If there is one truism about the Bill of Rights, it's that the 18th century constitutional framers could not have foreseen the many ways that the Fourth Amendment and other protections would apply to a changing technological society two centuries later. Yet the courts continue to apply the straightforward protection against unreasonable searches and seizures to sophisticated and even space-age police techniques that have the potential to open up every facet of our lives to police surveillance.
This puzzle is again playing out around the country, as state and federal courts are applying the Fourth Amendment to GPS tracking devices secretly placed on private motor vehicles by police officers without a warrant, allowing the police to monitor every move of the unwitting motorist. As courts around the country cannot agree on this issue, the Supreme Court may have to resolve the following question: Must the police secure a warrant from a neutral judge before they can attach a GPS to your vehicle? If the answer is "no," then the police may be allowed to place this device on anyone's vehicle based on mere suspicion that the motorist is breaking the law.
The Fourth Amendment is straightforward: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
While this amendment is more specific than other constitutional provisions, courts have issued reams of case law in trying to apply the Fourth Amendment to various factual situations. The Constitution does not always direct the courts to the right answer. The answer is necessarily devised by judges who apply their own standards of justice, balancing the rights of individuals against the needs of the government. This is why courts sometimes see the same legal issue differently. However, the touchstone of Fourth Amendment analysis is that the police need a warrant to search those areas in which we have a "reasonable expectation of privacy." Probable cause is necessary to secure a warrant.
Court Upholds GPS Surveillance
In January 2010, a three-judge panel of the Ninth Circuit Court of Appeals ruled in United States v. Pineda-Moreno that the Fourth Amendment allowed federal agents to enter the defendant's driveway in the middle of the night to place a GPS underneath his vehicle without a warrant. The officers conceded that they had entered the "curtilage" of Pineda-Moreno's home, defined as those portions of a homeowner's property so closely associated with the home as to be considered part of it. The GPS allowed the officers to track the precise movements of Pineda-Moreno's vehicle and he was arrested after it left a suspected marijuana grow site.
If the officers attached this intrusive device without a warrant or any showing of probable cause, how did the Ninth Circuit uphold the search of Pineda-Moreno's vehicle, particularly when the government conceded that his Jeep was parked right outside the home? What about his "reasonable expectation of privacy"?
The San Francisco-based appeals court, which has jurisdiction over nine western states, ruled that Pineda-Moreno had no reasonable expectation of privacy in his driveway because it is a "semi-private area" and he did not post "no trespassing" signs or erect any gate or other "features that would prevent someone standing in the street from seeing the entire driveway." The Court added that it was irrelevant for purposes of this analysis that the agents entered the property in the middle of the night. It also concluded that "the undercarriage of a vehicle, as part of its exterior, is not entitled to a reasonable expectation of privacy."
Summing up its reasoning, the Court of Appeals observed that one of the investigating agents testified that "an individual going up to the house to deliver the newspaper or to visit someone would have to go through the driveway to get to the house." If a neighborhood child had walked up Pineda-Moreno's driveway and crawled under his Jeep to retrieve a lost ball or runaway cat, Pineda-Moreno would have no grounds to complain. Thus, because Pineda-Moreno did not take steps to exclude passersby from his driveway, he could not claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of his home.
The notion that law enforcement may secretly place GPS tracking devices under the car parked in a person's driveway without a warrant is certainly frightening to many Americans, as evidenced by mainstream media and Internet commentary on the issue after the Ninth Circuit handed down this ruling. Fortunately, other courts and judges have pushed back against this intrusion.
Judge Kozinski's Dissent
After the Ninth Circuit decided Pineda-Moreno, the defendant's lawyers asked the entire court to reconsider the decision, formally known as an en banc petition. Standing by its ruling, the Court declined that invitation, but not before five judges issued a dissenting opinion from the denial of en banc review. Alex Kozinski, a conservative judge appointed by President Reagan, wrote the blistering dissent. Judge Kozinski accused the three-judge panel of issuing a "dangerous" opinion that ignores Supreme Court authority that the curtilage is part of the home for Fourth Amendment purposes. He further noted that just because strangers may enter the property to deliver the newspaper or retrieve a lost ball, "there are many parts of a person's property that are accessible to strangers for limited purposes," including the mail carrier, the gardener, and "the cable guy." He added that, "to say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people's curtilage."
What Judge Kozinski wrote next made him an Internet star for a few days, as he did what many liberal constitutional scholars have begged federal judges to do for decades: apply the law in a way that recognizes how it affects most people. Judge Kozinski noted that, unlike the vast majority of the 60 million people living within the Ninth Circuit's jurisdiction who "will see their privacy materially diminished by the panel's ruling," the "very rich" can easily erect structures (such as electric gates, tall fences, and motion detectors) that make it clear to outsiders that no one is allowed on their property, including the police.
Judge Kozinski was just getting started. After noting how the panel's decision protects the rich from intrusive police practices, the conservative jurist advanced a progressive policy argument that we have rarely seen in the era of Republican-dominated courts: "There's been much talk about diversity on the bench, but there's one kind of diversity that doesn't exist: no truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity, or sex, are selected from the class of people who don't live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that's not how we and our friends live. Yet poor people are entitled to privacy, even if they can't afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it's perfectly clear that he did not expect—and certainly did not consent—to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does."
Although four judges signed onto Judge Kozinski's dissenting opinion, the original decision in Pineda-Moreno remains the law of the Ninth Circuit. In addition to ruling that the police may place a GPS device underneath the vehicle in a homeowner's driveway without a warrant, the three-judge panel also held that the Fourth Amendment does not prohibit the police from continuously monitoring the vehicle on the highways.
The View Around The Country
Fortunately, Ninth Circuit rulings are not binding on other courts. In August 2010, the DC Circuit Court of Appeals issued a contrary ruling on the issue of whether the police may track a motorist over a prolonged period of time through GPS technology. In United States v. Maynard, the police tracked the defendant's vehicular movements 24 hours a day over the course of 4 weeks. They did this without a warrant. While the Supreme Court has held that short-term surveillance through electronic devices like beepers does not violate the Constitution, the DC Circuit ruled that long-term GPS tracking interfered with Maynard's reasonable expectation of privacy. Unlike short-term police tracking—which is no different from any member of the community briefly tailing the driver—motorists cannot reasonably expect that the community or the police will observe their movements all day for months at a time, "including his origin, route, destination, and each place he stops and how long he stays there."
Writing for the three-judge panel, Judge Douglas Ginsburg reasoned, "the whole of one's movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more—sometimes a good deal more—than does the sum of its parts."
While a single journey may not tell us much about the driver, continuous surveillance is another matter and it is far more intrusive than short-term tracking. As Judge Ginsburg explained: "Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one's not visiting any of these places over the course of a month. The sequence of a person's movements can reveal still more; a single trip to a gynecologist's office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another's travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts."
To the Supreme Court?
Various state courts have also ruled that the warrantless use of a GPS tracking device violates the search and seizure provisions of their state Constitutions, including New York, Washington, and Oregon. These divergent rulings on GPS surveillance will likely send this issue to the Supreme Court, which often hears cases to resolve conflicting rulings around the country. If that happens, the Court will have to re-examine its cases holding that the use of more primitive surveillance technologies did not have to satisfy Fourth Amendment standards.
One such precedent is United States v. Knotts, where the Supreme Court ruled in 1983 that, without a warrant, the police could place a beeper in a drum of chloroform to track the container's movements, allowing them to follow the vehicle that transported the container through a monitor that received signals from the beeper. As Justice Lippman of the New York Court of Appeals recently noted in People v. Weaver, "[a]t first blush, it would appear that Knotts does not bode well for Mr. Weaver, for in his case, as in Knotts, the surveillance technology was utilized for the purpose of tracking the progress of a vehicle over what may be safely supposed to have been predominantly public roads and, as in Knotts, these movements were at least in theory exposed to 'anyone who wanted to look'." But, as Justice Lippman noted, the similarities between a beeper in 1983 and GPS tracking devices in 2009 are superficial. The former was a primitive tool that "functioned merely as an enhancing adjunct to the surveilling officers' senses; the officers actively followed the vehicle and used the beeper as a means of maintaining and regaining actual visual contract with it." It appears the beeper was used on only one occasion in Knotts.
On the other hand, Justice Lippman observed, GPS provides for sophisticated and comprehensive surveillance that does not simply enhance human sensory capacity but, instead, "facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period."
It is difficult to predict how the Supreme Court will view GPS surveillance under the Fourth Amendment. Constitutional provisions intended to protect criminal defendants produce seemingly contradictory rulings from the Court, which is generally divided between four liberals and five conservatives. Recently, over a convincing dissent by recently-appointed Justice Sotomayor, the Court undercut the historic Miranda ruling in holding that suspects must speak up in order to invoke their right to remain silent.
On the other hand, in 2001, the Court ruled in Kyllo v. United States that the brief use of thermal imaging technology across the street from the defendant's home to detect heat lamps associated with marijuana cultivation constituted a "search" under the Fourth Amendment, requiring a warrant. The Kyllo ruling bodes well for civil liberties advocates: two of the Court's most prominent conservatives, Justices Scalia and Thomas, voted to strike down the thermal imaging search.
Stephen Bergstein is a New York attorney who writes on civil rights decisions (www.secondcircuitcivilrights.blogspot.com).