BB&K Police Bulletin: GPS “Ping” - No Fourth Amendment Violation When GPS on Stolen Cell Phone Locates Thief

by Best Best & Krieger LLP
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Overview: A California Appellate Court recently found no Fourth Amendment violation where police used the Global Positioning System (GPS) on a stolen cell phone to locate and detain the thief. The court reasoned that the defendant had no reasonable expectation of privacy in property that he had stolen at gunpoint. The only legitimate rights belonged to the owner who had allowed Sprint to “ping” her phone’s movement so that police could follow the signal and apprehend the suspect. Under the circumstances of this case, the use of an electronic tracking device also complied with California Penal Code Section 637.7 (use of electronic tracking devices) because the owner had consented to its use.

Training Points: This case suggests that imbedded GPS technology—with consent of the owner and without a warrant—can be used to locate stolen property without concern for later admissibility. A thief does not have a reasonable “expectation of privacy” in stolen property. Officers have another tool for tracking down stolen items equipped with GPS technology as long as they obtain consent from the owner. Although this case pertains to mobile phones specifically, the rationale may extend to other stolen items with GPS-enabled tracking systems such as computers, vehicles, equipment, etc. As always, officers are encouraged to work with legal counsel to determine the instances where this case could apply. Officers should proceed with caution when a tracking system leads to stolen equipment and not assume that everything obtained from that point forward is admissible.

Summary Analysis: In People v. Barnes, Lorenzo Barnes held up two pedestrians at gunpoint and demanded their belongings. Barnes obtained the purse of a female victim and fled. The purse contained a smartphone with GPS. At the police station, the victim signed a release allowing Sprint to “ping” the phone’s location and track down Barnes. Barnes was convicted of robbery and being a felon in possession of a firearm. He argued that the use of GPS violated his personal privacy rights. The court disagreed, finding that Barnes had no reasonable expectation of privacy in the stolen phone. As the actual owner, only the victim had legitimate privacy rights and she had agreed to use her phone to find Barnes. California Penal Code Section 637.7 permitted the use of an electronic tracking device with the consent of the registered owner or lessee, or when lawfully employed by police. Thus, the warrantless search of the cell phone via the GPS “ping” was proper.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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