Criminal defense attorneys, individual rights advocates, judges, and even prosecutors must understand that the government’s use of global positioning system (GPS) surveillance in criminal cases presents potentially complex constitutional issues for the accused, the defense bar, the bench, and society. This article focuses on the recent and divergent federal and state decisions regarding whether the government may constitutionally initiate 24-hour surveillance of anyone, anywhere, without judicial guidance, oversight, or scrutiny.
Search. The court has not yet determined whether installation of a GPS device by the government constitutes a search. Court precedent, however, augurs against lower courts finding a “search” when the government monitors vehicles without a warrant via GPS-enabled devices, given the court has determined that attaching a tracking beeper to the inside of a canister for the specific purpose of tracking a vehicle on public roads is not a search.
Toward a “Mosaic Theory” of Fourth Amendment privacy? Justice Louis Brandeis contemplated in his Olmstead dissent that constitutional provisions such as the Fourth Amendment possess the “capacity of adaptation to a changing world.” Olmstead v. United States, 277 U.S. 438, 472 (1928) (Brandeis, J., dissenting). Recently, Justice Antonin Scalia chimed in on this same issue and scolded his colleagues for their failure to keep pace with innovation and technology.
In People v. Weaver, 909 N.E. 2d 1195 (N.Y. 2009), a New York State Police Department investigator crawled under Weaver’s van, parked on a street outside his home, to attach a GPS-enabled device. The device remained attached for 65 days, monitoring and calculating the van’s every movement, location, travel time, and trip length, around-the-clock. Ultimately, the government prosecuted Weaver and another individual; both were charged with two burglaries that occurred in Latham, New York, on Christmas Eve. The trial court denied Weaver’s motion to suppress the GPS evidence. The jury found Weaver guilty of third-degree burglary and attempted second-degree grand larceny. The state prevailed at the intermediate appellate court level. The New York Court of Appeals deemed GPS satellite surveillance “vastly different” and “exponentially more sophisticated and powerful” than a tracking beeper, and held that it “facilitate[s] a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period of time.” Notwithstanding the lesser expectation of privacy one has while in public and in the exterior of one’s vehicle, New York’s high court determined that the defendant had and retained a “residual” privacy expectation in his movements 24 hours a day, which included his public movements. This “residual” interest was sufficient “to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures.” However, as the Supreme Court (nor any other federal court at the time) had not addressed the matter, the New York Court of Appeals declined to decide the Fourth Amendment question, finding for Weaver that warrantless installation and use of a GPS device to monitor an individual’s whereabouts constitutes an unreasonable illegal search in violation the New York State Constitution. The state court’s analysis has come to be known as the “Mosaic Theory of GPS Surveillance.”
Shortly after Weaver, the U.S. Court of Appeals for the District of Columbia Circuit officially split the federal circuits when it employed the Mosaic Theory in United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010), en banc reh’g denied, 625 F.3d 766 (D.C. Cir. 2010), cert. denied, __ U.S. __, 131 S. Ct. 671 (2010). There, a joint task force investigated Jones and Maynard, suspecting them of narcotics-related crimes. The government’s investigation included placement of a GPS-enabled surveillance device on Jones’ vehicle. Though the task force had received a court order authorizing the device’s installation, they failed to install it within the court-authorized time frame. Instead, they attached it in the wrong jurisdiction after the court order had expired. The task force monitored Jones for one month. Both men were eventually found guilty of conspiracy with intent to distribute and to possess with intent to distribute cocaine and cocaine base.
On appeal, the D.C. Circuit determined that “prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do.” The Maynard majority determined further that “the whole of a person’s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.” Because the “whole reveals far more than the individual movements it comprises,” it is reasonable for an individual to expect “each of her movements to remain disconnected and anonymous,” to remain—despite public presence—generally anonymous as a privacy interest that society is prepared to accept as reasonable.
The D.C. Circuit applied to the facts before it a newly modernized version of Katz v. United States, 389 U.S. 351 (1967). Under prong one of Katz, two considerations compelled the court to find that the totality of Jones’ movements over the course of the government’s month-long surveillance was not exposed to the public: (1) Unlike a single journey, the “whole of one’s movements over the course of a month is not actually exposed to the public” and (2) the whole of one’s movements over the course of one month is not constructively exposed, even though each individual movement is. The court announced that when it comes to privacy, “the whole may be more revealing than the part.” Here, police used their GPS device not to track Jones’ short, separate, individual trips or movements from one place to another; instead, they tracked his movements “24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place to place.”
Regarding Katz’s second prong, the D.C. Circuit looked at state statutes in California, Hawaii, Oklahoma, and South Carolina that declared electronic tracking without that person’s knowledge a violation of an individual’s reasonable expectation of privacy, thereby requiring governments to obtain a warrant. This led to “only one conclusion: society recognizes the accused’s expectation of privacy in his movements over the course of a month as reasonable.” The court held that the government’s month-long, around-the-clock warrantless GPS surveillance unconstitutionally defeated Jones’ reasonable expectation of privacy.
Strategies for going forward. Maynard will affect the analysis of prolonged warrantless GPS surveillance, as it recently reached the U.S. Supreme Court, cert. granted sub nom. United States v. Antoine Jones, 131 S. Ct. 3064 (2011) (No. 10-1259). Until the Court renders its decision, parties and courts should employ their own “belt and suspenders” analysis of how GPS surveillance data should be treated, perhaps citing the Mosaic Theory while, simultaneously, employing more “traditional” Fourth Amendment analyses.
Do not forget to look to state law, even when assessing Fourth Amendment privacy interests and protections. Like federal courts, state courts are divided over whether continuous GPS device monitoring constitutes a “search” under their respective constitutions. And be aware that even if a jurisdiction codifies a reasonable expectation of privacy in the information provided by a GPS device, it may not cover the particular device or the facts of a particular case.
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- This article is an abridged and edited version of one that originally appeared on page 34 of Criminal Justice, Summer 2011 (26:2).
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