Stephanie Vosk reports:
Police are allowed to secretly place Global Positioning System devices inside the cars of suspects they want to monitor — as long as they have a warrant to do so, the state Supreme Judicial Court ruled yesterday.
The decision stems from a case involving Harwich resident Everett Connolly, who was convicted of trafficking cocaine in 2006. He was sentenced to 20 years in state prison. State police placed a GPS device in his minivan and used it to track and arrest him in 2004.
Connolly’s lawyer, Ian Stone, argued that his client should be given a new trial because the police obtained information from the device after its seven-day expiration. That information gave police probable cause to search Connolly’s van and arrest him, Stone said.
He told the justices that Barnstable Superior Court Judge Gary Nickerson erred in denying Connolly’s motion to suppress the evidence found in the minivan — including 124.31 grams (about 4 ounces) of crack cocaine.
The court, however, found the warrant expired after 15 days, not seven, and the search and arrest were within that time frame.
Read more of Vosk’s report on Cape Cod Times.
The decision, while a loss for the defendant, may be a at least a partial win for civil libertartians. In the opinion, the court held that
the use of a GPS tracking device requires a warrant for purposes of art. 14 of the Massachusetts Declaration of Rights; the installation and use of the GPS tracking device in this case was a seizure;
That statement was probably not welcomed by the state. According to Vosk, Attorney General Martha Coakley had filed an amicus brief on behalf of the state that
in conjunction with district attorneys across the state — argued that a warrant for a GPS would not be required, as long as it was affixed while the vehicle was in a public place.
The court’s opinion suggests that Coakley’s brief had not gone quite that far:
(ii) Use of the GPS device. The defendant argues that surreptitious GPS monitoring without a warrant constitutes an unreasonable search and seizure that violates the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. While acknowledging that a warrant for use of the GPS device was issued in this case, the defendant maintains that the police continued to obtain information from that warrant after the warrant had expired. He claims that the police then improperly used that information both to obtain a warrant to search his minivan and to locate his minivan and execute the search warrant.(10) During the search of his minivan, the incriminating cocaine was found.
In its brief, the Commonwealth never actually takes a position on the question whether a warrant is required for the installation of a GPS device. We read the Commonwealth’s brief as suggesting that a warrant is not necessary, although such is not clearly stated. In any event, if use of a GPS device is either a search or a seizure, a valid warrant is required for its use. See Commonwealth v. Balicki, 436 Mass. 1, 8 (2002). We conclude that the installation and use of the GPS device in the circumstances of this case was a seizure requiring a warrant, and that the warrant obtained had not expired when the minivan was seized.
The Fourth Amendment issues raised by placing a GPS device on a car parked in a public space have as yet to be resolved. The court opinion explains:
(1) Electronic tracking under the Fourth Amendment. A search implicating the Fourth Amendment occurs “when an expectation of privacy that society is prepared to consider reasonable is infringed” and a seizure of property for purposes of the Fourth Amendment occurs when “there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Karo, 468 U.S. 705, 712 (1984) (Karo), quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984). Under the Fourth Amendment, there is no reasonable expectation of privacy in the publicly visible exterior of a vehicle. See New York v. Class, 475 U.S. 106, 112-114 (1986) (noting that interior of vehicle, in contrast, is subject to Fourth Amendment protection). Additionally, for Fourth Amendment purposes, no privacy interest exists in the movement of a vehicle traveling on a public roadway. See United States v. Knotts, 460 U.S. 276, 281-283 (1983) (Knotts).
Although the United States Supreme Court has decided that use of a beeper(11) placed inside a vehicle to track that vehicle while it is traveling on a public road is not a search for Fourth Amendment purposes, see Knotts, supra, the Court has not yet determined whether installation of a GPS device on a vehicle constitutes a search under the Fourth Amendment. See People v. Weaver, 12 N.Y.3d 433, 445 (2009). In its decisions on beeper tracking, the Court has relied on the level of sophistication of the particular electronic device, and the physical location from which the device transmitted its signal, to determine whether use of the device interferes with a reasonable expectation of privacy and therefore constitutes a search. Where the beeper at issue emitted a local signal that officers were required to track while driving within close range of the vehicle, the Court reasoned that it merely augmented officers’ physical abilities and did not provide more information than officers could have obtained by visual surveillance. Knotts, supra at 282. The Court indicated that other types of more sophisticated electronic surveillance might require a different result, id. at 283-284, and subsequently stated, in dicta, that satellite technology which replaces rather than enhances officers’ physical abilities could constitute a search under the Fourth Amendment. Dow Chem. Co. v. United States, 476 U.S. 227, 238-239 (1986). In addition, the use of data obtained from beeper tracking constitutes a Fourth Amendment search if the defendant has a protected privacy interest in the location, such as the interior of a private building, from which the beeper is signaling. See Karo, supra at 714-717.
Although they have concluded that a GPS device permits far more sophisticated surveillance than a beeper, see, e.g., United States v. Berry, 300 F. Supp. 2d 366, 368 (D. Md. 2004), and that GPS devices replace rather than enhance officers’ physical abilities, see, e.g., United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007), the few Federal courts to have considered the question of GPS monitoring have generally extended the reasoning in Knotts and Karo to the use of GPS devices. See United States v. McIver, 186 F.3d 1119, 1126-1127 (9th Cir. 1999), cert. denied, 528 U.S. 1117 (2000) (installation of GPS device on undercarriage of vehicle in driveway not search where driveway not within curtilage); United States v. Williams, F. Supp. 2d (W.D. Ky. 2009) (no search where GPS device was installed on exterior of vehicle and vehicle was tracked only on public roads, but outcome might have been “entirely different” if device had been installed or monitored while vehicle was located on private property); United States v. Jones, 451 F. Supp. 2d 71, 88 (D.D.C. 2006) (tracking GPS device on public roadway not search, but GPS data received while vehicle parked in garage is obtained as result of search); United States v. Moran, 349 F. Supp. 2d 425, 467 (N.D.N.Y. 2005) (tracking GPS device on highway not search where officers could have conducted surveillance by following vehicle on public road). Similarly, a few State courts have concluded that use of a GPS device on a public way is not a search under the Fourth Amendment. See, e.g., Stone v. State, 178 Md. App. 428, 446-450 (2008); State v. Sveum, 769 N.W.2d 53, 59 (Wis. Ct. App. 2009). At least one Federal court declined to decide whether the use of a GPS device constitutes a search or a seizure under the Fourth Amendment, but upheld the use where there was a court order permitting installation of the device and probable cause had been shown. See United States v. Berry, supra at 368.
Courts have not generally considered explicitly the question whether use of an electronic tracking device constitutes a seizure under the Fourth Amendment. See United States v. Garcia, supra at 996 (not deciding question of seizure with battery powered device because device did not “affect the car’s driving qualities, draw power from the car’s engine or battery,” or occupy space that “might otherwise have been occupied by passengers or packages”). In Knotts, some members of the United States Supreme Court observed that consideration of the seizure issue would have been desirable, but that the defendant did not raise the issue.(12) See Knotts, supra at 285-287 (Brennan, J., concurring in the judgment). The dissent in Karo made a similar observation. See Karo, supra at 729-734 & n.1 (Stevens, J., concurring in part and dissenting in part) (stating that tracking of beeper constituted seizure of truck).
(3) GPS device under art. 14. We resolve the defendant’s claims based only on the protection afforded by art. 14 of the Massachusetts Declaration of Rights, which, in the area of motor vehicles, provides protection at least equal to, and at times greater than, that provided by the Fourth Amendment. See Commonwealth v. Gonsalves, 429 Mass. 658, 662-663 (1999). We have not previously considered whether art. 14 provides greater protection than the Fourth Amendment in the area of GPS tracking devices.
We conclude that a warrant was required here because the initial installation of the particular device clearly constituted a seizure under art. 14. The installation required not only entry by the police into the minivan for an hour, but also operation of the vehicle’s electrical system, in order to attach the device to the vehicle’s power source and to verify that it was operating properly. Moreover, operation of the device required power from the defendant’s vehicle, an ongoing physical intrusion. See Karo, supra at 729 (Stevens, J., dissenting) (insertion of beeper in vehicle is physical invasion and seizure because it infringes on owner’s exclusionary right).
In addition, and apart from the installation of the GPS device, the police use of the defendant’s minivan to conduct GPS monitoring for their own purposes constituted a seizure.(13) When an electronic surveillance device is installed in a motor vehicle, be it a beeper, radio transmitter, or GPS device, the government’s control and use of the defendant’s vehicle to track its movements interferes with the defendant’s interest in the vehicle notwithstanding that he maintains possession of it. The owner of property has a right to exclude it from “all the world,” see Karo, supra at 729 (Stevens, J., dissenting), and the police use “infringes that exclusionary right.” Id. The interference occurs regardless whether the device draws power from the vehicle and regardless whether the data is transmitted to a monitoring computer. It is a seizure not by virtue of the technology employed, but because the police use private property (the vehicle) to obtain information for their own purposes.
As stated, in gathering and using the GPS data by means of the minivan, the police used the defendant’s minivan for government purposes, and did so without the defendant’s knowledge or authorization. Tracking of the GPS data by the police constituted use and control of the defendant’s minivan by them, and interfered with the defendant’s right to exclude others from his vehicle.(14) See United States v. Moore, 562 F.2d 106, 112 (1st Cir. 1977), cert. denied sub nom. Bobisink v. United States, 435 U.S. 926 (1978) (use of beeper legally implanted by stealth or attached by technical trespass “transforms the vehicle, unknown to its owner, into a messenger in the service of those watching it”). Although the defendant was not deprived of the ability to drive the minivan, by using the GPS device on the vehicle to track its movements the police asserted control over it, converting the minivan to their own use notwithstanding the defendant’s continued possession. The continual monitoring of the GPS data also substantially infringed on another meaningful possessory interest in the minivan: the defendant’s use and enjoyment of his vehicle. See Karo, supra at 729 (Stevens, J., dissenting) (“the character of the property is profoundly different when infected with an electronic bug than when it is entirely germ free”). Accordingly, we conclude that the monitoring and use of data from GPS devices requires a warrant under art. 14.(15)
Eventually, the explicit question of whether installation and use of a GPS device is a seizure under the Fourth Amendment, will likely wind up in the Supreme Court. For now, however, it remains a question that is likely to result in somewhat different answers in different states and courts.