Challenging the (Un)Constitutionality
of Governmental GPS Surveillance
BY LENESE C. HERBERT
G
lobal positioning system (GPS) technology
has evolved beyond its origins and is now considered as essential a modern resource as cell
phones (in fact, most “smart” phones are preloaded with
GPS-enabled technology). Relied upon by millions for
matters of industry, family, economy, community, and
safety, today anyone with the means to obtain and operate a GPS device is instantly plugged into the most sophisticated navigation system in known history.
Police departments across the country are also relying
upon GPS devices to initiate or further criminal investigations. GPS-enabled surveillance allows law enforcement
agents to collect continuous, detailed, and real-time location, speed, direction, and duration information. The government can collect this information for hours, days, weeks,
months, and even years, thus making it easier to amass extraordinary amounts of detailed information without incurring the commensurate costs in dedicated employee resources, salary, benefits, and overtime pay. (See, e.g., United
States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010) (noting
that the GPS-enabled device “merely allowed the police to
reduce the cost of lawful surveillance”).) With increasing
frequency, federal, state, and municipal law enforcement
agencies are attaching GPS devices to vehicles—often without a judicially-issued warrant—to obtain evidence that
will support successful criminal prosecutions.
Challenges to the government’s use of and reliance
upon GPS-enabled surveillance evidence are increasing
as well, with challengers arguing that the government’s
warrantless installation of GPS devices on motorists’ vehicles (and the resultant monitoring of motorists’ movements) violates individual privacy rights under federal
and state law. Motions to suppress GPS-enabled surveillance data in criminal prosecutions unanimously invoke
the individual’s first line of defense in privacy protection:
the US Constitution’s Fourth Amendment prohibition
against unreasonable governmental searches. A number
of these motions also invoke the Fourth Amendment’s
prohibition against unreasonable governmental seizures,
as well as state law protections.
The US Supreme Court has yet to rule upon the constitutionality of warrantless governmental placement,
tracking, and 24-hour use of GPS-enabled devices and
surveillance data in criminal prosecutions. The closest
the court has recently come occurred in United States v.
Knotts, 460 U.S. 276 (1983) (finding no Fourth Amendment search when government agents monitored a tracking beeper while the suspect traveled over public roads, as
the tracked car, its occupants, contents, and movements
were in “plain view”), United States v. Karo, 468 U.S. 705
(1984) (holding the government’s monitoring of a tracking beeper inside a metal can of ether while within a residence constituted a Fourth Amendment search, despite
lack of physical intrusion into the home), and Kyllo v.
United States, 533 U.S. 27 (2001) (finding government’s
use of a thermal imager upon defendant’s home was a
Fourth Amendment search, as the technology accessed
information otherwise unavailable without physical intrusion). None of these, however, squarely addresses the
multiplicity of facts and potential privacy interests that
warrantless GPS-enabled surveillance cases spawn.
Criminal defense attorneys, individual rights advocates,
judges, and even prosecutors must understand that the
government’s use of GPS surveillance in criminal cases
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presents potentially complex constitutional issues for the
accused, the defense bar, the bench, and society. This article will focus 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.
The Technology
GPS, developed by the US Department of Defense, is
the world’s first man-made satellite navigation system.
Named the NAVSTARGPS (Navigation Signal Timing
and Ranging Global Positioning System), GPS originated
as a military navigation system. Today, GPS includes a constellation of nearly 30 solar-powered satellites that orbit the
planet twice a day, transmitting high-frequency, low-power
“line of sight” radio signals to different users on different
frequencies. The satellites’ orbit patterns are calculated and
choreographed so that, worldwide, a GPS receiver on the
ground is always “visible,” i.e., receiving signals simultaneously from no fewer than four satellites. The multiple and
simultaneous satellite “readings” allow “location” of the
GPS device via trilateration, which identifies location in
three-dimensional space, thanks to the satellites’ readings
intersection point on the surface of the planet.
When we refer to GPS, we often are actually speaking
of one of its innumerable receivers, contained in either a
portable or an installed device we rely upon for location
and direction information, as well as speed. Better GPS
devices have multiple receivers, which means they can,
simultaneously, receive signals from several satellites.
Referring to GPS as a “tracking system” also mischaracterizes the system and minimizes its capacity. GPS receivers are passive devices that merely read information
transmitted around the clock by the satellites. However,
once a GPS receiver is outfitted with a transmitter or
recording device, third parties interested in determining
the whereabouts of the GPS device may remotely and
unblinkingly surveil its location continually virtually
anywhere on the globe. Quantitatively and qualitatively,
then, GPS-enabled surveillance is far cheaper and vastly
superior to visual surveillance, as no one human or organization of human observers is currently capable of such
comprehensive, continuous, and accurate information
regarding location and movement monitoring.
The Methodology
GPS-enabled devices, attached to vehicles by government agents, allow police to monitor and record vehicle
LENESE C. HERBERT is a law professor at Albany Law School in
New York and coauthor of the casebook Constitutional Criminal
Procedure (4th ed. Foundation Press).
locations, almost always without driver or occupant
knowledge. Generally, officers attach one or more small,
battery-operated GPS-enabled devices—no larger than a
deck of cards—to a vehicle’s undercarriage or bumper by
means of noninvasive magnetized strips or an adhesive.
GPS-enabled devices also may be attached to the engine and its components, which allow these devices to
draw power from the vehicle’s electrical system. Such
devices can run indefinitely without government maintenance. (See, e.g., Commonwealth v. Connolly, 454 Mass.
808, 812 (Ma. 2009) (noting GPS-enabled surveillance
device attached to the engine of the defendant’s minivan
and drew power from the vehicle’s electrical system).)
Most devices, however, require maintenance and replacement of the power source, especially when surveillance is
lengthy. (See, e.g., Marquez, 605 F.3d at 607 (changing
batteries seven times after the initial device attachment
to the vehicle); United States v. Pineda-Moreno, 591
F.3d 1212, 1213 (9th Cir. 2010) (attaching several mobile tracking and one GPS-enabled surveillance devices
to the defendant’s Jeep and replacing the devices seven
times, reh’g denied, 617 F.3d 1120 (2010).)
Once the GPS-enabled surveillance device is attached
to the vehicle of interest, officers simply sit back and let
the data—time, date, speed, direction, duration, and location—amass. At some point, the data is analyzed, organized, and presented as evidence upon which to pursue
criminal prosecution of one or more suspects. The data
may be stored indefinitely; new information—based on
the stored data and a variety of governmental needs—
may be generated at any time and per any governmentally-requested calculus/formula/permutation/coordinates.
Because some law enforcement agencies remain wary
of the ability of GPS-enabled surveillance to withstand
constitutional challenges, these agencies “attach and
dispatch,” i.e., rely upon the constitutionally-sanctioned
low- or no-technology tactic of “plain view observation”
along with GPS-enabled surveillance. (See Coolidge v.
New Hampshire, 403 U.S. 443, 465–68 (1971). ) “Attach and Dispatch” departments place GPS-enabled
devices on suspected vehicles, establish locations via
GPS-enabled monitoring, and send eyewitnesses to
those locations for real-time, human eye observation.
(See, e.g., United States v. Hernandez, 2009 U.S. Dist.
LEXIS 86309, *10–11 (N.D. Tex. 2009); State v. Johnson, 190 Ohio App. 3d 750, 754 (12th App. Dist. Butler
Co. 2010).) Some departments go further, mounting automatic cameras atop or alongside public utility poles to
photograph GPS-surveilled vehicles. (See Marquez, 605
F.3d at 607.) The rationale for such “belt and suspenders” tactics in criminal investigations is simple: These
departments (and the government’s prosecutors) reason
that even if the thoroughly modern and breathtakingly
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comprehensive GPS-enabled surveillance data is suppressed, old-fashioned, plain-view observations will defeat reasonable expectation of privacy claims in court.
“Traditional” Fourth Amendment Analysis
The Fourth Amendment provides that “the right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched and the
persons or things to be seized.” (U.S. Const., amend. IV.)
The Supreme Court has interpreted the Fourth Amendment to require governments to obtain judicially-issued
warrants based upon probable cause and particularity
prior to searching and seizing. This protection of individuals’ rights also extends to the states via the Fourteenth Amendment. (See Dunaway v. New York, 442
U.S. 200, 207 (1979) (citation omitted).)
what has come to be known as the two-pronged “Katz
Test” to determine whether a defendant has a “reasonable expectation of privacy:” (1) whether the individual
“exhibited an actual (subjective) expectation of privacy”
and (2) whether that expectation is “one that society is
prepared to recognize as reasonable.” (Katz, 389 U.S. at
361 (Harlan, J., concurring).) Searches that occur under
the authority of the Fourth Amendment but without a
judge- or magistrate-issued warrant are treated by the
court as per se unreasonable under the Fourth Amendment, subject only to “a few specifically established and
well-delineated exceptions.” (Id. at 357.)
Does the Accused Have Standing?
Standing allows aggrieved individuals to challenge the
government’s actions. Fourth Amendment standing is
substantive; an individual has standing when one or more
Fourth Amendment interests have been infringed upon.
The individual who seeks to suppress introduction of the
Once the GPS-enabled surveillance device is attached
to the vehicle of interest, officers simply sit back and
let the data amass.
Currently, Fourth Amendment challenges are governed by the “reasonable expectation of privacy” test
announced in Katz v. United States, 389 U.S. 351 (1967).
There, without a warrant, government agents wiretapped
and recorded the defendant while he spoke on a telephone
in a public phone booth. The court determined that the
wiretap “violated the privacy upon which the defendant
justifiably relied” and thus constituted an unreasonable
search and seizure. (Id. at 353.) Prior to Katz, governmental intrusions were unlikely to be deemed unreasonable
unless they violated a property law-based interest—for example, trespass. Since Katz, the court has provided constitutional protection for those who have standing to claim
their legitimate expectation of privacy has been violated
by the government, irrespective of property law interests.
Though the Fourth Amendment does not provide or
protect a “general constitutional ‘right to privacy,’” it
does protect what a person “seeks to preserve as private,
even in an area accessible to the public.” (Id. at 351.)
Per Katz, the Fourth Amendment “protects people, not
places. What a person knowingly exposes to the public,
even in his own home or office, is not a subject of Fourth
Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public,
may be constitutionally protected.” (Id. at 351–52.)
In his Katz concurrence, Justice Harlan articulated
government’s evidence must show that he or she had a reasonable expectation of privacy in the area(s) searched or
the item(s) seized. (See Rakas v. Illinois, 439 U.S. 128, 143
n.12 (1978).) In order to invoke Fourth Amendment standing, there is no requirement that one act in complete and
total secrecy. Remember: Katz received Fourth Amendment protection and he made his calls from a highly visible, glass-encased, public telephone booth. Thus, persons
alleging unconstitutional governmental conduct under
the Fourth Amendment must establish—per Katz—that
they have a legitimate expectation of privacy, i.e., demonstrating a subjective manifestation of an expectation
of privacy in the area searched that society is prepared to
recognize or accept as reasonable.
Keep in mind that GPS surveillance data is not always used against the person who has standing to object to the government’s conduct. (See, e.g., Marquez,
605 F.3d at 609 (finding defendant lacked standing to
challenge GPS device installation, as he “neither owned
nor drove” the GPS-tracked vehicle and “was only an
occasional passenger therein”); United States v. Sparks,
750 F. Supp. 2d 384, 387 (D. Ma. 2010) (opining that a
temporary passenger’s motion to suppress GPS evidence
in the defendant’s vehicle “stands in a significantly worse
position . . . as a challenger to the legality of the GPS
device”).) Property ownership or possession is a factor
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to be considered in determining whether an individual’s
Fourth Amendment rights have been violated; however,
it is neither the beginning nor the end of the standing
analysis under the Fourth Amendment. (See Rakas, 439
U.S. at 143, n.12.) The court has made clear: “One whose
Fourth Amendment rights are violated may successfully
suppress evidence obtained in the course of an illegal
search and seizure.” (Id. at 137–38.) Accordingly, possession and even ownership of a vehicle that is the subject of governmental surveillance via one or more GPSenabled devices may indicate—but does not substitute
for—a factual finding that the accused had a legitimate
expectation of privacy in the area searched.
Also, be aware that the government’s GPS information may originate elsewhere. Many newer vehicles are
manufactured with GPS-enabled devices and surveillance systems. Additionally, owner/operators increasingly install post-market surveillance systems such as
OnStar or LoJack and purchase subscriptions to their
GPS-enabled surveillance services. Do such facts have
implications for Fourth Amendment standing, i.e., what
if the government does not install its own GPS-enabled
surveillance device, but, instead, introduces information
obtained from manufacturer- or owner-installed surveillance systems in the criminal case against the defendant?
Even when it comes to the Fourth Amendment, remember—caveat emptor. The court’s Third Party/Assumption of the Risk Doctrine provides no constitutional protection for information conveyed to a third
party, as one assumes the risk that the third party might
disclose that information to others, including the government. (See, Smith v. Maryland, 442 U.S. 735, 744
(1979) (finding no reasonable expectation or Fourth
Amendment protection of privacy in telephone numbers
dialed, as petitioner “voluntarily conveyed numerical information to the telephone company and ‘exposed’ that
information to its equipment in the ordinary course of
business. In so doing, petitioner assumed the risk that the
company would reveal to police the numbers he dialed”);
United States v. Miller, 425 U.S. 435, 443 (1976) (holding
no Fourth Amendment privacy interest in bank records,
irrespective of bank’s contractual and fiduciary obligations of confidentiality; records deemed “business records
of the bank”).) This doctrine has come under increasing
criticism, given the extent to which we, in this “Age of the
Internet” and other third-party service providers, routinely must disclose private information. Nevertheless, current
Fourth Amendment precedent holds more often than not
that personal disclosure begets constitutional exposure,
i.e., those of us who share personal information—even for
personal services—remain as constitutionally unprotected as those who might have thrown the same information
in the garbage. (See California v. Greenwood, 486 U.S. 35,
40–41 (1988) (concluding that respondents exposed their
garbage to the public sufficiently to defeat their claim to
Fourth Amendment protection).)
What if the tracked motorists did not personally
subscribe to the third-party GPS surveillance service?
Constitutionally, motorists may still find themselves in
the same position as those who do. In United States v.
Dantzler, 2010 U.S. Dist. LEXIS 68753 (W.D. La. 2010)
at *9–10, defendant had no reasonable expectation of
privacy in the movement of a rented vehicle on public
roads, especially considering that officers had not installed the device or system, but simply accessed information it transmitted to OnStar: “[e]ven when analyzed
from the perspective of the Fourth Amendment, however, defendant’s challenge proves unavailing because
the receipt of satellite tracking information from a thirdparty monitoring service subscribed to by the vehicle
owner does not constitute a ‘search’ or ‘seizure’ under
the Fourth Amendment; therefore, defendant does not
enjoy standing to contest.” Even if a monitored motorist did not know that the purchased, rented, or borrowed
vehicle was subscribed to a GPS-enabled surveillance service, courts may, nevertheless, find no legitimate expectation of privacy infringed, particularly if the evidence fails
to indicate that the motorist, at a minimum, attempted to
satisfy Katz’s first prong by, e.g., rejecting the system, refusing monitoring while driving, or rebuking the portions
of the contractual agreement. (See id. at *11–12 (“there is
no evidence that Dantzler did not know that the . . . Tahoe
was installed with the OnStar system,” nor was there evidence that Dantzler’s rental agreement “precluded monitoring of the vehicle’s travels via GPS or disclosure of
real-time monitoring data to third parties, including law
enforcement. Without such evidence, defendant has not
met his Fourth Amendment burden”).)
Is There a Governmental Search or Seizure?
The court has held that the Fourth Amendment protects two kinds of individual interests: “searches” and
“seizures.” A “search” occurs “when an expectation of
privacy that society is prepared to consider reasonable is
infringed.” A “seizure” of property occurs “when there
is some meaningful interference with an individual’s
possessory interests in that property.” (United States v.
Jacobsen, 466 U.S. 109, 113 (1984).) If neither has occurred, the Fourth Amendment does not apply. Key,
then, is to determine whether a search, seizure, or perhaps both, has occurred.
Search. The court has not yet determined whether
installation of a GPS device by the government constitutes a search under the Fourth Amendment, (See, e.g.,
People v. Weaver, 909 N.E. 2d 1195 (N.Y. 2009).) Court
precedent, however, augurs against lower courts finding a
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“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, Knotts, 460 U.S. at 281–83.
Manifestation of a Subjective Expectation of Privacy.
The court treats vehicles as Fourth Amendment “effects” and recognizes there is a legitimate expectation of
privacy in a vehicle one owns or legitimately possesses.
(See Coolidge, 403 U.S. at 461 (“The word ‘automobile’
is not a talisman in whose presence the Fourth Amendment fades away and disappears”); United States v. Ortiz, 422 U.S. 891, 896 (1975) (“A search even of an automobile, is a substantial invasion of privacy”); Arizona v.
Gant, __ U.S. __, 129 S. Ct. 1710, 1720 (2009) (finding
the expectation of privacy in one’s vehicle “important
and deserving of constitutional protection”).)
However, despite the recognized legitimacy of a vehicular privacy interest, it is also deemed a “lesser expectation,” given a vehicle’s mobility, transparency, and
highly-regulated, inspected reality. Not only is the expectation of privacy minimized, whatever is protected
by the Fourth Amendment is within the vehicle’s interior
compartments, not the vehicle’s exterior or undercarriage. Governmental conduct that occurs in the unprotected realm does not implicate the Fourth Amendment
and, as such, reasonableness is not required. Accordingly, there is no reasonable expectation of privacy in the
publicly visible exterior of a vehicle, New York v. Class,
475 U.S. 106, 114 (1986), and there is no legitimate privacy interest in the movement of a vehicle traveling on
public roadways, Knotts, 460 U.S. at 281–83. (See, also,
e.g., Marquez, 605 F.3d at 609 (even if defendant had
standing, which he did not, per Knotts, GPS-enabled
surveillance via noninvasive device placed on the car’s
exterior did not invade a legitimate expectation of privacy); United States v. Burton, 698 F. Supp. 2d 1303 (N.D.
Fl. 2010) (denying defendant’s motion to suppress; no
legitimate expectation of privacy in “the movements of
his automobile on public roads”).)
The court’s conclusion is the same even when the
driver of a GPS-surveilled vehicle actually manifests a
subjective expectation of privacy in the vehicle’s exterior
or public travels. In Knotts, 460 U.S. at 278, the court
determined that though evasive driving may satisfy the
first prong of the Katz inquiry, the expectation was not
one society would recognize as reasonable. Lower federal courts have followed suit, extending in similar fashion
the Knotts and Karo beeper decisions to GPS-enabled
devices. (See United States v. Williams, 650 F. Supp. 2d
633, 668 (W.D. Ky. 2009); United States v. Moran, 349
F. Supp. 2d 425, 467 (N.D.N.Y. 2005); United States v.
Coombs, 2009 U.S. Dist. LEXIS 105547 *10 (D. Ariz.
2009).) States similarly regard such challenges and deny
defendants’ motions to suppress, given the disputed governmental conduct did not infringe upon a protected
interest. (See, e.g., Stone v. State, 178 Md. App. 428,
446–50 (2008); State v. Sveum, 319 Wis. 2d 498, 507–08
(Wis. Ct. App. 2009), aff’d, 328 Wis. 2d 369 (Wis. 2010),
cert. denied, 131 S. Ct. 803 (2010).)
Is Society Prepared? The Objective Reasonableness
Prong. Parties should remember that traditional notions
of protected interests and areas remain relevant in Fourth
Amendment law. Recall that in Karo, 468 U.S. at 713, the
US Drug Enforcement Agency initially used the beeper
technology of Knotts properly but went constitutionally
astray when they tracked beyond the plain-view exposure
of public travel into the suspects’ private residence, where
there is a heightened (versus lesser) expectation of privacy.
Monitoring the beeper inside versus outside the residence
was a search and because it occurred without a warrant,
violated the Fourth Amendment. (Id. at 719–21.)
Here, as in real estate, location may be determinative.
So, if police enter land, a yard, driveway, parking space,
carport, or enclosed garage to attach the GPS device, the
government should prepare its response to a suppression
motion, given law enforcement’s warrantless presence
upon or within curtilage. Such facts, properly developed by defense counsel or refuted by the government,
will assist the court’s determination of the legitimacy
and reasonableness of the defendant’s Fourth Amendment interest(s), whether police sufficiently violated the
interest(s), and if exclusion of the evidence is warranted.
(See Williams, 650 F. Supp. 2d at 668 (no search when
GPS was installed on vehicle’s exterior and tracked only
on public roads, but noting that outcome might have
been “entirely different” if GPS device had been either
installed or monitored while vehicle was on private
property); United States v. Jones, 451 F. Supp. 2d 71, 88
(D.D.C. 2006) (holding GPS surveillance while vehicle
traveled public roads is not a search; however, monitoring while it is parked in a garage constituted a search);
Moran, 349 F. Supp. 2d at 467 (holding no reasonable expectation of privacy in vehicle’s exterior on public roads,
where there is a diminished expectation of privacy).)
However, depending on the court, location may also
be rendered insignificant or irrelevant. Even when officers unquestionably invade a protected area, such as a
home’s curtilage, and traditional notions of protected areas remain relevant under the Fourth Amendment, some
federal circuit courts of appeal have recently refused to
extend full Fourth Amendment protection to defendants
who did not take “additional steps” to exclude intruders
from their realty or vehicle. In United States v. PinedaMoreno, 591 F.3d 1212 (9th Cir. 2010), the Ninth Circuit
reasoned that despite the government’s concession that
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its agents entered the defendant’s driveway—part of his
home’s curtilage, traditionally a protected area under the
Fourth Amendment, see Hester v. Oliver, 466 U.S. 170,
180 (1984)—to attach the GPS device to defendant’s
Jeep, Pineda-Moreno had no reasonable expectation of
privacy. The Ninth Circuit declined to reach the question of whether, in fact, the police invaded (or the Jeep
was parked within) a protected area. Instead, the Ninth
Circuit determined that even if it was within an area
protected by the Fourth Amendment, Pineda-Moreno’s
driveway was “only a semiprivate area:”
[T]he driveway had no gate, no ‘No Trespassing’
signs, and no features to prevent someone standing
in the street from seeing the entire driveway. . . . If a
neighborhood child had walked up Pineda-Moreno’s
driveway and crawled under his Jeep to retrieve a lost
ball or runaway cat, Pineda-Moreno would have no
grounds to complain. Thus, because Pineda-Moreno
did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was
located within the curtilage of his home.
(Id. at 1215 (citation omitted).)
Similarly, in Burton, 698 F. Supp. 2d at 1306, the government offered photographs to bolster officer testimony that
the defendant’s parked Chevy Avalanche took up “most of
the driveway” and allowed “little distance between the vehicle and the public sidewalk and street,” which convinced
the district court that the officer was able to attach the GPS
device “from a public sidewalk.” (Id. at 1308.)
At the state level, the Virginia Court of Appeals similarly ruled in Foltz v. Commonwealth, 698 S.E. 2d 281
(Va. Ct. App. 2010), dismissing the defendant’s Fourth
Amendment claim because the defendant had no reasonable expectation of privacy while traveling on public
roads in his employer’s van. The state court also cited
the defendant’s failure under Katz’s first prong to subjectively manifest an expectation of privacy in the van’s
bumper, where the government attached the GPS device;
in fact, the court’s analysis bordered on blaming the
defendant for “failing” to prevent others from inspecting the bumper of the van he drove, parking on public
versus private property. That “the police did not need
to remove a lock, latch, or cover to reach into the bumper and attach the GPS device” were fatal to his search
claim. (Id. at 286–87.) In rejecting the “seizure” allegations, the court noted that the device installation did not
meaningfully interfere with the defendant’s possessory
interest, particularly since he did not own the van, but
merely used it for work. (Id. at 287–88.) (The court did
not decide if the outcome would change if the defendant
owned, versus used, the employer’s van. (See id. at 288.)
Do not presume, then, that if police intrude upon
protected areas to install the GPS-enabled device that
the government’s evidence will be suppressed. Instead,
evaluate the level or degree of governmental intrusiveness in the assessment of Katz’s second prong. Depending on the court, the evaluation of what otherwise would
be considered significant or determinative, e.g., location, may ultimately be rendered irrelevant. (See United
States v. McIver, 186 F.3d 1119, 1126–27 (9th Cir. 1999)
(no search when the police placed their GPS device on
a vehicle’s exterior while it sat in the suspect’s driveway,
but outside his home’s curtilage); Sparks, 750 F. Supp.
2d at 388–90 (excluding defendant’s parking spot from
the curtilage of his rented apartment,” and characterizing it as a “common area”—despite the spot’s location
on a private street and lot owned by Sparks’s landlord;
the trespass to attach the GPS device was “a trespass
against the owner,” not the defendant: “[u]nfortunately
for Sparks, notions of property law are only marginally
relevant to this Court’s Fourth Amendment analysis”).)
Seizure Versus Search: Does It Matter?
That depends. Conventional wisdom, rooted in Supreme
Court precedent, indicates that distinguishing a governmental search from a seizure is “practically irrelevant,” as
the constitutional issue is not classification but intrusion.
Accordingly, what matters is only whether the governmental conduct violated a legitimate expectation of privacy. (See United States v. Bailey, 628 F.2d 938, 940 (6th Cir.
1980) (finding distinction “irrelevant,” given “[w]hat matters is whether it violates an individual’s legitimate expectation of privacy. Therefore, it is not necessary to speculate whether a beeper ‘searches’ or ‘seizes’ anything”); but
see, e.g., Connolly, 454 Mass. at 808 (concluding based on
two separate analyses that the installation and use of the
GPS device in the circumstances of the case was a seizure
requiring a warrant); cf. id. at 833 (Gants, J., concurring)
(disagreeing with the majority’s “seizure” conclusion—“[i]n
our constitutional jurisprudence, this invasion is better
characterized as a search” and noting that the distinction
is “not merely academic”).)
Courts rarely or seriously regard the actual physical
contact that occurs when law enforcement agents install
GPS devices. That is unfortunate, given that the case for
a Fourth Amendment seizure may be stronger than for a
search. Before Knotts, the Fifth Circuit in United States
v. Holmes, 521 F.2d 859 (5th Cir. 1975) aff’d en banc,
537 F.2d 227 (5th Cir. 1976), determined that warrantless installation and monitoring of a beeper violated the
Fourth Amendment, as the governmental beeper surveillance was akin to it “hiding an agent in the trunk” of the
tracked vehicle. (Id. at 865 n.11.) The Fifth Circuit found
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irrelevant the “presence or absence of a physical intrusion into the interior of the car.”
In Knotts, 460 U.S. at 278–79, the tracking device was
also not attached to the surveilled vehicle, but rode within a container that was then placed inside the tracked vehicles. There, counsel did not challenge the attachment
of the beeper to the container as a seizure, nor did he
challenge the government’s conduct interfered with his
client’s possessory rights in the purchased container. Accordingly, the court did not answer the question “does
the government’s attachment of a beeper to an item
purchased by the suspect constitute either a search or
a seizure?” Justice Brennan revealed that Knotts would
have been a “much more difficult case if respondent had
challenged . . . [the beeper’s] original installation.” Justice Stevens agreed. (Id. at 288 (Stevens, J., dissenting).)
In Karo, one year later, the court, again, failed to address the “installation as seizure” issue, as the vendor’s
consent obviated the Fourth Amendment warrant requirement. Still, the majority noted the potential for
government abuse. Justice Stevens was more pointed
and deemed the beeper attachment a seizure. “When the
Government attaches an electronic monitoring device
to [respondents’] property, it infringes that exclusionary
right; in a fundamental sense it has converted the property to its own use.” Justice Stevens noted that, surely,
such an invasion and transformation qualifies as an “interference” with possessory rights, as the right to exclude
(which attached as soon as the can of ether that respondents purchased was delivered) had been infringed. (See
Karo, 468 U.S. at 729 (Stevens, J., dissenting).)
Still, seizure-based challenges to the government’s
use of GPS surveillance is a territory largely unexplored
and unasserted. That is unfortunate. Given that both the
Knotts concurrence and Karo dissent articulated seizure
as a sound constitutional position, some courts still reject the notion that governmental attachment of a GPS
device is properly deemed a “seizure,” as the device may
not have affected “the car’s driving qualities, draw power
from the car’s engine, or battery,” did not intrude upon
or occupy area that “might otherwise have been occupied by passengers or packages,” or alter the vehicle’s
appearance. (See, e.g., United States v. Garcia, 474 F.3d
994, 996–97 (7th Cir. 2007), where the majority characterized the seizure argument as “untenable,” given that
the attached GPS device did not seize the tracked vehicle
“in any intelligible sense of the word.”)
Even when courts acknowledge that there is a level
of intrusion based upon the physical nature of the device’s attachment to a GPS-monitored vehicle, they often remain unmoved by the level of intrusion suffered,
characterized quite often as “minimal” and “justified,”
given the government’s reasonable suspicion of the ve-
hicle’s connection to criminality. (See, e.g., United States
v. Michael, 645 F.2d 252, 256 (5th Cir. 1981) (rejecting
suppression motion and holding “the minimal intrusion
involved in the attachment of a beeper to Michael’s van,
parked in a public place, was sufficiently justified so as to
satisfy any of Michael’s fourth [sic] amendment expectation of privacy concerns”); Burton, 698 F. Supp. 2d at
1307–08 (citing Michael and rejecting defendant’s claim
that attachment raised Fourth Amendment concerns, as
“the intrusion caused by affixing the magnetic tracking
device . . . is minimal” and “reasonable suspicion . . .
justified the placement and monitoring of the beeper”).)
According to one court, “although the idea of a government agent touching one’s vehicle may raise eyebrows, it
does not raise any cognizable constitutional concerns.”
(Sparks,750 F. Supp. 2d at 381.)
With few exceptions, state courts also either reject or
ignore the distinction and its constitutional possibilities.
(See, e.g., Stone, 941 A.2d at 1249–50 (finding Knotts
controlling and its “analysis directly applies” to GPS
device tracking, “simply the next generation of tracking science and technology”); Osburn v. State, 44 P.3d
523, 526 (Nev. 2002); Foltz v. Commonwealth, 698 S.E.
2d 281, 286–88 (Va. Ct. App. 2010, reh’g en banc granted,
699 S.E. 2d 522 (2010).) Despite this reluctance, parties
should not automatically assume that simply because
the GPS device is attached to a vehicle’s exterior in a
nonintrusive manner that there is no legitimate Fourth
Amendment seizure argument to decide. Accordingly,
parties and courts, federal and state, should pay attention to the nature and degree of the device’s attachment;
how the government attaches the device has mattered.
For example, in Connolly, 454 Mass. 808, the Massachusetts court proved how fruitful exploration of the
“attachment as seizure” argument may be. There, the
Supreme Judicial Court of Massachusetts found two
rationales upon which to find government installation
of its GPS device constituted a “seizure” that required a
warrant under the state’s constitution. First, the government took approximately one hour to “install and test”
its GPS-enabled device to the minivan’s battery, relying
upon the vehicle’s electrical system to power the government’s device. (Id. at 811.) Additionally and irrespective
of whether the device drew power from the engine or its
own batteries, the majority also found the installed device
constituted a “seizure” because it meaningfully interfered
with the defendant’s possessory interest in the vehicle. A
“seizure” occurred “not by virtue of the technology employed, but because the police use private property (the
vehicle) to obtain information for their own purposes:”
[i]n addition, as apart from the installation of the
GPS device, the police use of the defendant’s mini-
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van to conduct GPS monitoring for their own purposes constituted a seizure. When an electronic surveillance device is installed in a motor vehicle, be it a
beeper, radio transmitter, or GPS device, the government’s control and use of the defendant’s vehicle to
track its movements interferes with the defendant’s
interest in the vehicle notwithstanding that he maintains possession of it. The owner of property has
a right to exclude it from all the world . . . and the
police use infringes that exclusionary right.
(Id. at 823 (citations and internal quotation marks omitted).)
Similarly, in People v. Xinos, 192 Cal. App. 4th 637
(Cal. App. 2011), the California court found reasonable the defendant’s subjective expectation of privacy
in his SUV’s manufacturer-installed SDM and its digital data, which were “clearly an internal component
of the vehicle itself,” which is protected by the Fourth
Amendment.” The SUV was equipped with a manufac-
of access, manipulation, and usage may also be held sufficiently intrusive to constitute a “seizure.” Again, thus
far, no court seems to take more than passing notice of
the many times the government may access the GPS device to maintain its monitoring abilities. (See, e.g., Marquez, 605 F.3d at 607 (noting law enforcement replaced
the battery seven times); United States v. Walker, 2011
U.S. Dist. LEXIS 13760 at *2 (noting police placed
the device on the suspect’s vehicle four separate times);
Pineda-Moreno, 591 F.3d at 1213 (installing several
mobile tracking units and a GPS device on defendant’s
vehicle seven different times).) It, nevertheless, may be
worthy of pursuit, as the Fourth Amendment does not
ignore de minimus intrusions, and if an intrusion violates an individual’s legitimate expectation of privacy, it
is not de minimus. Presuming that device maintenance
is too minor an intrusion to constitute a search may beg
the constitutional question, as an intrusion “is minor
only if it does not violate protected individual privacy.”
Note the times and ways in which the government
interfaces with the surveilled vehicle to change the
device’s batteries, replace a unit, and detach/reattach
the same or other devices to the car.
turer-installed SDM, which received data from various
inputs related to the vehicle’s restraint systems before,
during, and after an accident. Officers downloaded
data from the SDM to produce a crash data retrieval
report, relied upon by the prosecution at trial, where
the defendant was convicted of, inter alia, vehicular
manslaughter and driving while impaired. On appeal,
the state’s attorney general argued that, under Knotts,
the defendant had no reasonable expectation of privacy
in the SDM data, given that his SUV traveled in public
and others could observe its speed and movements. The
California court rejected the government’s analysis. Despite the diminished expectation of privacy in a vehicle,
the government’s “observations” of the SDM data was
a search. According to the court, the defendant’s SUV
was “internally producing data for its safe operation.
That exceedingly precise data was not being exposed
to the public or being conveyed to any other person.”
(Id. at 655.)
Given both the Connolly and Xinos analyses, parties
are also advised to identify and note the times and ways
in which the government interfaces with the surveilled
vehicle to change the device’s batteries, replace a unit,
and detach/reattach the same or other devices to the car.
Though no federal court has yet held, such high levels
(Bailey, 628 F.2d at 940; cf. See also United States v.
Jones, 625 F.3d 766, 770–71 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (urging consideration of the “important and close question:” whether governmental
“touching or manipulating of the outside of one’s car
is a ‘physical encroachment within a constitutionally
protected area.’”)
Toward a “Mosaic Theory” of Fourth
Amendment Privacy?
Justice 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 Scalia chimed in on this very same issue, and scolded
his colleagues for their failure to keep pace with innovation and technology:
[a]pplying the Fourth Amendment to new technologies may sometimes be difficult, but when it is
necessary to decide a case we have no choice. The
Court’s implication [ ] that where electronic privacy
is concerned we should decide less than we otherwise
would (that is, less than the principle of law necessary
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to resolve the case and guide private action)—or that
we should hedge our bets by concocting case-specific
standards or issuing opaque opinions—is in my view
indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.
(City of Ontario v. Quon, ___ U.S. ___, 130 S. Ct. 2619,
2635 (2010) (Scalia, J., concurring).)
Despite judicial hesitancy and rapidly changing technology, lower courts and counsel are managing to take initial
steps—some tentative, others bold—in applying current
Fourth Amendment law to modern surveillance technology.
In Weaver, 909 N.E. 2d 1195, the facts are as follows.
On December 21, 2005, between one and three o’clock in
the morning, a New York State Police Department investigator crawled under Scott Weaver’s Dodge van, parked
on a street outside his home, to attach a magnetized, battery-operated GPS-enabled device. The device remained
attached to Weaver’s bumper for 65 days straight, monitoring and calculating the van’s every movement, location, travel time, trip length, and repose around-theclock. Ultimately, the government prosecuted Weaver
and another individual; both were charged with two
burglaries that occurred in the same city (Latham, New
York) on the same date (Christmas Eve, 2005). At trial,
the 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. (Id.
at 1195–96.) The state prevailed at the intermediate appellate court level; the defendant’s conviction was affirmed.
Before the New York Court of Appeals, Weaver renewed his challenge regarding admissibility of electronic
surveillance evidence under the Fourth Amendment and
New York Constitution Article I, Section 12 (the state’s
Fourth Amendment analogue). As a result of days’,
weeks’, and months’ worth of surveillance, the court
found there was a “highly detailed profile, not simply of
where we go, but by easy inference, of our associations—
political, religious, amicable and amorous, to name only
a few—and of the pattern of our professional and vocation pursuits.” (Id. at 1199–1200.) This information,
for the Weaver majority, was distinguishable from what
the government gained in Knotts via a tracking beeper.
The New York Court of Appeals deemed GPS satellite surveillance “vastly different,” “exponentially more
sophisticated and powerful, ” and “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 expec-
tation in his movements 24 hours a day, which included
his public movements. Although this “residual” interest
is “perhaps small,” it was sufficient “to support his claim
of a violation of his constitutional right to be free of
unreasonable searches and seizures.” (Id. at 1201.) 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 of Article I, Section 12 of the New
York State Constitution. (Id. at 1203.) The state court’s
analysis has come to be known as the “Mosaic Theory
of GPS Surveillance.”
Shortly after Weaver was decided, the US 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 involving local police
officers and FBI agents began an investigation of two
men, Jones and Maynard, suspecting them of narcoticsrelated crimes. Part of the government’s investigation
included law enforcement placement of a GPS-enabled
surveillance device on Jones’s vehicle. Though the task
force had received a court order authorizing the device’s
installation, they failed to install the device within the
court-authorized timeframe. Instead, they attached it
in the wrong jurisdiction, after the court order had expired. Nevertheless, the task force monitored Jones for
one month. At trial, both men were eventually charged,
inter alia, in a superseding indictment with one count
of conspiracy with intent to distribute and to possess
with intent to distribute a large amount of cocaine and
cocaine base. Jones moved to suppress the GPS-device
surveillance evidence; his motion was denied. Both were
found guilty by a jury. (Id. at 615 F.3d at 549.)
On appeal, the D.C. Circuit refused to read Knotts as
standing for the proposition that individuals have “no
reasonable expectation of privacy in [their] movements
whatsoever, world without end.” (Id. at 557.) Instead,
the D.C. Circuit determined that “[p]rolonged surveillance reveals types of information not revealed by shortterm surveillance, such as what a person does repeatedly,
what he does not do, and what he does ensemble.” (Id.
at 562.) 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 move-
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ments in comprises,” it follows and is reasonable for an
individual to expect “each of [her] movements to remain
disconnected and anonymous,” i.e., to remain—despite
public presence—generally anonymous is a privacy interest that society is prepared to accept as reasonable.
(Id. at 563 (citations omitted).)
With Knotts rendered virtually impotent, the D.C.
Circuit applied a newly invigorated Katz to the facts
before it. Under prong one of Katz, two considerations
compelled the court that the totality of Jones’s 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. (Id. at 558.) The court announced that when it comes to privacy, then, “the whole
may be more revealing than the part.” Here, police used
their GPS device not to track Jones’s 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.” The Maynard court further explained that “[w]hat may seem trivial to the uninformed,
may appear of great moment to the one who has a broad
view of the scene” (citations omitted); one who knows everything about another’s travels can successfully deduce a
panoply of information about habits, activities, character,
sloth, and even political leanings. (Id. at 562.)
Regarding Katz’s second prong, the D.C. Circuit
looked to sources outside the Fourth Amendment to
determine legitimate expectations of privacy, specifically state law. The court made clear that state laws are
not conclusive evidence of nationwide “societal understandings;” however, the laws were “indicative.” The D.C.
Circuit reviewed statutes in, e.g., 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. Per the D.C.
Circuit, the multistate review led to “only one conclusion:
[s]ociety recognizes [the accused’s] expectation of privacy
in his movements over the course of a month as reasonable.” Judge Ginsburg, writing for the panel, held that the
government’s month-long, around-the-clock warrantless
GPS surveillance unconstitutionally defeated Jones’s reasonable expectation of privacy. (Id. at 566–68.)
Strategies for Going Forward
Maynard and Weaver are exciting decisions that, undoubtedly, will, in part, affect the analysis of pro-
longed warrantless GPS surveillance when the matter
reaches the US Supreme Court, which it recently has.
(See United States v. Antoine Jones, No. 10-1259, U.S.
Department of Justice Petition for a Writ of Certiorari
(April 15, 2011), located at http://www.justice.gov/osg/
briefs/2010/2pet/7pet/2010-1259.pet.aa.pdf (last visited
May 14, 2011); see also Pineda-Moreno v. United States,
No. 10-7515, Brief for the United States (April 15, 2011)
(requesting stay of petition for a writ of certiorari, pending disposition of Jones/Maynard).) Until the court accepts certiorari in Jones or another case, parties and
courts should employ their own “belt and suspenders”
analysis of how GPS surveillance data should be treated, perhaps citing the Mosaic Theory—currently good
precedent in one state and one federal circuit—while,
simultaneously employing more “traditional” Fourth
Amendment analyses. The decisions are relatively new
and, outside of New York and the D.C. Circuit, should
be invoked with caution, as there has already been a
strong negative reaction. (See, e.g., Recent Cases: Constitutional Law—Fourth Amendment—D.C. Circuit Deems
Warrantless Use of GPS Device an Unreasonable Search,
124 Harv. L. Rev. F. 827, 831 (January 2011) (asserting the D.C. Circuit’s Mosaic Theory “should never have
occurred . . . [it] was inconsistent with Supreme Court
precedent. . . . [l]argely misconstrued Knotts, and completely ignored the closely related case of Karo, resulting in an analysis untethered from past precedent and
unwieldy as future precedent”); see also United States v.
Walker, 2011 U.S. Dist. LEXIS 13760 (W.D. Mich. 2011)
*8–10 (rejecting Maynard as out of step with “the great
weight of the law from other federal circuits [that] reject
[Maynard’s] view,” including the Seventh and Ninth Circuits, several district, and a number of state courts). Cf.
Weaver, 909 N.E. 2d at 1204–05 (Smith, J., dissenting)
(dismissing the majority’s decision as “illogical” and
“doomed to fail,” as well as imposing a “totally unjustified limitation on law enforcement”); United States
v. Cuevas-Perez, 2011 U.S. App. LEXIS 8675 at *7–8
(7th Cir. 2011) (comparing Cuevas-Perez’s “factually
straightforward case” of a single trip and 60 hours of
GPS surveillance with Maynard’s “uninterrupted use
of a GPS device for a period lasting 28 days”).) But see,
e.g., id. at *42, *56 (Wood, J., dissenting) (criticizing the
majority’s failure to follow the D.C. Circuit’s “thoughtprovoking” and “thoroughly reasoned” Fourth Amendment analysis); United States v. Narrl, 2011 U.S. Dist.
LEXIS 45595 at *17 (D. S. Car. 2011) (finding Knotts
and Walker controlled, yet noting that “[m]uch of the
reasoning in Maynard is attractive”).)
Do not forget to look to state law, even when assessing
Fourth Amendment privacy interests and protections.
Like federal courts, state courts are also divided over
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whether continuous GPS device monitoring constitutes
a “search” under their respective constitutions. Counsel
on both sides of the aisle should check the state’s constitution and codified law. State courts are free to afford
broader protections under their own constitutions (versus the federal Constitution). (See Michigan v. Mosley,
423 U.S. 96, 120 (1975) (Brennan, J., dissenting); see
also, e.g., Weaver, 909 N.E.2d at 1212 (“surely, we may
establish a greater level of protection under our State
Constitution for those rights than the Supreme Court
recognizes under a parallel provision of the national
Constitution—equally, there is no doubt whatsoever
about that”); State v. Campbell, 306 Ore. 157, 172–73
(1988) (noting that warrantless GPS-enabled surveillance is precluded by Oregon’s constitution; attachment
and use of a beeper is a search and seizure under the
Oregon constitution); State v. Jackson, 76 P.3d 217, 220
(Wash. 2003) (en banc) (finding GPS-enabled surveillance a search under Washington State’s constitution).))
But, be careful. The jurisdiction may codify a reasonable expectation of privacy in the information provided
by a GPS device; however, it may not cover the particular device or the facts of a particular case. (See, e.g.,
Xinos, 192 Cal. App. 4th 653 (finding California section
9951 created privacy rights in car’s “black box,” but not
the defendant’s 2002 SUV, as the law applied to “vehicles
manufactured on or after July 1, 2004”).)
Conclusion
Until the Supreme Court does speak, successful challenges—in the form of court suppression of the GPS evidence and its fruits—will depend upon the jurisdiction’s
precedent, the actual (versus potential or hypothetical)
injury to the movant, the source of the right (US Constitution, state constitutional law, or legislatively codified law) and, as always, counsel’s willingness to test the
doctrine’s reach. Thus far, federal circuits are split and
state courts are also divided. Holdings diverge based on
the facts, as well as the jurisdiction’s interpretation of
Katz, Knotts, and Karo, as well as its ability to liken or
distinguish GPS and beeper surveillance under its own
precedent and state law. n
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