Professional Documents
Culture Documents
Tracking
“Bad Guys”
Legal Considerations
in Using GPS
By KEITH HODGES, J.D.
he ready availability this technology, officers must physically retrieving the log
July 2007 / 25
“
trafficking offenses. His trial
target of the order.9 It appears
will begin in a few months,
that Section 3117 will become
and he currently is held with
irrelevant except for the defini The quality of out bail. Several government
tion of a tracking device.10 information derived witnesses subpoenaed to testify
• Rule 41(b)(4) Authority to from these devices have reported to federal agents
Issue the Warrant: A mag and their relative that they believe they are being
istrate judge in the district simplicity make the harassed and threatened because
where the device will be use of GPS technology of their role in the upcoming
installed may issue a war attractive to law trial. Unknown individuals
rant to install a tracking enforcement. have vandalized the witness
device. The issuing magis es’ property. These incidents
”
trate judge may authorize have occurred at random occa
tracking in the district where sions and locations, including
the device will be installed, the witnesses’ homes and places
as well as any other district • Rule 41(f)(2) Return on of employment, the residences
in which it may travel. Warrant: Within 10 days of friends and relatives during
• Rule 41(e)(2)(B) Contents after use of the device has the witnesses’ visits, and the
of the Warrant: The warrant ended, the officer execut witnesses’ cars parked in pub
must contain the identity of ing the warrant must make lic places. In several instances,
the person or property to be the return to the magis weapons have been fired at
tracked and that of the mag trate judge specified in the homes where the witnesses live
istrate judge to whom the warrant. The return must or were visiting. Authorities
return on the warrant will be contain the exact dates and have tried to conduct surveil
made. It also must denote times of both installing lance, but all efforts have
a reasonable period of time the device and the period proved unsuccessful. Resources
July 2007 / 27
“
ue, could jeopardize the Smith likely alter the Fourth Amend
trial. ment analysis, as with vehicles
The agents have developed parked on public streets, given
four of Smith’s close associ Under federal no expectation of privacy exists
ates—Abbott, Brown, Chas evidence law, only the for those in parking lots15 or on
tain, and DeLorean—as likely original of a writing streets in gated communities.16
suspects. The evidence col may be admitted Because Brown has no expecta
lected to date does not amount unless certain tion of privacy for the exterior
to probable cause to believe that exceptions apply. of his car parked in a gated
these individuals have commit community, nothing prevents
”
ted offenses. The agents decide the agents from entering the
to leverage the tracking capa area to locate the vehicle.
bilities of GPS to compare the The fact that Brown keeps
timing and location of specific Tracking Abbott his automobile parked in his
future events with the move Abbott lives in a residen driveway makes warrantless
ment of the suspects’ vehicles. tial neighborhood and parks installation a closer call. Fed
Abbott lives in a suburban his automobile on the street, a eral cases support the position
development and usually parks public place where the agents that no expectation of privacy
his automobile on the street. can freely approach his car. occurs in the usual residential
Brown resides in a gated com Federal law clearly shows that driveway,17 but this determi
munity and parks his car in his although Abbott has an expecta nation always will depend on
driveway. Chastain regularly tion of privacy in the interior the driveway’s length, what
keeps his vehicle in the garage of his vehicle, he does not have measures the homeowner has
at his home. Technicians advise it for the car’s exterior.13 The taken to restrict the driveway
that they can accomplish the law allows the agents, without from public view and access,
GPS installations for Abbott, a warrant, to access Abbott’s and other considerations that
Brown, and Chastain without automobile to install a track officers should discuss with an
intruding into the automobiles. ing device on its exterior.14 If assistant U.S. attorney before
But, with DeLorean, who owns the agents need to get into his attempting a warrantless instal
a sports car, technicians advise car to install the equipment or lation. Obtaining a warrant or
that they cannot install a GPS to tie into the vehicle’s wiring, waiting for the vehicle to move
July 2007 / 29
“
change the law regarding when Garcia, 2007 U.S. App. LEXIS 2272 (7th
a warrant is required to install Cir., 2007). Officers used GPS, without a
warrant, to follow a suspect as he moved
or track. It only sets forth the ...first, they must lay
along public highways. The court held that
procedure to request and issue a a foundation with
following a car on a public street “is equiv
warrant if one is required. testimony about how
ocally not a search within the meaning of
When employing global GPS works, the details
”
placed on such surveillance when used in
reasonableness requirement. routine criminal enforcement are momen
Next, local, county, and state tous issues that fortunately we need not try
officers may not know whether to resolve in this case.” And, the reason
Endnotes the court did not reach the question in the
a state court will read the state 1
For an overview of GPS, access Garcia case was apparently because the
constitution to require a warrant
http://en.wikipedia.org/wiki/GPS. For ap police were not engaged in “mass surveil
even if the Fourth Amendment plicability to law enforcement, see John S. lance” and they had “abundant grounds for
and federal case law would Ganz, “It’s Already Public: Why Federal suspecting the defendant.”
not. In addition, warrants give Officers Should Not Need Warrants to Use 8
United States v. Knotts, 460 U.S. 276
officers flexibility in the event GPS Tracking Devices,” The Journal of (1983). State law may vary. See, California
Criminal Law and Criminology 95 (People v. Zichwic, 114 Cal. Rptr. 2d 733
that the initial plan to make
(Summer 2005). (Cal. Ct. App. 2001)) and Nevada (Osburn
a warrantless installation is 2
18 U.S.C. Section 2510. v. State, 44 P.3d 523 (Nev. 2002)). Some
thwarted. For example, when 3
18 U.S.C. Section 2510(12)(C). states require probable cause to install
July 2007 / 31
“
following tracking device did not amount v. Hammett, 236 F.3d 1054 (9th Cir. 2001),
to a search under the 4th Amendment.... cert. denied, 534 U.S. 866 (2001); Rog
Amended Rule 41(d) includes new lan ers v. Vicuna, 264 F.3d 1 (1st Cir. 2001);
guage on tracking devices.... The Supreme When employing United States v. Garcia, 997 F.2d 1273
Court has acknowledged that the standard global positioning (9th Cir. 1993); Maisano v. Welcher, 940
for installation of a tracking device is F.2d 499 (9th Cir. 1991), cert. denied sub
unresolved, and has reserved ruling on the
system devices, nom. Maisano v. IRS, 504 U.S. 916 (1992);
issue until it is squarely presented by the officers should use United States v. Smith, 783 F.2d 648 (6th
facts of a case. The amendment to Rule warrants whenever Cir. 1986); and United States v. Ventling,
41 does not resolve this issue or hold that possible for four 678 F.2d 63 (8th Cir. 1982). For an exhaus
such warrants may issue only on a show tive review of the law of driveways, see
ing of probable cause. Instead, it simply main reasons. Vanessa Rownaghi, “Driving Into Unrea
provides that if probable cause is shown, sonableness: The Driveway, The Curtilage,
”
the magistrate must issue the warrant. And and Reasonable Expectations of Privacy,”
the warrant is only needed if the device The American University Journal of Gen
is installed (for example, in the trunk of der, Social Policy and Law 11 (2003).
14 18
the defendant’s car) or monitored (for One federal district court judge has FED. R. EVID. 1002.
19
example, while the car is in the defendant’s agreed with a magistrate judge’s recom An original is the writing or record
garage) in an area in which the person mendation that reasonable suspicion is ing itself, a negative or print of a photo
being monitored has a reasonable expecta required before placing a GPS device on graph, or “if data are stored in a computer
tion of privacy.” Judicial Conference of the exterior of a vehicle located in or similar device, any printout or other
the United States, Report of the Advisory a public place. The author could find no output readable by sight, shown to reflect
Committee on Criminal Rules, May 17, other case in support of this conclusion. the data accurately.” FED. R. EVID. 1001(3).
20
2005, Committee Note, Rules App. D-34 The chances are, however, that this issue 363 F.3d 947 (9th Cir.), cert. denied,
(internal citation omitted). may not receive any further appellate 543 U.S. 950 (2004).
10
“As used in this section, the term review because the magistrate later con
‘tracking device’ means an electronic cluded and recommended that the federal The author thanks Senior Instructor
or mechanical device which permits the district court judge find that there was Jenna Solari, Federal Law Enforce
tracking of the movement of a person or not only reasonable suspicion but also ment Training Center, for her invalu
object.” 18 U.S.C. § 3117(b) (2006). probable cause (albeit no warrant) to able insight and suggestions.