There's No Sense Waiting to See What the U.S. Supreme Court Has to Say about GPS Tracking

by Proskauer - New Media & Technology
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That appears to be the opinion of Magistrate Judge David Noce in United States v. Robinson, No. 4:11-cr-00361 (D. Mo. Dec. 27, 2011), who ruled that GPS tracking of a public official suspected of having a no-show municipal job did not require a warrant. This is, of course, the issue that is before the U.S. Supreme Court in United States v. Antoine Jones, No.10-1259 (U.S. cert. granted June 27, 2011), a fact that the magistrate judge recognized in his opinion.

Judge Noce noted precedent in the Eighth Circuit, as well as other circuits, for warrantless GPS tracking in similar situations. Relying on that precedent, he concluded that the tracking did not constitute either a search or a seizure, nor did it violate the defendant’s First Amendment associational rights.

The GPS tracking of the defendant’s automobile was conducted by the public corruption squad of the FBI, whose agents tracked the defendant using physical surveillance techniques for an unspecified period of time. This personnel-intensive technique was later replaced by a GPS tracking device that was magnetically attached to the defendant’s automobile while it was parked on a public street near his residence. The result was 24-hour tracking of the defendant’s automobile over a three-month period. The tracking revealed, according to the Government, that the defendant’s employment time sheets were false.

In concluding that the installation of the device did not constitute a search requiring a warrant, the magistrate in United States v. Robinson relied on United States v. Marquez, 605 F.3d 604 (8th Cir. 2010), which involved GPS tracking of a drug suspect for six months. The court in Marquez concluded that the GPS tracking did not constitute a search because the defendant did not have a reasonable expectation of privacy in the exterior of his vehicle; the installation of the GPS tracker was “non-invasive” and the vehicle was in a public place when the device was attached.

Neither was there a seizure of the defendant’s property as a result of the GPS device installation, the magistrate concluded, referencing the Seventh Circuit ruling in United States v. Garcia, 474 F.3d 994 (7th Cir.), cert. denied, 552 U.S. 883 (2007). That ruling also focused on the non-intrusive nature of the GPS device and the fact that it was battery-powered and did not utilize the car’s power system; did not affect its driving qualities or carrying capacity or even alter the vehicle’s appearance.

The magistrate separately considered the use of the GPS device to obtain tracking information, and concluded that it did not constitute a search requiring a warrant, again relying on Garcia and Marquez, as well as the Ninth Circuit ruling in United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010).

The magistrate also discussed the District of Columbia Circuit Court of Appeals ruling that is now before the Supreme Court in United States v. Antoine Jones (captioned below, United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). The Maynard opinion includes the notable passage that distinguishes the privacy implications of GPS tracking of a single public journey with prolonged, 24/7 GPS tracking of numerous journeys that cumulatively may reveal “information about one’s lifestyle, personal affairs, and other intimate matters.”

Judge Noce was unmoved by the so-called “mosaic theory” expressed in the Maynard opinion; in fact, he commented that the rulings in the Jones/Maynard case and the Marquez ruling were not so very far apart, and “disagreed in degree, not principle: Marquez permits warrantless use of a GPS tracker device ‘for a reasonable period of time’ while Maynard prohibits ‘prolonged’ warrantless GPS surveillance.” Although it should be noted, the Marquez ruling OK’d warrantless tracking over a six-month period, while the D.C. Circuit in the Jones/Maynard case had problems with tracking over a one-month period.

The oral argument before the Supreme Court in United States v. Antoine Jones appeared to reveal a court that was not so sure as Judge Noce of the right result with respect to GPS tracking. In fact, some commentators who heard the oral argument have judged the ultimate ruling in Jones as too close to call, including criminal law expert Orin Kerr, and Greg Nojeim, Senior Counsel for the Center for Democracy and Technology. Nojeim has even predicted that the result in Jones might cut across the Court’s traditional liberal/conservative lines. That would recall the result in another recent case in which the Court struggled with the implications of new technology: Brown v. Entertainment Merchants Association (U.S. June 27, 2011), in which the Court struck down the California violent videogames law. Justice Scalia, writing for a majority that included Justices Kennedy, Ginsburg, Sotomayor and Kagan, held that violent videogames were entitled to the same constitutional protection as violent books. The gist of his opinion is that use of new technology doesn’t justify the creation of new legal principles. Justices Thomas and Breyer each dissented, with Justice Breyer in particular expressing concern over the potential negative effects of new media such as videogames.

But of course, the Justices expressed attitudes toward new content delivery technology won’t necessarily map to their views on the use of GPS technology for surveillance.

If you have a spare hour, you can judge for yourself how the Court may rule on GPS tracking; the audio recording of the oral argument is available on C-SPAN.

Note also, that Magistrate Judge Noce’s opinion is a Report and Recommendation that may be overruled by the District Court. The parties’ objections to the Report are due on January 13, 2012.

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