Massachusetts high court holds passenger has standing to challenge GPS tracking

In a recent Massachusetts Supreme Judicial Court opinion, the high court held that both a driver and passenger had standing to challenge the use of GPS surveillance on a vehicle. Commonwealth v. Rousseau, Commonwealth v. Dreslinski, Nos. SJC-11227, SJC-11228 (Mass. 2013).

The case involves the appeals of two defendants, each arguing that the use of GPS tracking over a thirty-one day period violated the Fourth Amendment because it was not supported by probable cause and was overly broad. One defendant was the owner and operator of the vehicle; the other was a "mere passenger." At trial, the court found that the driver had no standing because the infringement of his privacy was minimally invasive. Further, the passenger had no standing because he had no reasonable expectation of privacy in the defendant's driveway or truck.

With regard to the driver, the court found:

whether we characterize the government's intrusion as a "seizure" under [Massachusetts case] Connolly or a "search" under Jones, by attaching a GPS device to his vehicle and tracking its movements, the government invaded Dreslinski's property and "controll[ed] and use[d]" it for its own purposes.

As to the passenger, however, no Fourth Amendment protection was found. However, applying state constitutional law, the court held:

We conclude that under art. 14, a person may reasonably expect not to be subjected to extended GPS electronic surveillance by the government, targeted at his movements, without judicial oversight and a showing of probable cause.

Ultimately, the defendants failed. The court found that there was sufficient evidence to support probable cause, and the convictions were upheld.