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Attaching a GPS Locator System to a Car
Is It A “Search”?

By Andre A. Moenssens

Global Positioning Systems (GPS) are being used ever more in our nation and across the world. Law enforcement as well has a strong interest in the use of such devices in order to locate specific vehicles or to conduct surveillances electronically and surreptitiously. But is the use of such devices by police subject to the restrictions imposed on public authority by the Fourth Amendment? In light of the popularity of the devices, it is surprising that the case law dealing with it is sparse.

The question asked by the title of this article is difficult to answer with any degree of precision. We have been unable to discover any United States Supreme Court decision that answers the question authoritatively, though a number of the Court's precedents can perhaps be utilized to frame the legal controversy and aid in its exploration. There are a few cases in state and federal trial courts that have been asked to resolve the constitutional issues involved. Unfortunately, these decisions did not necessarily produce a uniform outcome. What's more, the various circumstances in which GPS devices can be used allow for different legal approaches depending on the precise facts of the cases.

In this article, we will first explore what GPS is and how it works. We will then examine the constitutional framework in which the problems need to be analyzed, and, thereafter, we will examine some lower court cases that have looked at the specific problem posed.

WHAT IS A “GPS”?

Many different types of GPS devices have been developed in recent years. A variety of systems are designed to work in different locales and to solve different problems. Reduced to its simplest terms, a GPS is a satellite-based navigation system. Though it has civilian uses, it was developed by the Department of Defense for use by the military. It consists of three different components: a space segment, a control segment, and a user segment.

The space segment is comprised of a minimum of 24 geo-synchronous satellites [repeating the same orbital track and configuration over any point on earth in slightly less than 24 hours]. According to the University of Colorado's geography department, the satellites orbit the earth in six orbital planes, with nominally four satellites in each that are equally spaced (60 degrees apart) and are inclined at about 55 degrees with respect to the equatorial plane. At any time, the aggregate of this space segment provides any user with between five and eight satellites visible from any point on earth. These satellites continuously transmit signals from space.

The second part of the GPS system is the control segment, the primary of which is located at Schriever Air Force Base in Colorado. This master control facility (and other monitoring stations) measure signals coming from the satellites, which are then incorporated into orbital models for each satellite. The stations measure precise orbital data (ephemeris) and determine satellite clock corrections for each satellite, which data is then uploaded (sent back) to the satellites so that they in turn can sent back subsets of the data to GPS receivers by radio signals.

The third part of the system is the GPS user segment. GPS receivers convert data received from the satellite systems into position, velocity, and time estimates. Four satellites are required to compute the four dimensions of position and time. Ignoring for our purposes the uses of geo-synchronous satellites in astronomy, in earth's plate tectonic movement studies, and other highly specific scientific research endeavors, we will concentrate primarily on the type of device used for pinpointing the location of vehicles. Depending on the sophistication of a particular GPS receiving device, it may permit pinpointing the location of a particular unit within a few inches in three miles to less specific parameters. [For a more detailed technical explanation of GPS technology, the reader can consult the pages detailing how the system works at the University of Colorado geography department's website at http://www.colorado.edu/geography/gcraft/notes/ gps/gps_stoc.html.]

Other than to locate vehicles, GPS can also be used in personal tracking by use of the so-called “ankle bracelets” that have become generally known to the public when, after Martha Stewart's trial, conviction and subsequent release on probation, she was required to wear an ankle bracelet so that her location could be automatically determined. Other civil uses of GPS permit municipal engineering departments to use control points established by GPS in a particular municipality to produce maps for utility information, zone information, soil data, and a variety of municipal inspection devices.

The satellite system can be coupled with map data contained on a CD-ROM or hard drive. Many newer brands of automobiles today come equipped with a GPS device that will permit the driver to know where he or she is, how to get to a particular address, or how to summon assistance in the case of road emergencies. The navigation system splits the United States into nine regions. There are CD-ROMs available for each region.

If the device has not been disabled by thieves, the GPS device is obviously also useful in locating stolen vehicles. Indeed, in some states owners of vehicles equipped with GPS can get a substantial discount on auto insurance rates.

The system we are interested in here is that in which GPS is used for automatic vehicle location to permit law enforcement to determine where an automobile to which a device has been attached is located and in which direction it is traveling. If coupled with a GPS logger, a record can also be maintained of where the vehicle has been in the past.

WHAT ARE THE CONSTITUTIONAL CONCERNS?

Since there are no United States Supreme Court cases directly answering the question posed by this article, we must consider the broad constitutional framework in which the applicability of the Fourth Amendment to police use of GPS locators must be decided. We start this process by considering the scope and breadth of the protection against unreasonable searches and seizures as applied particularly to automobile searches.

In the early case of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967), the Court rejected the old common law view that the Fourth Amendment only prohibited police trespasses against personal or real property of a defendant and did not prohibit the interception of speech. The Katz Court extended the amendment's reach to the warrantless interception of communications. In Katz, that interception had occurred when FBI agents placed a transmitting device on top of a glass-enclosed public telephone booth - a device that has all but disappeared from today's American landscape - so that they could listen, some distance away, to the defendant's side of a conversation after he entered the booth and placed a call to an unknown person. The Court indicated that the amendment protects people, not places, and that it protects people from any warrantless seizure by the police as long as the citizens are in places where they have a reasonable expectation of privacy.

In later case law, the Court amplified Katz by stating that the constitutional protection would apply only if the citizens' expectation of privacy was “reasonable”- meaning essentially that it had to be an expectation which the Supreme Court felt modern society was willing to recognize as valid.

We have seen many examples in the Court's subsequent decisions where subjective expectations of defendants were not considered protected by society's values. For instance, courts do not believe that an expectation of an individual that his trash left at the curb for collection by the garbage collectors will remain inviolate is reasonable. Thus, a police search of opaque plastic bags of garbage left out for collection does not violate the Fourth Amendment, the Court said in California v. Greenwood, 486 U.S. 35. There is also no expectation of privacy in the observation of evidence that is in plain view. In Oliver v. United States, 466 U.S. 170 (1984), the Court held that there was no reasonable expectation of privacy in “open fields”- any land that is not attached to the curtilage of a home. A police entry upon such fields is free from any Fourth Amendment restraints, even if officers must enter the fields by committing a trespass onto posted private property.

The Supreme Court cases that come the closest to answering our specific inquiry are United States v. Knotts, 460 U.S. 276, 103 S.Ct 1081 (1983), involving a “beeper” - a battery operated radio transmitter - attached to a piece of merchandise loaded into the defendant's car, and the more recent case of Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038 (2001), involving he use of a thermal imager to scan a home to detect whether the heat emitted could have come from the use of high-intensity heat lamps used in the indoor cultivation of marijuana. Let's take them in order.

THE KNOTTS “BEEPER” CASE

In Knotts, defendant was suspected of operating an illicit drug lab. Police knew that Knotts wanted to purchase a container of chloroform, a chemical used in the manufacture illicit drugs. Reaching he supplier before Knotts could arrive there, the police installed a battery-operated radio transmitter, popularly called a “beeper,” into a five-gallon drum of chloroform while the drum was still in the possession of the seller. Knotts' co-defendant purchased the drum, placed it in his car, and drove away. Police followed the accomplice's car until it reached Knotts' remote rural cabin. They used a combination of visual surveillance and monitoring the beeper signal emitted from the automobile when visual contact was temporarily lost. Based on these observations, a search warrant was obtained for Knotts' cabin, where an illicit drug laboratory was discovered.

The Knotts court held that monitoring the vehicle while it was on the public streets was permissible because the defendant “had no reasonable expectation of privacy in his movements from one place to another” using the public roads. Since the device had been inserted before the drum came in the possession of the conspirators, no trespass to their effects had occurred when the device was installed. The Court said:

“Visual surveillance from public places . . . [en] route or adjoining Knotts' premises would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but on the use of the beeper to signal the presence of [co-defendant's] automobile to the police receiver, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.”

Knotts had also argued that if police were permitted to use the beeper, “twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision.” The Court rejected this argument by stating that this was perhaps something to be argued in a future case “if such dragnet type law enforcement practices . . . should eventually occur.”

That “future case” was not long in coming. A case much like Knotts came before the Court two years later when a second “beeper” case - United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296 (1984) - was decided. Here, the Supreme Court was asked whether the warrantless monitoring would involve Fourth Amendment concerns if it revealed information that could not have been observed through visual surveillance. The Court in Karo stated that if the beeper permitted the police to learn information about the content of a home that could not have been obtained through visual surveillance, the constitutional protection would be involved.

The Karo surveillance had been started after the beeper was installed in a drum of ether expected to be purchased by the defendant for use in the manufacture of illicit drugs. The car in which the drum was loaded was then followed to a storage facility. Thereafter, surveillance was stopped and resumed at intervals to determine whether the drum with the beeper was still there. When beeper signals were no longer detected at the storage facility, police proceeded to Karo's home, where they were able to pick up the beeper signal again. The Court said that even if the drum had been followed visually to Karo's house, “the later monitoring not only verifies the officers' observations but also establishes that the article remains on the premises.” [Our emphasis.] Since the presence of the contraband could not be determined from a visual surveillance of the outside of the home, a warrant was required.

THE THERMAL IMAGING CASE

The Kyllo case, referenced earlier, is of more recent vintage. In an age of ever advancing technology, the Kyllo opinion, while unremarkable on its specific facts, gives us a little insight in how the Supreme Court thinks about “Star Wars”-type of intrusive techniques by which it is possible to perceive what happens inside a home without actually entering the dwelling.

Federal agents, suspecting that marijuana was being grown inside Kyllo's Oregon home-part of a triplex-sought to prove that fact by the use of modern technology. In this case, it was an Agema Thermovision 210 thermal imager. The agents knew that the indoor cultivation of marijuana was usually accomplished by the use of high-intensity lamps. Such use tends to build up heat inside the dwelling. The heat build-up emits infrared radiation which police sought to measure by scanning the roof of the house with the electronic imaging device. In describing the device, the Court said: “The imager converts radiation into images based on relative warmth - black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images.”

It only took a few minutes to take the heat measurement from an automobile located across the street and also from behind the building. As the Court observed: “The scan showed that the roof over the garage and side wall of [Kyllo's] house were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex.” After obtaining a search warrant based, in part, on these heat measurements, supplemented by utility bills and some informant information, the agents found an indoor growing operation involving more than 100 plants.

Strangely, when the case went first to the Ninth Circuit Court of Appeals - a court that is recognized as being very liberal -- that tribunal nevertheless decided that Kyllo had not manifested a subjective expectation of privacy with respect to the heat emitted by his halide high-intensity lamps, “because he had made no attempt to conceal the heat from escaping from his home.” Even if he had such an expectation of privacy, the court said it was not one which society would recognize as reasonable because the thermal imaging didn't expose anything private about Kyllo's life and only showed “amorphous hot spots on the roof and exterior wall.”

A CONSERVATIVE SUPREME COURT REVERSES

The ordinarily more conservative United States Supreme Court's majority took the opposite view. The opinion started by a significant observation, not found in earlier cases of the Court, in which it recognized that advancing technology is putting serious strains on the public's expectations of privacy, and asked what limits there were “upon the power of technology to shrink the realm of guaranteed privacy.” In rejecting the “mechanical interpretation” of the Fourth Amendment by permitting law enforcement to use advanced technology without a warrant unless there had been a physical invasion of one's home, the Court observed that such a diminishing of our expectations of privacy “would leave the homeowner at the mercy of advancing technology-including imaging technology that would discern all human activity in the home” without entering it. The Court observed that while the technique used in the Kyllo case was “relatively crude,” it also stressed that “the rule we adopt must take account of more sophisticated systems that are already in use or in development.” [Our emphasis.]

Advancing technology has moved much further than the public realizes. A footnote in the Court's opinion recognized that the ability to “see” through solid walls is the aim of law enforcement research and development, and the Court deemed such R&D to be “scientifically feasible.” All of these considerations led the Court to conclude that, like in the case of even more sophisticated intrusion devices, the “hi-tech measurement of emanations from a house” as used in Kyllo was a “search” within the meaning of the Fourth Amendment. Prior to its use, therefore, a warrant was required unless the warrant was excused under one of the recognized exceptions to the warrant

The opinion is all the more remarkable because of the odd lineup of the Justices: Justices Scalia and Thomas, usually on the side of law enforcement, sided with the defendant in this case. They were joined by Justices Souter, Ginsburg, and Breyer. The author of the dissenting opinion disagreeing with the majority view and supporting law enforcement was Justice Stevens - considered the most liberal of the Court and one who usually favors the individual's rights. He was joined in dissent by Justices O'Connor (currently retired), Kennedy, and the late Chief Justice Rehnquist. Strange bedfellows, indeed!

HOW DOES THIS OVERVIEW AFFECT GPS?

A look at lower court cases . . .

Since the cases do not truly involve GPS devices, we will use them as the backdrop for discussing a few lower court decisions directly involving the installation of GPS devices. Perhaps the most recent one is the case of State of Washington v. William Bradley Jackson, 150 Wash. 2d 251, 76 P.3d 217, decided by the Supreme Court of Washington on September 11, 2003. It is a “true” GPS case and held that the placing of such a device on defendant's impounded vehicles, whereby these vehicles could be tracked by satellite, did involve a search and seizure under Washington's state constitution, and therefore required a warrant. But because there actually had been three different warrants obtained in the case, the court found no constitutional violation and affirmed the conviction and sentence of defendant.

The case came to the attention of authorities when Jackson called 911, one morning, to report that his nine-year-old daughter Valiree was missing from his home in the Spokane Valley. What happened next is described in detail in the court's opinion: “Immediately, volunteers joined sheriff's personnel and canine units in a thorough search of the neighborhood. Deputy Scott Nelson arrived at the Jackson residence, where Valiree had lived with his parents the previous seven months. Nelson interviewed Jackson's mother, who said she kissed a sleeping Valiree good-bye as she left for work a little before 4:30 that morning. Jackson said he had last seen Valiree at 8:15 a.m. in the front yard. Her backpack was on the front porch.

“Detective Madsen, who also responded, saw bloodstains on Valiree's pillow and faded blood on the bed sheet. Jackson explained that Valiree had a nose bleed the night before, but Madsen saw nothing used to stop a nosebleed. Madsen took the bedding for analysis. Detectives soon believed that Jackson had something to do with his daughter's disappearance. They informed him of their suspicion that he may have removed Valiree from the home.

“On October 23, 1999 [five days after Jackson had made the 911 call - Editor], police obtained a warrant to search the residence and impound and search Jackson's two vehicles, a 1995 Ford pickup and a 1985 Honda Accord (warrant #1). On October 26, Detective Knechtel obtained a 10-day warrant (warrant #2) to attach GPS devices to the two vehicles while they were still impounded. The devices were connected to the vehicles' 12-volt electrical systems. Use of the GPS devices allowed the vehicles' positions to be precisely tracked when data from the devices was downloaded. The vehicles were returned to Jackson but he was not informed about installment of the devices. Detective Madsen did inform Jackson that the police believed he had hastily buried Valiree's body, that animals would likely dig her up, and that the body would be found and used as evidence against him. Knechtel obtained a second 10-day warrant to maintain the GPS devices on the vehicles (warrant #3).

SUSPICIOUS TRAVELS NOTED

“Data from the GPS device on the truck showed that on November 6, 1999, Jackson drove to his storage unit and then to a remote location on a logging road, the Springdale site, where the truck was motionless for about 45 minutes. Data showed that on November 10, 1999, Jackson made a trip to another remote location (the Vicari site) where he remained about 16 minutes, and then traveled to the Springdale site where the truck remained stopped for about 30 minutes, then left and stopped several other places, including the storage unit. Investigators discovered Valiree's body in a shallow grave at the Springdale site, and found evidence at the Vicari site (two plastic bags with duct tape containing hair and blood - the duct tape edge matched duct tape later found at Jackson's residence in a search pursuant to another warrant).

“On November 13, 1999, after stopping at his storage unit, Jackson borrowed his neighbor's truck, telling the neighbor he had a job to finish. He borrowed the truck, he said, because he suspected he was being followed. Hunters near the Springdale site saw him in a pickup truck close to the Springdale grave site. When Jackson returned the truck, he left a shovel in it.”

That was all police needed to make the arrest. While being detained, Jackson wrote his parents, claiming that his new hunting buddy “Craig” might well have kidnaped Valiree, but he would later admit that he made up this story. By the time of trial, he claimed that Valiree had overdosed on a prescription antidepressant prescribed for her by her counselor. He said he thought the police would blame him for the death since he had been a suspect in the as yet unsolved 1992 disappearance of Valiree's mother, and he therefore panicked and buried the body. The medical evidence was that Valiree had died from suffocation. The State also presented “substantial” evidence that the reason Jackson killed Valiree was because she stood in his way to his reuniting with his former girlfriend, whom Valiree had disliked.

INTERMEDIATE APPEALS COURT'S DECISION

After Jackson was convicted, he appealed and the Court of Appeals affirmed. It held, however, that the warrants which police had obtained were unnecessary under the state constitution in that the placing of the GPS devices did not amount to a “search.” Therefore, it did not consider the defendant's argument that there was no probable cause for the issuance of the warrants. That was an issue on which the state supreme court focused when it agreed to review the case.

The Washington constitutional prohibition against unreasonable searches and seizures had been interpreted locally as providing broader rights to is citizens than those guaranteed under the federal constitution. Other states have so held as well. This means that a state - such as Illinois which interprets its state search and seizure constitutional protection according to the United States Supreme Court's view of the scope of the Fourth Amendment - might not come to the same conclusion. Yet, the court was forced to explore the issue whether advanced technology permitting intrusion into one's privacy leads to a diminished subjective expectation of privacy. This, in turn, raises the issue whether warrantless use of that technology violates either the state or the federal constitution.

In addressing that issue, the court rejected the intermediate appeals court's finding that merely because the devices were installed while the police had impounded the vehicles, a warrant was not required. Holding that a warrant was indeed required, the court cited with approval the holding of the Florida Court of Appeals in Johnson v. State, 492 So.2d 693 (Fla. App. 1986). In Johnson, a tracking device had been installed on an airplane pursuant to a warrant that authorized the device's installation “upon or under” the aircraft. Police had also installed a second device inside the tail section of the plane - a precaution which assisted it in obtaining the necessary tracking information after the first device failed. The Florida court found the installation of the second device to be “tantamount to an illegal entry and beyond the scope of the warrant.” It suppressed use of the evidence this obtained.

The first warrant in Jackson's case authorized a search of the vehicles “for blood, hair, body fluids, fibers and other evidence relevant to Valiree's disappearance.” That warrant did not authorize installation of GPS devices, and installation was clearly in excess of the scope of the original search warrant. But the Court of Appeals had held that the GPS devices were “merely sense augmenting, revealing information that Jackson exposed to the public view.” It said that law enforcement officers could legally follow Jackson on his travels to the storage facility and the two grave sites. Thus, so the appeals court concluded, use of the GPS devices to monitor defendant's travels was the same as following him on the public roads where he had voluntarily exposed himself to public view. The state supreme court did not accept that rationale. It said:

WASHINGTON SUPREME COURT'S RATIONALE

“[W]hen a GPS device is attached to a vehicle, law enforcement officers do not in fact follow the vehicle. Thus, unlike binoculars or a flashlight, the GPS device does not merely augment the officers' senses, but rather provides a technological substitute for traditional visual tracking. Further, the devices in this case were in place for approximately two and one-half weeks. It is unlikely that the sheriff's department could have successfully maintained uninterrupted 24-hour surveillance throughout this time by following Jackson.”

The court saw the 24-hour a day operating tracking device as being of a very different nature than maintaining visual surveillance or using binoculars or a flashlight to augment one's senses. The court was also disturbed by the extent of the information GPS tracking could disclose about an individual's affairs:

“For example, the device can provide a detailed record of travel to doctors' offices, banks, gambling casinos, tanning salons, places of worship, political party meetings, bars, grocery stores, exercise gyms, places where children are dropped off for school, play, or day care, the upper scale restaurant and the fast food restaurant, the strip club, the opera, the baseball game, the 'wrong' side of town, the family planning clinic, the labor rally. In this age, vehicles are used to take people to a vast number of places that can reveal preferences, alignments, associations, personal ails and foibles. The GPS tracking devices record all of these travels, and thus can provide a detailed picture of one's life.”

Later on in its opinion, the court suggested: “If police are not required to obtain a warrant . . . before attaching a GPS device to a citizen's vehicle, then there is no limitation on the State's use of these devices on any person's vehicle, whether criminal activity is suspected or not. The resulting trespass into private affairs of Washington citizens is precisely what article I, section 7 was intended to prevent. It should be recalled that one aspect of the infrared thermal imaging surveillance in [Kyllo v. United States] was the fact that if its use did not require a warrant, there would be no limitation on the government's ability to use it on any private residence, at any time . . .

“As with infrared thermal imaging surveillance, use of GPS tracking devices is a particularly intrusive method of surveillance, making it possible to acquire an enormous amount of personal information about the citizen under circumstances where the individual is unaware that every single vehicle trip taken and the duration of every single stop may be recorded by the government.”

Having held that warrants were required, the court had next to address whether there was sufficient evidence known to the officers to satisfy the probable cause requirement. After reiterating the basic warrant requirements that state and federal constitutions impose on the issuance of warrants, the court considered the sufficiency of the affidavits in this case:

“The affidavit in support of issuance of the initial warrant for the GPS devices included the following: Bloodstains were found on Valiree's pillow and sheet. More than one red public hair was found in her sheets, and both she and Jackson have red hair. Her family physician had advised the detective that Valiree had not reached puberty and to his knowledge did not have public hair. The affidavit said that this suggested the possibility the father was donor of the hair and the possibility of some kind of sexual misconduct or assault. Valiree had been taught by her grandmother to scream if threatened, but no screams were heard. Her backpack was found on the front porch of the residence. The house and neighborhood had been thoroughly searched. No one else saw the child between 4:30 a.m. and 8:30 a.m., and there was some evidence she had been missing only a half hour. Mr. Jackson was the only person at the home and he had access to two vehicles. . . .

“In light of the thorough search of the residence and neighborhood, a reasonable person could infer that Valiree had been removed, likely in a vehicle. Since no screams were heard, an inference could be drawn that Valiree might have been killed or that she was either incapacitated or removed by someone she trusted. Given the limited time frame, it could also be inferred that there was insufficient time to hide her or her body or other incriminating evidence. Further, if she was alive, or alive and incapacitated, the abductor would need to assure she would not escape and to provide for her basic needs. The presence of red public hair when her physician had advised that she had not reached puberty suggests the possibility of sexual assault or an attempt, possibly by Jackson, who has red hair. Jackson was the only one present at the residence, and it would be reasonable to infer that he had something to do with Valiree's disappearance given all the facts and circumstances.

“We conclude that the affidavits set forth sufficient facts and circumstances for a reasonable person to infer that Jackson was probably involved in a crime and that installation of the GPS devices would lead to evidence of that crime, i.e., that Jackson might use a vehicle to travel to provide for Valiree's needs since it was reasonable to infer that she might still be alive. And, assuming she was dead, it was reasonable to infer that Jackson would use a vehicle to drive to her location to thoroughly hide the body and dispose of evidence, given the limited time that would have been available to Jackson the morning Valiree disappeared.“

After dismissing several other arguments raised by defendant in support of his contention the warrants were invalid, the court held that the affidavits contained sufficient facts to satisfy the constitutional probable cause requirement. The justices of the Washington Supreme Court similarly dismissed other defense arguments unrelated to the search and seizure issue and unanimously affirmed the conviction and sentence.

It must be stressed, again, that the Jackson case was not decided on federal constitutional grounds - indeed, defendant Jackson had not raised a Fourth Amendment issue - but strictly on the state protection against unreasonable searches and seizures. Other than the specific statement that Washington interpreted its constitution more broadly than do the federal courts, the rationale adopted and the arguments used in the case follow pretty well the standard federal constitutional cases.

IS JACKSON PREDICTIVE OF FEDERAL LAW?

Since the Washington court specifically based its decision on state constitutional law, which has been interpreted as offering a greater protection to individuals than that guaranteed by the Fourth Amendment, we must guess at the ruling's applicability in other states and in the federal system.

OTHER DECISIONS EXPLORED . . .

A few decisions in point may give us some idea on how other jurisdictions handle the issue. Two cases from New York are particularly illustrative of the problems involved, since both reached differing conclusions. In People v. Richard Lacey, 787 N.Y.S.2d 680, 3 Misc.3d 1103 (Table), 2004 WL 1040676 (N.Y.Co.Ct.), a case of first impression for New York, police developed some suspicion that a woman who lived in Queens owned a Mitsubishi vehicle licensed in Tennessee and that two suspected burglars had been seen leaving the scene of a burglary in the car. Nassau County police affixed a GPS device equipped with a cellular modem for real-time tracking to the undercarriage of the Mitsubishi with magnets. As the court recognized:

“This particular system locates the vehicle by giving the latitude and longitude of the GPS at any point in time, accomplishing [it] through a computer/satellite link incorporating a cellular modem and software compatible with the tracking device. The computer not only tracks where the GPS is but also where it has been. The GPS used herein was self contained and powered by batteries and did not rely on the mechanical or electrical systems of the vehicle. All visual surveillance and real-time computer tracking occurred only between Monday and Friday since that was the pattern of the burglaries.”

DEFENDANT DROVE THE MITSUBISHI

This surveillance ultimately lead the police to suspect Richard Lacey who owned a white Toyota 4-Runner. Lacey had prior arrests for burglary and was currently on probation. Lacey was later seen driving the Mitsubishi and followed to a location where a radio report indicated a burglary had occurred. An eyewitness gave a description of the burglar; it matched Lacey's appearance. When Lacey saw police approaching him, he was carrying a black satchel and ran away. He was unable to get very far and was arrested. While Lacey had thrown away the black satchel while running from the police, the sack was recovered and found to contain the suspected proceeds of several burglaries.

All of the physical evidence found at the time of arrest, and his admission that he drove the Mitsubishi vehicle that belonged to his girlfriend, was illegally obtained, so Lacey argued, because it resulted from the police use of a GPS device without a search warrant. That was the precise issue before the court, an issue that New York courts had never before faced. The court looked at decisions in other jurisdictions. Predictably, the Jackson case handed down by the Washington Supreme Court was the first precedent the court explored. It cited the case with apparent approval without mention that the state supreme court had handed down its decision relying on the state constitution.

The next case explored was State v. Campbell, 306 Or. 157, 759 P.2d 1040, wherein the Oregon court held that a warrant was required under its state constitutional protection against warrantless searches and seizures prior to the installation of a GPS device on a suspect's vehicle. The Oregon court reportedly stated that the right of privacy was “an interest in freedom from particular forms of scrutiny” and that the installation of a GPS device was “a significant limitation on freedom from scrutiny” and “a staggering limitation on personal freedom.

In Johnson v, State, 492 So.2d 693 (Fla), a warrant was issued permitting a single tracking device to be installed on an airplane: “The police not only installed this device, but a second backup device in case the first failed. The inevitable occurred when the first device failed and the second was used. The court suppressed the evidence obtained through the second device, holding that its installation was tantamount to an illegal entry and beyond the scope of the warrant.

The next case cited was State v. Clifton, 158 N.C.App. 88, 580 S.E.2d 40, wherein the court reached a different result and affirmed the conviction of a defendant for obtaining property by false pretenses. Defendant had purchased a Chevrolet Suburban equipped with a GPS system, using counterfeit certified checks as payment. The court said that the GPS system used to track and locate the vehicle was installed by the manufacturer and therefore no search and seizure violation had occurred in its installation.

In a similar decision, the Georgia court in Whitehead v. State, 258 Ga.App., 271, 574 S.E.2d 351, also upheld the conviction where the defendant had been driving a confidential informant's car, wherein police had installed a GPS device with the consent of the informant. No constitutional violation was involved.

A FEDERAL APPEALS COURT DIFFERS

The Lacey court relied also on a number of federal trial court decisions, out of districts in Ohio, Maryland and Montana, as well as on the federal appellate court decision in United States v. McIver, 186 F.3d 1119 (9th Cir.) wherein governmental agents had placed a magnetized GPS device and a magnetized beeper transmitter on the undercarriage of defendant's truck while it was parked in his driveway. Surprisingly, the almost always liberal 9th Circuit Court of Appeals affirmed the conviction on the ground that the defendant did not have an expectation of privacy in the undercarriage of his truck, and the defendant had not demonstrated “that he intended to shield the undercarriage from inspection by others. The court further held that the placement of the GPS/beeper was not a seizure within the meaning of the Fourth Amendment as it had not been shown that the device deprived defendant of dominion and control over his vehicle. Even the entry upon defendant's driveway to install the device was held not to invade the defendant's legitimate expectation of privacy since the driveway was open to observation by persons passing by and was not enclosed by a fence or a gate. Disagreeing with the result, one circuit court judge stated that the installation of tracking devices on automobiles and airplanes is subject to Fourth Amendment analysis as a seizure.

In the Maryland district court case of United States v. Berry, 300 F.Supp.2d 366 (U.S.D.C.[Md]), the trial judge stated that where the placing of the GPS device occurred pursuant to a warrant, the proceeds were seized legitimately, but of particular interest is footnote 2 wherein the court stated, “The police may be guilty of a trespass when they install a beeper, but the [United States] Supreme Court has held that the commission of a trespass, without more, does not violate the Fourth Amendment.”

Within the framework of these cases, the Lacey court now had to decide how to apply constitutional principles to the facts before it. It found that both the Fourth Amendment and the state constitutional clause which protects a person from a warrantless search of his effects extends to the attaching of a GPS tracking device to his vehicle. “Simply” the court said, “this amounts to a search and seizure.” The court added:

“The citizens of New York have the right to be free in their property, especially in light of technological advances which have and continue to diminish this privacy. Moreover, the GPS used herein incorporated cellular technology. . . . While the telegraph has become a relic of the past, cellular technology has become the future. At this time, more than ever, individuals must be given the constitutional protections necessary to their continued unfettered freedom from a 'big brother' society. Other than in the most exigent circumstances, a person must feel secure that his or her every movement will not be tracked except upon a warrant based on probable cause establishing that such person has been or is about to commit a crime. Technology cannot abrogate our constitutional protections.”

Interestingly, while finding that the placing of a GPS device is subject to Fourth Amendment requirements, the court affirmed the conviction because it found that Lacey had no standing to raise the Fourth Amendment issue since he was driving his girlfriend's Mitsubishi! He had no reasonable expectation of privacy in someone else's vehicle, said the court, citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421 (1978), and a slew of federal as well as New York state cases. If his girlfriend, Misha Morton, had been the defendant in this case, she would possess standing and the court would have been constrained to suppress, as to her alone, the evidence seized because police had failed to obtain a warrant prior to installing the GPS on her Mitsubishi car.

OTHER NEW YORK TRIAL COURT DIFFERS

In a different case tried in Westchester County, New York, the trial court held that police officers' attaching a global positioning system to defendant's car did not constitute a search or seizure and thus did not require a warrant. The case is People v. Charles Gant, 2005 WL 1767655 (N.Y.Co.Ct. [Westchester County], 2005). In moving to suppress the evidence, defendant Charles Gant had relied on the Lacey decision handed down in a different county court. Here, Gant claimed to be the owner of the R.V. vehicle to which the GPS device had been attached, and therefore claimed “standing” to raise the issue. Nevertheless, the court found that defendant failed to establish a legitimate expectation of privacy in the place or property searched sufficient to satisfy the Fourth Amendment standing requirement for purposes of a motion to suppress.

The trial judge reached this decision relying on the Knotts United States Supreme Court case, supra, wherein the Court had held that the monitoring of a beeper placed in a container in defendant's vehicle was not a search and seizure within the meaning of the Fourth Amendment since defendant had no reasonable expectation of privacy in the monitoring of the vehicle on public streets and thoroughfares. The [Knotts] Court stated that the surveillance conducted amounted to the following of an automobile on public streets and highways and that there is a diminished expectation of privacy with regard to automobiles. The trial court found support in a recent federal district court decision coming to the same conclusion (United States v. Moran, 349 F.Supp.2d 425 [N.Y.N.Y. 2005].)

The Gant court concluded: “In short, New York decisional law . . . leads to the inescapable conclusion that there is no reasonable expectation of privacy in the movements of a motor vehicle traveling upon public roadways such that law enforcement is required to obtain a warrant . . . prior to installing a GPS device when investigating crime.”

Until the United States Supreme Court renders a decision in point, it is impossible to state authoritatively how the federal constitutional question is to be decided.