noted that the area of the driveway where McIver’s vehicle was parked was not considered within the curtilage where McIver would possess a reasonable expectation of privacy.  This was because the area was fully exposed to view to persons passing by and the area was not enclosed by a fence or gate.  Therefore, since the area was visible to the public and McIver made no attempt to maintain a privacy interest in that area, the location of the vehicle was not protected curtilage within the meaning of the Fourth Amendment.  While McIver accepted this, he contended that the act of entering the driveway to install the devices constituted a trespass.  To this end, the court reasoned that trespass law is irrelevant when the suspect does not possess a reasonable expectation of privacy within the Fourth Amendment in the area trespassed.v   

To the second issue, the court held that placement of the tracking devices was neither a search nor a seizure.  First, a search occurs when the government intrudes into an area where a person possesses a reasonable expectation of privacy.  The court, citing a Tenth Circuit case, found that the undercarriage of an automobile is considered the exterior of the automobile and, as such, there is no reasonable expectation of privacy.vi  It was also noted that, during the installation, the agents did not pry into any compartment of the vehicle.  Thus, there was no “search” within the meaning of the Fourth Amendment.

As to whether the devices constituted a “seizure” of McIver’s automobile, the court considered the fact that a seizure takes place when "there is some meaningful interference with an individual's possessory interests in that property."vii  The court noted that the installed devices did not deprive McIver of dominion and control of his vehicle and did not damage any electronic components of his vehicle.  Therefore, there was no seizure within the meaning of the Fourth Amendment.

In conclusion, in light of the above case law, it is likely that a warrant is not needed to install and monitor a battery operated GPS device on the exterior (undercarriage) of an automobile that, at the time of installation, is located in an area where the suspect does not possess a reasonable expectation of privacy.  Additionally, a warrant would not be required to monitor the device while the automobile is being operated on public roadways or locations where the operator does not possess a reasonable expectation of privacy.    

CITATIONS:

i 480 U.S. 276 (1983)

ii 468 U.S. 705 (1984)

iii 474 F.3d 994 (7th Cir. 2007)

iv 186 F.3d 1119 (9th Cir. 1999)

v Oliver v. United States, 466 U.S. 170 (1984)

vi United States v. Rascon-Ortiz, 944 F.2d. 749 (10th Cir. 1993)

vii United States v. Jacobson, 466 U.S. 109, 113 (1984)

 

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