THE SUPREME COURT
________
Case No. 11-0666
_________
UNITED STATES OF AMERICA, ……...…………………………..…Petitioner,
v.
MILLY SHEALER……………………………………………………Respondent.
__________
FINAL BRIEF OF RESPONDENT
__________
TEAM P
TABLE OF CONTENTS
TABLE OF AUTHORITIES ……………………………….…….i
STATEMENT OF ISSUES ON APPEAL……..……...………….1
STAEMENT OF JURISDICTION……..………...…………….....2
STATEMENT REGARDING ORAL ARGUMENT……………..2
STATEMENT OF THE CASE……..……………………………..2
SUMMARY OF THE ARGUMENTS……………………………7
ARGUMENT..…………………………………………………...10
I.
BECAUSE THE GOVERNMENT PLACED A
TECHNOLOGICALLY ADVANCED
TRACKING DEVICE, THE GPS, ON A
VEHICLE TO MONITOR ITS MOVEMENTS
WITHOUT A WARRANT OR CONSENT FOR A
PROLONGED PERIOD OF TIME, THE
RESPONDENT’S FOURTH AMENDMENT
RIGHTS WERE VIOLATED…………..…........10
A. The Government Violated The Respondent’s
Expectation Of Privacy That Society Considers
Reasonable When It Used A GPS Tracking
Device To Monitor And Record a Vehicle’s
Movement Without A Warrant Or
Consent...........................................................11
B. Even If The Tracked Vehicle Did Travel On
Public Roads, The GPS Device Was Used For
A Prolonged Period Of Time Which Was
Unreasonable Without A Warrant, Consent, Or
A Warrant
Exception.……………………………..…….17
II.
i.
Distinguishing the beeper and other
technology from the GPS…………...20
ii.
The purposes for a warrant or an
exception and its necessity………….24
BECAUSE THE GOVERNMENT ATTACHED A
GPS DEVICE TO A PRIVATE VEHICLE
WITHOUT A WARRANT OR CONSENT, THIS
CONSTITUTED A FOURTH AMENDMENT
SEIZURE OF PROPERTY..…………….……...28
A. Installing The GPS Device Without A Warrant
Or Consent Interfered With The Respondent’s
Property Rights In The Vehicle.……………..28
i.
The Respondent had a possessory
interest in the vehicle………………...29
ii.
The installation of the device was a
seizure, a meaningful interference with
the Respondent’s possessory interest...30
iii.
The act of installing the device was at
least a trespass and at most a conversion
of property……………..………….…32
B. Even Without A Property Interest In The
Vehicle, The Respondent Had An Expectation
Of Privacy In The Vehicle She Was Using….37
i.
The Respondent had a reasonable
expectation of privacy in the hidden
areas of the vehicle, and society is
willing to recognize this expectation as
objectively reasonable………………..37
ii.
The Respondent did not intentionally
expose her undercarriage to the
public………………………………...43
CONCLUSION ……………………..………………………......44
TABLE OF AUTHORITIES
CASES:
Agnello v. United States, 269 U.S. 20 (1925)……………………25
Arizona v. Gant, 556 U.S. 332 (2009)…………………………...38
Arizona v. Hicks, 480 U.S. 321 (1987)…………………………..26
Boyd v. United States, 116 U.S. 616 (1886)……………………..28
Bryant v. Gates, 532 F.3d 888, 382 U.S. App. D.C. 287
(D.C. Cir. 2008)……………………..…………………………...27
Cardwell v. Lewis, 417 U.S. 583 (1974)…………………………39
Deleware v. Prousse, 440 U.S. 648 (1979)………………………27
Horton v. California, 496 U.S. 128 (1990)………………………26
Illinois v. Andreas, 463 U.S. 765 (1983)………………………...11
Jones v. United States, 362 U.S. 257 (1960)…………………….38
Katz v. United States, 389 U.S. 347
(1967)……………………......12-13, 15-16, 23, 25-26, 29, 39, 43
Kyllo v. United States, 533 U.S. 27 (2001)………………………44
i
Mapp v. Ohio, 367 U.S. 643 (1961)……………………………...27
Oliver v. United States, 466 U.S. 170 (1984)………….…14-15, 32
Olsen v. Drug Enforcement Admin., 495 U.S. 906 (1990)………25
Osborn v. United States, 385 U.S. 323 (1966)…………………...23
Payton v. New York, 445 U.S. 573 (1980)……………………….42
Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969)………………..35
Pennsylvania v. Labron, 518 U.S. 938 (1996)…………………...26
Shealer v. United States, No. 11-0666
(4th Circ. May 11, 2011)………………………………………29
Silverman v. United States, 365 U.S. 505 (1961)…………….32-33
Smith v. Maryland, 442 U.S. 735 (1979)…………………….…..11
Soldal v. Cook County, Ill., 506 U.S. 56 (1992)……………..31, 41
Terry v. Ohio, 329 U.S. 1 (1968)…………………………….11, 42
United States v. Berry, 300 F. Supp. 2d 366 (D. Md. 2004)…….20
United States v. Holmes, 521 F.2d 859 (5th Cir. 1975)…...18-19, 43
United States v. Jacobsen, 466 U.S. 109 (1984)……..11, 30, 40-41
ii
United States v. Jesus-Nunez, 1:10-CR-00017-01, 2010 WL
2991229 (M.D. Pa. July 27, 2010)…………………………….18
United States v. Karo, 468 U.S. 705 (1984)………………….33-34
United States v. Knotts, 460 U.S. 276 (1983)...11, 19, 21-22, 33-34
United States v. Maynard, 615 F.3d 544
(D.C. Cir. 2010)………………………………...15, 17, 22, 26-27
United States v. McIver, 186 F.3d 1119 (9th Cir. 1999)…35-36, 40
United States v. Ross, 456 U.S. 798 (1982)……………………...40
United States v. Rubio-Rivera, 917 F.2d 1271 (10th Circ. 1990)..30
United States v. Salvucci, 448 U.S. 83 (1980)…………………...38
United States v. Sparks, 750 F. Supp. 2d 384
(D. Mass. 2010)…………………………………………….39, 43
United States v. Thornley, 707 F.2d 622 (1st Cir. 1983)………...39
Warden v. Hayden, 387 U.S. 294 (1967)………………………...25
Welsh v. Wisconsin, 466 U.S. 740 (1984)………………………..25
Wong Sun v. United States, 371 U.S. 471 (1963)………………..25
iii
CONSTITUTION:
U.S. Const. amend IV……………………………………………11
OTHER AUTHORITIES:
Restatement (Second) of Torts § 222A (1965)………..…………35
Renee McDonald Hutchins, Tied Up in Knotts?
Gps Technology and the Fourth Amendment,
55 UCLA L. Rev. 409 (2007). ………………………………20
Kaitlyn A. Kerrane, Keeping Up with Officer
Jones: A Comprehensive Look at the Fourth
Amendment and Gps Surveillance,
79 Fordham L. Rev. 1695 (2011)…………………….…..28-29
Vivek Kothari, Autobots, Decpticons, and
Panopticons: The Transformative Nature
of GPS Technology and the Fourth
Amendment, 6 Crim. L. Brief 37 (2010)……………...13, 16-17
Eli R. Shindelman, Time for the Court to
Become “Intimate” with Surveillance
Technology, 52 B.C. L. Rev. 1909 (2011)…………...………18
iv
STATEMENT ON ISSUES OF APPEAL
I. Did the Court of Appeals properly conclude that where the
government used a technologically advanced tracking
device, the GPS, on a vehicle to provide location
information while the car was on public thoroughfares
for an extended period of time did not constitute a
search under the protections of the Fourth Amendment?
II. Did the Court of Appeals properly rule that because the
government attached a GPS device to a private vehicle
without a warrant or consent constituted an
unreasonable seizure under the Fourth Amendment?
1
STATEMENT OF JURISDICTION
The Court has jurisdiction under 28 U.S.C. §1331. The
decision under review from the United States Court of Appeals for
the Fourth Circuit is an order reversing the judgment of the United
States District Court of South Carolina on an issue of Fourth
Amendment Protection.
STATEMENT REGARDING ORAL ARGUMENT
Respondent, pursuant to Federal Rules of Appellate
Procedure 34(a) request oral argument. Oral argument could assist
this Court in consideration of the issues raised herein, expressly in
modifying the Courts previous decisions regarding Fourth
Amendment violations.
STATEMENT OF THE CASE
Facts
This case involves Milly Shealer (the Respondent) of
whom was charged with knowingly, intentionally and unlawfully
possessing with intent to distribute a quantity of heroin and has
moved to suppress a the drugs seized by City of North Charleston
2
Police Department. (R. District Court {DC} p. 1). During the
spring of 2009, information was received by the North Charleston
Police Department that the Respondent was involved in the
distribution of the drug heroin. (R. DC p. 2). Officers conducted
surveillance of the Respondent coming in and out of her apartment,
and witnessed her movements in a white 2004 Pontiac Grand Prix
which was registered to Michelle Elsey. On May 6, 2009,
Detective Drew Bradshaw placed a GPS (Global Positioning
System) tracking device onto the undercarriage of the vehicle
while it was parked in a public place. (R. DC p. 2). This GPS was
used to track all of the movements of the vehicle using technology
and a wireless system, which linked police to a real-time
monitoring system via a computer for almost a month. (R. DC p.
2).
From May 6 to May 30, 2009, the car had rarely been
moved, however, on May 31, 2009, at 9:00 a.m., Detective
Bradshaw saw that the Pontiac left North Charleston at
approximately 1:33 a.m. and had been traveling along the interstate
3
with only occasional short stops. (R. DC p. 2-3). The vehicle
traveled through Virginia and continued on its path until arriving in
Newark, New Jersey at approximately 2:30 p.m. (R. DC p. 3).
After 3:49 p.m., the vehicle left New Jersey traveling on I-95 south
and continued to travel until it finally arrived in Charleston at 4:30
a.m. via I-26 on June 1, 2006, this being the twenty-seventh day of
police surveillance using the GPS system. (R. DC p. 3).
Based on what the police officers considered suspicious
activity for the vehicle’s long trip after assessing the GPS tracking
system, officers set up physical surveillance along I-26 prior to the
Respondent’s return. When the vehicle in question was seen
moving into the exit lane without signaling when it approached the
Ashley Phosphate Road exit, Detectives Spencer Craig and Johnny
Caldwell initiated a traffic stop, approached the vehicle, and
questioned the two women inside. (R. DC. p. 3). Based on the
GPS tracked movements of the vehicle, the Respondent’s nervous
behavior witnessed during questioning, and the misinformation
presented by the Respondent in regard to her age, the officers
4
determined that no warrant was needed and asked the two women
to step out of the vehicle. (R. DC p. 3).
The Respondent and Ms. Kelley told two versions of a
story involving their travels to New Jersey, however, the officers
already knew the exact movements of the two prior to questioning
them based on the accuracy and accounting of the GPS system.
(R. DC p. 3). A canine unit was already at the scene during the
time of questioning; therefore, Officer Kenny Gardner deployed
his dog to conduct a perimeter sniff of the vehicle to establish
whether or not illegal narcotics could be detected. (R. DC p. 3-4).
Upon a positive alert from the drug dog, police officers searched
the passenger compartment of the vehicle and noticed a lose panel.
(R. DC p. 4). Detective Dinwoodie then pulled out the panel,
reached under the carpet and padding, and removed five bags filled
with a light brown powder which field-tested positive for heroin.
(R. DC p. 4).
After arrest the Respondent and Ms. Kelley for the
possession with intent to distribute heroin, the officers finally
5
obtained a search warrant to search the vehicle. (R. DC p. 4). The
search produced a Haitian Passport for the Respondent, a plastic
bag with 1,000 bags of heroin, and other items. Finally, the
officers obtained and executed a search warrant for the
Respondent’s residence, which confirmed the identities of the two
women. (R. DC p. 4).
Proceedings Below
Respondent filed a motion to suppress evidence obtained in
violation of her Fourth Amendment Rights. The District Court of
South Carolina denied her motion on October 5, 2010, holding that
there was no unreasonable search or seizure in violation of the
Fourth Amendment. Respondent reserved her right to appeal the
District Court’s decision by entering a conditional guilty plea. The
United States Court of Appeals for the Fourth Circuit heard her
appeal on April 8, 2011. The Appeals Court reversed the District
Courts order and Respondent’s conviction, holding that although
there was not an unreasonable search in violation of the Fourth
6
Amendment, there was an unreasonable seizure. This court
granted Certiorari on October 21, 2011.
SUMMARY OF THE ARGUMENTS
Because the government placed a technologically advanced
tracking device, the GPS, on a vehicle to monitor its movements
without a warrant or consent for a prolonged period of time, the
Respondent’s Fourth Amendment rights were violated. The
Respondent had an expectation of privacy that society considers
reasonable, and her rights were violated when the government
installed the tracking device on her vehicle and tracked her every
move using a GPS, thus constituting a search and seizure. This
invasion into privacy, using such an advanced piece of technology,
goes beyond the scope the drafters intended in penning the Bill of
Rights. The line separating public and private is not black and
white, especially considering these technological issues. One only
need share with the public a reasonable expectation of privacy in
an area for the Fourth Amendment to apply. Therefore, the spirit
of the Constitution and Bill of Rights should be utilized when
7
considering aspects of an individual’s privacy.
In addition, the installation of the device onto another
person’s property constitutes a seizure of that property. One of the
most important sticks in the bundle of property rights is the right to
exclude. By installing a GPS device, the government intruded on
the Respondent’s possessory interest, and converted the vehicle
into a law enforcement tool.
Furthermore, even if the tracked vehicle did travel on what
is considered to be “public” roads, the GPS device was used for a
prolonged period of time, which was unreasonable without a
warrant, consent, or a warrant exception. The beeper, as used for
earlier precedence, is distinguishable from the GPS by the fact that
its abilities are far superior, thus creating the ability to track exact
location, speed and direction of an individual. Because the GPS
was used for continuous, precise surveillance without a warrant,
consent, or an exception, the evidence gathered must fall under the
exclusionary rule and, therefore, the information and evidence
must be suppressed. A new age of technology demands a modern
8
approach to issues involving searches and seizures when
considering the purposes for protecting an individual’s privacy
interests as under the Fourth Amendment.
9
ARGUMENT
I. BECAUSE THE GOVERNMENT PLACED A
TECHNOLOGICALLY ADVANCED TRACKING
DEVICE, THE GPS, ON A VEHICLE TO
MONITOR ITS MOVEMENTS WITHOUT A
WARRANT OR CONSENT FOR A PROLONGED
PERIOD OF TIME, THE RESPONDENT’S
FOURTH AMENDMENT RIGHTS WERE
VIOLATED.
This case is about technological advances in a society
requiring a revision in the law regarding the implications of GPS
trackers involving searches and seizures as described by the Fourth
Amendment. Furthermore, this Amendment is violated if the
government uses a GPS tracking device to monitor and record a
vehicle’s movements while on public and private roads-without a
warrant or the owner’s consent unless an exception is appropriately
applied. Allowing law enforcement to singly determine that a GPS
may be used to track the exact location and movements of a person
for a prolonged period of time, without the use of individual
consent or a warrant, constitutes an infraction upon that persons
liberties as protected by the Constitution and Bill of Rights.
10
All U.S. citizens have “[t]he right . . . to be secure in their
persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. Const. amend. IV. While the Court of Appeals
seeks to remain true to previous precedence, the new and explosive
concept of the GPS is far more than our forefathers imagined in
their construction of the Bill of Rights.
A. The Government Violated The Respondent’s
Expectation Of Privacy That Society Considers Reasonable
When It Used A GPS Tracking Device To Monitor And
Record A Vehicle’s Movement Without A Warrant Or
Consent.
The Court of Appeals erred in holding that law
enforcement’s placement and use of a GPS tracking device on the
Respondent’s vehicle did not constitute a search or seizure. “A
“search” [or seizure] occurs when an expectation of privacy that
society is prepared to consider reasonable is infringed.” United
States v. Jacobsen, 466 U.S. 109, 113 (1984). See Illinois v.
Andreas, 463 U.S. 765, 771 (1983); United States v. Knotts, 460
U.S. 276, 280-281 (1983); Smith v. Maryland, 442 U.S. 735, 739741 (1979); Terry v. Ohio, 329 U.S. 1, 9 (1968). However, lower
11
courts have been reluctant to extend Fourth Amendment
protections to prohibit the use of GPS tracking devices, and the
definition of the term search has transcended boundaries.
The purpose of the Fourth Amendment is to protect citizens
from “unreasonable” intrusions and invasions, and using a modern
view to include the scope of technology along with its
implications, is necessary to protect the interests the Constitution
and Bill of Rights. Therefore, the installation of a GPS tracking
device on the Respondent’s vehicle for a prolonged and continuous
period of time constituted a search under the Fourth Amendment
that requires a warrant, regardless of whether the vehicle traveled
on public or private roads.
An individual is afforded protection when, first, a person
has exhibited an actual and subjective expectation of privacy, and,
second, when that expectation is one that society is prepared to
recognize as “reasonable.” Katz v. United States, 389 U.S. 347,
361 (1967). Additionally, to be granted protection under the
12
Fourth Amendment, a person must have standing. Here, the
Respondent has standing because the rights violated are hers.
First, a person must exhibit an actual and subjective
expectation of privacy in order to achieve protection under the
Fourth Amendment. Katz at 361. The Respondent’s vehicle was in
plain view and in a public space when the GPS was first mounted
to the vehicle, without the owner’s knowledge and without a
warrant. Using this complicated piece of technology, law
enforcement personnel tracked the Respondent’s every move in the
vehicle, even though the car was parked a majority of the time.
However, the issue then becomes: are public roads really public
when you track a person using GPS?
Unlike an outdated beeper device, a GPS has the ability to
track “twenty-four hours a day, for weeks, months, or years at a
time at only a nominal cost.” Vivek Kothari, Autobots,
Decepticons, and Panopticons: The Transformative Nature of GPS
Technology and the Fourth Amendment, 6 Crim. L. Brief 37
(2010). This improved form of tracking thus allows the
13
government to track your every move, from the moment you step
out of your house, and thereby each step you take could be
considered “public.” This is not communist China or George
Orwell’s 1984 version of the future in which Big Brother tracks
each of your moves. The framers created the Constitution and Bill
of Rights to protect, not prohibit, individual liberty. Specifically,
the Fourth Amendment was a product, as a constitutional
protection against the opportunity for governmental abuse, to
restrict control similar to that which was executed by the British
over the colonies prior to the American Revolution. Kothari at 38.
The line separating public and private is not black and
white, especially considering today’s technological advances. To
fulfill the spirit of the Constitution and the Bill of Rights, it is
necessary to embolden privacy rights not restrict them. While on
public roads, a vehicle (and the person inside of it) is exposed to
public viewing, and therefore, it is not completely private. Oliver
v. United States, 466 U.S. 170 (1984). However, there is a an
expectation of privacy that each of an individual’s moves will not
14
be tracked to pinpoint accuracy using twenty-four hour
surveillance without just cause and warrant.
The Court in Oliver involved officers on foot without the
use of GPS tracking devices. Id. Here, the government used a
hidden GPS linked wirelessly and without a warrant; therefore, if
this technology is allowed without restriction, the floodgates are
open to tracking anyone via GPS. As Judge Dumbledore’s opinion
in the Court of Appeals noted, what’s to stop this from allowing
the government to use satellite-imaging technology to take
photographs of tracked individuals when in public view?
Determining whether or not the expectation of privacy is
reasonable must depend on the extent to which information has
been exposed to the public. United States v. Maynard, 615 F.3d
544, 558 (D.C. Cir. 2010); citing Katz, 389 U.S. at 351. First, “the
whole of one’s movements over the course of a month is not
actually exposed to the public because the likelihood anyone will
observe all those movements is effectively nil.” Maynard at 558.
Second, taken constructively, the “whole reveals more –
15
sometimes a great deal more – than does the sum of its parts.” Id.
In using these two prongs, it is easy to ascertain that the
Respondent’s movements were not actually or constructively
exposed to the public when tracked by a GPS for a prolonged
period of time. Therefore, “[t]he difference is not one of degree
but of kind, for no single journey reveals the habits and patterns
that mark the distinction between a day in the life and a way of life
. . .” Id.
Second, if a person has exhibited an actual and subjective
expectation of privacy, that expectation must be one that society is
prepared to recognize as “reasonable.” Katz at 361. But, how do
we define what we, as the society at large, deem to be a reasonable
expectation of privacy involving new technology such as the GPS?
By allowing the use of such GPS tracking devices, theoretically,
“your participation in a political rally is noted; your trip to the
abortion clinic, recorded; your weekly visits to the psychiatrist,
revealed.” Kothari at 37. George Orwell’s fiction 1984 and
today’s reality are two very different times, and thankfully so! It
16
seems unlikely that the population would choose to recognize that
such an intrusive form of surveillance without a warrant goes
beyond the scope of reasonable.
Additionally, according to the court in Maynard,
“prolonged GPS monitoring defeats an expectation of privacy that
our society recognizes as reasonable” when the length of time is
thoroughly considered and evaluated for reasonableness. Maynard
at 564. “[T]here is little evidence to suggest that the public would
be aware of mass surveillance even if it were taking place;”
however, creating this type of surveillance goes beyond the means
of observation and in into the realm of unreasonableness under the
sphere of individual and societal preference for privacy. Kothari at
51.
B. Even If The Tracked Vehicle Did Travel On Public
Roads, The GPS Device Was Used for a Prolonged Period
of Time Which Was Unreasonable Without a Warrant,
Consent, or a Warrant Exception.
Did the framers intend that law enforcement would have
the ability to track anyone, at any time, to anywhere on the globe
17
for an extended period of time? Not likely. It is very possible that
police officers could have obtained twenty-four hour visual
surveillance for four weeks, however, the period of time observed
without a warrant is unreasonable. “An individual has a
reasonable expectation of privacy in his whereabouts over a
prolonged period of time since such information is neither actually
nor constructively exposed.” Eli R. Shindelman, Time for the
Court to Become “Intimate” with Surveillance Technology, 52
B.C. L. Rev. 1909, 1943 (2011).
It may be possible for law enforcement to maintain a
twenty-four hour visual surveillance for a month (or even a few
weeks), but it is highly improbable. United States v. Jesus-Nunez,
1:10-CR-00017-01, 2010 WL 2991229 (M.D. Pa. July 27, 2010).
The Fifth Circuit stated that government supposes that there is no
expectation of privacy in regard to travel on public roads, and any
device used to track this travel “only augments that which can
admittedly be done by visual surveillance.” United States v.
Holmes, 521 F.2d 859, 866 (5th Cir. 1975) on reh'g, 537 F.2d 227
18
(5th Cir. 1976). However, the Fifth Circuit posits that if this is the
case, “then there is no need for the device in the first place. Its
value lies in its ability to convey information not otherwise
available to the government.” Id.
This Court seemed to forecast that a time may come when
technological advances constitute a different application of
principles in saying, “if such dragnet type law enforcement
practices as [the] respondent envisions should eventually occur,
there will be time enough then to determine whether different
constitutional principles may be applicable.” Knotts, 460 U.S. 276,
284 (1983). That time is now, and it is up to this Court to take on a
difficult topic while keeping in mind the great importance of the
individual’s privacy rights while evaluating the new and advanced
technologies of the modern day. Professor Rene Hutchins writes,
Recognizing that constitutional protections may be
warranted if tracking surveillance revealed more than the
limited quantity of information disclosed by a beeper . . . .
The Court's cautionary words in Dow Chemical and Knotts
underline the notion that while sense-augmenting
surveillance does not typically trigger Fourth Amendment
concerns, where such devices reveal information that is
19
noteworthy for its potential volume or detail, constitutional
protections may be required.
Rene McDonald Hutchins, Tied Up in Knotts? Gps Technology
and the Fourth Amendment, 55 UCLA L. Rev. 409, 439-40 (2007).
The GPS can and does reveal sensitive information in such detail
that it must be strictly monitored, and furthermore, the “Court
might conclude . . . that the new technology is so intrusive that the
police must obtain a court order before using it.” United States v.
Berry, 300 F. Supp. 2d 366, 368 (D. Md. 2004). The lower courts
make their decisions using precedent that does not properly
identify the issue as an evolving technological problem that
requires further and more thorough investigation.
i.
Distinguishing the beeper and other
technology from the GPS.
The GPS is a navigation system that uses space-based
navigation in order to determine exact location, speed, and
direction of the item being pursued. Shindelman at 1918. This
technology was first developed by the U.S. Department of Defense
in the use of warfare in the 1970’s, but has since transcended the
20
military to new applications under the civilian population. Id. The
risks of using a GPS tracking device without a warrant far
outnumber the risks assumed using outdated technology such as
the beeper. As the Court of Appeals noted, some of these risks
include the following: extremely precise location information,
opening the floodgate with GPS data by FOIA releasing all
information obtained as within the public domain, and giving the
government unilateral authority to track anyone and everyone for a
prolonged period of time using such advanced technologies.
Cases, such as the one at hand, involving GPS tracking devices are
distinguishable from other cases regarding beepers, and therefore,
require a separate and updated investigation.
The most cited case by the lower courts is that of United
States v. Knotts, however, its precedence is not controlling in the
current scenario. There, a law enforcement official put a beeper
transmitter in a five-gallon barrel of chloroform prior to being
purchased by one of the defendant’s co-conspirators to track a
suspect on public roads during a one hundred mile trip. United
21
Knotts at 281. Beepers have a limited range and do not record
movements based on longitude and latitude, unlike that of the GPS.
Additionally, beepers must be constantly monitored and physically
tracked by law enforcement to remain in signal. The Court
determined that there was no reasonable expectation of privacy
because the information was “voluntarily conveyed to anyone who
wanted to look…” due to the trip taking place on public roads. Id.
at 281.
However, the Court never stated that there was no
reasonable expectation of privacy in the respondent’s movements.
Id; citing Maynard at 557. Knotts is distinguishable in that Shealer
did have a reasonable expectation of privacy in that the GPS
tracking occurred twenty-four hours a day for almost four weeks,
which is a vast and unreasonable period of time for surveillance.
Therefore, like the case in United States v. Maynard, “discovering
the totality and pattern of [her] movements from place to place to
place” for an extended period of time goes beyond the scope of
Knotts. Maynard at 558.
22
Another case that falls under the scope of surveillance and
technology is that of Katz v. US. Katz v. United States, 389 U.S.
347 (1967). “[W]hat he sought to exclude when he entered the
[telephone] booth was not the intruding eye . . . . He did not shed
his right to . . . [privacy] simply because he made his calls from a
place where he might be seen.” Katz at 352. “[T]he Fourth
Amendment protects people -- and not simply “areas” -- against
unreasonable searches and seizures, . . . [and] the reach of that
Amendment cannot turn upon the presence or absence of a
physical intrusion into any given enclosure.” Id. at 353. “[U]nder
sufficiently “precise and discriminate circumstances,” a federal
court may empower government agents to employ a concealed
electronic device “for the narrow and particularized purpose of
ascertaining the truth of the . . . allegations” of a “detailed factual
affidavit alleging the commission of a specific criminal offense.”
Id. at 355; citing Osborn v. United States, 385 U.S. 323, 329-330
(1966). Here, there was no precision or narrowed purpose in
allowing a GPS to track the every move of the Responded for
23
almost four weeks.
The Fourth Amendment prohibits the act of the search, not
the results, and unconstitutional searches and seizures equates to
inadmissible evidence. The problem here is the GPS, as described,
because it was used for continuous, precise surveillance that makes
it far superior to the beeper or a phone tap. Therefore, tracking the
Respondent with a GPS device without a warrant or consent for a
prolonged period of time was unreasonable, and the evidence
gathered cannot be used unless there was a valid warrant or an
exception.
ii.
The purposes for a warrant or an exception
and its necessity.
The purpose of the warrant is a means of ensuring that
searches and seizures are undertaken with care so that the
individual’s liberties may be protected as a U.S. citizen in order to
maximize freedom. “Searches conducted without warrants have
been held unlawful ‘notwithstanding facts unquestionably showing
probable cause,’ for the Constitution requires ‘that the deliberate,
impartial judgment of a judicial officer . . . be interposed between
24
the citizen and the police . . .’” Katz at 357; citing Wong Sun v.
United States, 371 U.S. 471, 481-482 (1963); citing Agnello v.
United States, 269 U.S. 20, 33 (1925). It is possible, and even
easy, to obtain a valid warrant to place a GPS device on a vehicle,
and the purposes for requiring a warrant are to ensure safeguards
are in place to protect an individual’s privacy interests. In the
current case, surveillance without a warrant that went on every
single second for almost four weeks is unreasonable, and without a
warrant, the Court is left to rely on an exception to the warrant
requirement in order to uphold the lower court’s decision.
Warrant exceptions that may apply include exigent
circumstances, plain-view doctrine, automobile exceptions, and
consent. Probable cause is needed for exigent circumstances,
which are typically classified as the hot pursuit of a fleeing felon,
imminent destruction of evidence, need to prevent a suspect’s
escape, or the risk of danger to police or other citizens. Warden v.
Hayden, 387 U.S. 294 (1967); Olsen v. Drug Enforcement Admin.,
495 U.S. 906 (1990); Welsh v. Wisconsin, 466 U.S. 740 (1984).
25
However, “the very nature of electronic surveillance precludes its
use pursuant to the suspect’s consent,” and therefore, no hot
pursuit would have been necessary. Katz at 358. The fact that
there were no exigent circumstances is verified by the fact that the
surveillance took place almost four weeks, thus no need for this
particular exception is available.
The plain view exception applies to seizures, not searches,
and the fact that the vehicle was never tracked by the human eye
attests to a different form of surveillance not covered under this
particular exception. Horton v. California, 496 U.S. 128 (1990);
Arizona v. Hicks, 480 U.S. 321 (1987). Rather, this form of
surveillance involved observation using a computer and map, with
no “eye” on the Respondent.
Under the automobile exception, if probable cause exists
that contraband may be within a mobile vehicle, police may be
permitted to search it. Maynard at 567; citing Pennsylvania v.
Labron, 518 U.S. 938, 940 (1996). Although the police may have
the ability to search a vehicle for contraband, there is no language
26
authorizing the installation of a tracking device without the
approval of a judge. Maynard at 567; citing Delaware v. Prouse,
440 U.S. 648, 662-663 (1979). Therefore, the search of the
Respondent’s vehicle would not have been performed but for the
use of the GPS tracking device.
Finally, the Respondent, or her roommate, was never asked
to have her vehicle tracked by a GPS; therefore, the police have no
consent as an exception to the warrant requirement. Furthermore,
because these arguments were not made in the district court, all
exceptions should be forfeited. Bryant v. Gates, 532 F.3d 888,
898, 382 U.S. App. D.C. 287 (D.C. Cir. 2008).
The Respondent’s Fourth Amendment was violated when
the government used a GPS tracking device to monitor and record
the vehicle’s movements while on public roads without a warrant
or consent for a prolonged period of time. Therefore, evidence
obtained in violation of the Respondent’s constitutional rights must
be suppressed under the exclusionary rule. Mapp v. Ohio, 367
U.S. 643 (1961). This Court said it best in Boyd v. United States,
27
It may be that it is the obnoxious thing in its mildest and
least repulsive form; but illegitimate and unconstitutional
practices get their first footing in that way, namely, by
silent approaches and slight deviations from legal modes of
procedure.
Boyd v. United States, 116 U.S. 616, 635 (1886). A new age of
technology calls for a modern approach to the problems that arise
from the ability to delve deeper into the individual’s privacy
interests.
II. BECAUSE THE GOVERNMENT ATTACHED A GPS
DEVICE TO A PRIVATE VEHICLE WITHOUT A
WARRANT OR CONSENT, THIS
CONSTITUTED A FOURTH AMENDMENT
SEIZURE OF PROPERTY.
A. Installing The GPS Device Without A Warrant Or
Consent Interfered With The Respondent’s Property Rights
In The Vehicle.
The trend in the lower courts is to analyze the installment
of a GPS device to a private vehicle based on the location of the
vehicle at the time of installation. Kaitlyn A. Kerrane, Keeping Up
with Officer Jones: A Comprehensive Look at the Fourth
Amendment and Gps Surveillance, 79 Fordham L. Rev. 1695, 1731
(2011). This analysis is based on privacy concerns, and “simply
28
does not address the police's physical usurpation of protected
property.” Id. Indeed, the Fourth Amendment protects individual
privacy against certain kinds of governmental intrusion, but its
protections go further, and often have nothing to do with privacy at
all. Katz at 350. While the Court in Katz held that Fourth
Amendment protections include those areas in which a reasonable
expectation of privacy is assumed, it did not hold that Fourth
Amendment protections of property were no longer expected. The
cursory argument of the District Court in the immediate case did
not explore the property concerns implicated in the installation of
the device. However, the Court of Appeals correctly analyzed the
installation of the device under property rights before privacy
interests. Shealer v. United States, No. 11-0666 (4th Cir. May 11,
2011).
i.
The Respondent had a possessory interest in
the vehicle.
“Where the defendant offers sufficient evidence indicating
that he has permission of the owner to use the vehicle, the
defendant plainly has a reasonable expectation of privacy in the
29
vehicle . . . .” United States v. Rubio-Rivera, 917 F.2d 1271, 1275
(10th Cir. 1990). In other words, a person does not have to be the
owner of the vehicle in order to have a privacy interest in the
vehicle, just as a person does not have to be the owner of an
apartment in order to have an expectation of privacy. It is possible
to have a possessory interest in a place or item without having
ownership of the same. The facts of the present case concerning
ownership are muddled. Although they do not indicate how the car
came to be in the possession of the Respondent, there was no
challenge by the United States that the Respondent lacked
standing. Therefore, the Respondent had a possessory interest in
the vehicle.
ii.
The installation of the device was a seizure,
a meaningful interference with the
Respondent’s possessory interest.
“A ‘seizure’ of property occurs when there is some
meaningful interference with an individual's possessory interests in
that property.” Jacobsen at 113. While the courts have often
analyzed Fourth Amendment concerns under privacy expectations,
30
one does not lose property rights and interests simply because there
may be a lack of privacy. The protections of the Fourth
Amendment were extended to include occasions of privacy, but
this extension did not take away the initial protection of property.
“[A]n officer who happens to come across an individual's property
in a public area could seize it only if Fourth Amendment standards
are satisfied-for example, if the items are evidence of a crime or
contraband. Soldal v. Cook County, Ill., 506 U.S. 56, 68 (1992).
The Court held that even without privacy interests, “the Fourth
Amendment protects property as well as privacy.” Id. at 56.
For example, a person does not have a privacy interest in
the outward appearance of his house, for it is visible from the street
to anyone passing by. However, a passer-by does not have the
right to install a mechanical device on the house, because the
owner still possesses the right to exclude.
In the present case, the police installed a mechanical device
on private property. Even if there were no privacy interests in the
31
undercarriage of the car, the fact that a foreign object was installed
requires an analysis of Fourth Amendment protection.
iii.
The act of installing the device was at least a
trespass and at most a conversion of
property.
“[T]respass law extends to instances where the exercise of
the right to exclude vindicates no legitimate privacy interest.”
Oliver at 183. In Silverman v. United States, 365 U.S. 505, 509512 (1961), the Court held that trespass of a constitutionally
protected area (which could be established under property law or
privacy) for the purpose of obtaining information may be in
violation of the Fourth Amendment. In that case, the police
installed a device into the heating duct of a house that essentially
converted the duct into an amplifier of sound. The Court explained
that the trespass by the police was an important factor in their
decision, and distinguished the case from previous ones by stating
“in both Goldman and On Lee the Court took pains explicitly to
point out that the eavesdropping had not been accomplished by
means of an unauthorized physical encroachment within a
32
constitutionally protected area.” Silverman, 365 U.S. at 510. The
police had gathered their information “by usurping part of the
petitioners' house or office . . . without their knowledge and
without their consent.” Id. at 511.
The immediate case is also distinguishable, in terms of
seizure analysis, from both Knotts at 286 and United States v.
Karo, 468 U.S. 705, 711 (1984). In Knotts, police were tracking a
beeper they had installed in a can of chemicals owned by a friend
of the respondent. Through using the device, they were able to
track down Knotts. Knotts, 460 U.S. at 278, 279. The respondent
challenged the warrantless search, but not the seizure, assuming
that he had no standing to do so. The concurring opinion in Knotts
recognized that the Court would have more difficulty in reaching
their decision had the respondent challenged the installation of the
beeper into the can he had purchased. Id. at 286 (Brennan, J.,
concurring).
There were similar facts in Karo. The police used a beeper
in a can, but installed the device while it was still in the possession
33
of the DEA. The Court held that the beeper was installed in
property owned by the government, thus there was no Fourth
Amendment seizure. Karo, 468 U.S. at 711.
In the immediate case, there was physical intrusion on
property in the possession of the respondent. It was not owned by
the government before sale, and the respondent has standing
because of her possessory interest. The police committed an act of
trespass by installing the device on the respondent’s vehicle. The
Court stated in Knotts that “when the government does engage in
physical intrusion of a constitutionally protected area in order to
obtain information, that intrusion may constitute a violation of the
Fourth Amendment even if the same information could have been
obtained by other means.” Knotts, 460 U.S. at 286. An analysis of
Fourth Amendment protection based on the government’s trespass
is appropriate in this case.
Alternatively, the government has committed the tort of
conversion. The Second Restatement of Torts defines conversion
as “an intentional exercise of dominion or control over a chattel
34
which so seriously interferes with the right of another to control it
that the actor may justly be required to pay the other the full value
of the chattel.” Restatement (Second) of Torts § 222A (1965).
The courts have recognized that nominal damages will
suffice for the tort of conversion to have occurred and the Court of
Appeals for the District of Columbia has explained that “the theory
[behind conversion] is that the ‘converting’ defendant has in some
way treated the goods as if they were his own.” Pearson v. Dodd,
410 F.2d 701, 706-07 (D.C. Cir. 1969).
The concurring opinion in United States v. McIver, 186
F.3d 1119 (9th Cir. 1999) disagreed with the majority on the issue
of whether the warrantless installation of a device on the
undercarriage of a vehicle constituted a Fourth Amendment
violation. Judge Kleinfeld stated that the “installation of a
mechanical device on a vehicle in order to control the data the
vehicle transmits is an exercise of control . . .” Id. at 1133-34
(Kleinfeld, J. concurring). In other words, installing a GPS device
on a vehicle allows the government to control the type of data that
35
the vehicle is transmitting. Some citizens may choose to have this
data transmitted, and purchase smartphones with GPS capability
enabled or services such as OnStar. Nevertheless, the vehicle
possessed by the respondent did not have this capability, and it was
the respondent’s right to control whether the vehicles whereabouts
could be transmitted electronically.
The installation of the GPS device also interferes with the
value of the vehicle. The officer who installs it may damage the
vehicle, or it may be damaged in removal. Judge Kleinfeld also
noted that if there was an electrical short, this could pose serious
safety concerns because the heat may be emitted near the gasoline
tank. He also posed the interesting concern that the radio signals
from the GPS device may interfere with the automobiles electrical
system, just as “[a]nyone who boards an airplane is told to turn off
all Walkmans, CD players, and other devices upon takeoff and
landing because they may emit radio signals that would interfere
with safe operation of the airplane.” Id. at 1133-34. In addition,
the installation of the device would also affect resale value. A
36
consumer, given the choice of Car A – a vehicle that the police can
determine location for at any time, versus Car B – a vehicle
without that encumbrance, would most certainly choose Car B.
Installation of a mechanical device without a warrant or the
owner’s consent on the hood of a car would almost certainly be
seen as a trespass and may violate the Fourth Amendment. The
Court of Appeals did not alter this analysis simply because the
device was installed in a less obvious area on the vehicle. Just as
in Silverman and Katz, there was an encroachment on private
property, and the court was correct in holding that installation of a
GPS device usurps property in this case as well.
B. Even Without A Property Interest In The Vehicle, The
Respondent Had An Expectation Of Privacy In The Vehicle
She Was Using.
i.
The Respondent had a reasonable
expectation of privacy in the hidden areas of
the vehicle, and society is willing to
recognize this expectation as objectively
reasonable.
In Katz, the Court held that if a person has a legitimate
expectation of privacy in an area, they have the ability to claim the
37
protection of the Fourth Amendment. 389 U.S. at 353. The Court
applied this reasoning in Jones, and held that although Jones did
not have a legal property interest in certain premises, he did have a
legitimate expectation of privacy, and could therefore claim Fourth
Amendment protection. See Jones v. United States, 362 U.S. 257,
261 (1960). overruled on other grounds by United States v.
Salvucci, 448 U.S. 83 (1980).
“Although we have recognized that a motorist's privacy
interest in his vehicle is less substantial than in his home, the
former interest is nevertheless important and deserving of
constitutional protection.” Arizona v. Gant, 556 U.S. 332 (2009)
(internal citations omitted). There are parts of a vehicle that are
observable by the public, including the interior that can be seen
through the window. When one chooses to leave the home their
movements may be observed by others. However, “the exercise of
a desire to be mobile does not, of course, waive one's right to be
free of unreasonable government intrusion.” [I]nsofar as Fourth
Amendment protection extends to a motor vehicle, it is the right to
38
privacy that is the touchstone of our inquiry.” Cardwell v. Lewis,
417 U.S. 583, 591 (1974).
The test for using privacy concerns as a basis for Fourth
Amendment protection was set out in Justice Harlan’s concurrence
in Katz. First, the courts first ask whether the individual has shown
by his conduct that there is a subjective expectation of privacy.
Second, the courts will determine, “that the expectation [is] one
that society is prepared to recognize as ‘reasonable.’” Katz, 389
U.S. at 361 (Harlan, J., concurring). The one who is claiming the
privacy interest has the burden of showing that he established a
legitimate expectation of privacy in the area. United States v.
Thornley, 707 F.2d 622, 624 (1st Cir. 1983). If this condition is
met, and the court determines that society would also recognize the
area as private, an intrusion by the government without a warrant is
presumptively unconstitutional. United States v. Sparks, 750 F.
Supp. 2d 384, 388 (D. Mass. 2010)
The respondent had a reasonable expectation of privacy in
the undercarriage of her vehicle. In addition, society has also
39
come to expect privacy in vehicles. While a person may expect,
and even encourage, others to look at his car, this is not an
invitation to touch. “Owners of vehicles assiduously exclude
others from touching or altering the mechanical parts of their
vehicles without consent. American cities are cacophonous with
the noise of car alarms, because people arrange to be alerted if
anyone touches their cars. They do not like strangers touching their
cars.” McIver, 186 F.3d at 1133-34 (Kleinfled, Circuit Judge,
concurring).
An officer clearly has the right to observe objects in plain
view. The Court has held that “an individual's expectation of
privacy in a vehicle and its contents may not survive if probable
cause is given to believe that the vehicle is transporting
contraband” when a car had been searched. United States v. Ross,
456 U.S. 798, 823 (1982). The Court extended this view to
seizures in United States v. Jacobsen, and held “it is
constitutionally reasonable for law enforcement officials to seize
“effects” that cannot support a justifiable expectation of privacy
40
without a warrant, based on probable cause to believe they contain
contraband.” Jacobsen at 121-22.
Contraband was not an issue in the present case, and so the
court correctly considered a part of a vehicle that is hidden from
plain view deserving of an expectation of privacy. In the
immediate case, Maddox in his dissent argues that the trespass was
not a “great” invasion of privacy, and that the installation was
allowable because the officers had a “reasonable” suspicion.
These arguments are not correct. This Court has clearly stated that
officers must have probable cause to seize effects without a
warrant. Id. “[T]he plain-view cases clearly state that,
notwithstanding the absence of any interference with privacy,
seizures of effects that are not authorized by a warrant are
reasonable only because there is probable cause to associate the
property with criminal activity.” Soldal, 506 U.S. at 69 (emphasis
added).
Some of the few exceptions for the requirement of probable
cause include exigent circumstances, safety concerns, and frisking
41
for weapons. Payton v. New York, 445 U.S. 573, 573 (1980);
Terry at 38. The Court stated as well that “it is important, we
think, that this requirement (of probable cause) be strictly
enforced, for the standard set by the Constitution protects both the
officer and the citizen.” Terry, 392 U.S. at 38. There is no
indication in the facts that there was probable cause in the present
case. Regarding the second argument, it is a slippery slope to
begin to compare whether an invasion of an established private
area is “greater” or “lesser.” Once it has been determined that a
person has an expectation of privacy, a warrant is required. The
courts should not begin to determine whether a “little invasion” is
allowed under the Constitution. The installation of a hidden video
camera on the eave of a private house would be a minimal
intrusion as well, but the government does not have the right to
warrantlessly install one to monitor a citizen leaving their front
door. Likewise, just because a GPS device makes monitoring
easier does not take away the interference with constitutionallyprotected areas.
42
ii.
The Respondent did not intentionally expose
her undercarriage to the public.
It has been established that “[w]hat a person knowingly
exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection.” Katz, 389 U.S. at 351.
Other courts have held that some effort must be made by the one
claiming privacy to shield their car from the public. For example,
in Sparks the court reasoned that because “Sparks apparently took
no efforts to protect or shield his vehicle from passersby nor did he
otherwise demonstrate or allege any subjective expectation of
privacy” by covering it or keeping it in a garage, he did not meet
the first part of the privacy test and knowingly exposed his car to
the public. Sparks at 390. However, other courts have found that
“there is no way to protect against this type of intrusion once one
leaves home and enters the public streets.” It is probably
impossible to cover or lock the undercarriage of a car. Holmes at
864-65 on reh'g, 537 F.2d 227. Just because something is covered
partially is not a broadcast that there is no privacy expectation.
After all, women wear skirts every day. The respondent did not
43
intentionally announce by driving her car in public that officers
were free to install a foreign device on the undercarriage.
“[T]here is a ready criterion, with roots deep in the
common law, of the minimal expectation of privacy that exists, and
that is acknowledged to be reasonable. To withdraw protection of
this minimum expectation would be to permit police technology to
erode the privacy guaranteed by the Fourth Amendment.” Kyllo v.
United States, 533 U.S. 27, 34 (2001).
CONCLUSION
For the reasons stated in this brief, the Respondent, Ms.
Milly Shealer, respectfully requests this honorable Court to affirm
the order of the United States Court of Appeals for the Fourth
Circuit in that the Respondent’s conviction should be reversed
based on Fourth Amendment violations.
44