Wednesday, April 3, 2013

"Closer call": 1st Cir. upholds pre-Jones GPS tracking for 11 days under Good Faith exception

In United States v. Sparks, No. 11-1134 (1st Cir. March 26, 2013), the First Circuit upheld the denial of suppression of GPS tracking evidence which occurred over the course of eleven days, citing the Good Faith exception articulated in Davis. The GPS installation and tracking were pre-United States v. Jones.

There are a few interesting things about this holding:

1. Associate Justice (Ret.) Souter sat by designation for the case

2. The court relied on precedent from the 80s (Knotts) and 70s (Moore) to justify the holding; both cases involved beepers

3. The opinion stated the decision wasn't perfunctory, but was "certainly a closer question in this circuit than in those that had directly addressed the propriety of warrantless GPS tracking prior to Jones."

4. Orin Kerr's piece on the Volokh Conspiracy got a reference in a footnote (#1) - Does Fourth Amendment Standing Work Differently for Jones Trespass Searches, Traditional Katz Searches, and Long-term Katz Searches?

The court's reasoning, in short:

The closer question is whether Knotts clearly and expressly authorized the subsequent monitoring of the GPS tracker for eleven days. Like the officers in Knotts, the FBI agents in this case used an electronic tracking device to follow the movements of a car. But they did two things differently: they used a GPS unit instead of a beeper, and they tracked the car for eleven days instead of a number of hours. Do either of these differences place the agents' conduct beyond the scope of what Knotts clearly permitted? 
On this record, we think the fact that the device was a GPS tracker rather than a beeper does not render Knotts inapplicable. Certainly, a GPS tracker is more capable than a beeper, "but nothing inheres in the technology to take it out of Knotts's holding."
That brings us to the duration of the monitoring: eleven days here, versus less than a day in Knotts-- not a trivial difference. But Knotts gave scant reason to think that the duration of the tracking in that case was material to the Court's reasoning. Rather, the Court appeared to apply a blanket rule that "[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another"; no such expectation attaches to information that is, like one's public movements, "voluntarily conveyed to anyone who wanted to look."460 U.S. at 281. Knotts did note that abusive "dragnet type" surveillance might be governed by "different constitutional principles," id. at 284, but there was no suggestion in the Knotts opinion that this rather brusque dismissal of the defendant's Orwellian warnings imposed a concrete temporal limitation on the case's apparently unqualified holding. Indeed, at the time of the search in this case, Knotts was widely and reasonably understood to stand for the proposition that the Fourth Amendment simply was not implicated by electronic surveillance of public automotive movements, because the latter was merely a more efficient "substitute . . . for an activity, namely following a car on a public street, that is unequivocally not a search within the meaning of the amendment."
Recognize that the court had to appeal to Knotts and Moore because conceding that those two cases do not allow prolonged GPS monitoring would require getting into the thornier argument of whether precedent outside the circuit (holding such monitoring was constitutionally sound) could be relied on by law enforcement and thus allow the Davis Good Faith exception argument.

Considering that most other courts have upheld pre-Jones GPS tracking under Davis, the holding isn't all together surprising. But, if you have spent a lot of time talking about the anachronism of law when it comes to technology, hearing GPS and "beeper" together again is worth the read (and the shudder). To quote Renee Hutchins, we are still "Tied up in Knotts."


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