Must Read Law Review Article -- Personal Curtilage: Fourth Amendment Security in Public

Andrew Guthrie Ferguson has a new law review article in the April 2014 issue (Vol. 55, No. 4) of William & Mary Law Review, entitled: Personal Curtilage: Fourth Amendment Security in Public. The abstract is below:

Do citizens have any Fourth Amendment protection from sense-enhancing surveillance technologies in public? This Article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces. It proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage protection for private property. Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. Based on custom and law protecting against both nosy neighbors and the government, curtilage was defined by the actions the property owner took to signal a protected space. In simple terms, by building a wall around one's house, the property owner marked out an area of private control. So, too, the theory of personal curtilage turns on persons being able to control the protected areas of their lives in public by similarly signifying that an area is meant to be secure from others. 

This Article develops a theory of personal curtilage built on four overlapping foundational principles. First, persons can build a constitutionally protected space secure from governmental surveillance in public. Second, to claim this space as secure from governmental surveillance, the person must affirmatively mark that space in some symbolic manner. Third, these spaces must be related to areas of personal autonomy or intimate connection, be it personal, familial, or associational. Fourth, these contested spaces-like traditional curtilage-will be evaluated by objectively balancing these factors to determine if a Fourth Amendment search has occurred. Adapting the framework of traditional trespass, an intrusion by sense-enhancing technologies into this protected personal curtilage would be a search for Fourth Amendment purposes. The Article concludes that the theory of personal curtilage improves and clarifies the existing Fourth Amendment doctrine and offers a new framework for future cases. It also highlights the need for a new vision of trespass to address omnipresent sense-enhancing surveillance technologies.

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Featured Paper: Is the Court Allergic to Katz? Problems Posed by New Methods of Electronic Surveillance to the "Reasonable-Expectation-of Privacy" Test

Colin Shaff, a 3L at USC, has a new student note worth checking out: Is the Court Allergic to Katz? Problems Posed by New Methods of Electronic Surveillance to the "Reasonable-Expectation-of Privacy" Test. It appears in the Spring 2014 edition of the Southern California Interdisciplinary Law Journal.

The note discusses Jones, Katz, Olmstead, FISA, the ECPA, and many other facets of Fourth Amendment jurisprudence.

An excerpt from the intro:

This Note will examine the way in which the Court and Congress have reacted to the challenges posed by emerging technology with regards to the Fourth Amendment’s “unreasonable search and seizure” clause. This Note argues that the best balance between protecting personal liberties and respecting the needs of law enforcement occurs when the Court, Congress, and state legislatures collaborate to craft robust statutory schema; in contrast, when the Court makes decisions without legislative input or when Congress acts without judicial guidance, the resulting law is often inadequate or incomplete. 

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Massive round-up of new law articles, covering privacy, Fourth Amendment, GPS, cell site, cybercrime, big data, revenge porn, drones, and more

Spencer, Shaun B., The Surveillance Society and the Third-Party Privacy Problem (2013). South Carolina Law Review, Vol. 65, No. 2, 2013. Abstract: 

This Article examines a question that has become increasingly important in the emerging surveillance society: Should the law treat information as private even though others know about it? This is the third-party privacy problem. Part II explores two competing conceptions of privacy — the binary and contextual conceptions. Part III describes two features of the emerging surveillance society that should change the way we address the third-party privacy problem. One feature, “surveillance on demand,” results from exponential increases in data collection and aggregation. The other feature, “uploaded lives,” reflects a revolution in the type and amount of information that we share digitally. Part IV argues that the binary conception cannot protect privacy in the surveillance society because it fails to account for the new realities of surveillance on demand and uploaded lives. Finally, Part V illustrates how courts and legislators can implement the contextual conception to deal with two emerging surveillance society problems — facial recognition technology and geolocation data.

Kimberly N. Brown, Anonymity, Faceprints, and the Constitution, 21 Geo. Mason L. Rev. (forthcoming Winter 2014).

Jane Bambauer, Is Data Speech?, 66 Stan. L. Rev. 57 (2014). Abstract:

Privacy laws rely on the unexamined assumption that the collection of data is not speech. That assumption is incorrect. Privacy scholars, recognizing an imminent clash between this long-held assumption and First Amendment protections of information, argue that data is different from the sort of speech the Constitution intended to protect. But they fail to articulate a meaningful distinction between data and other more traditional forms of expression. Meanwhile, First Amendment scholars have not paid sufficient attention to new technologies that automatically capture data. These technologies reopen challenging questions about what “speech” is. 

This Article makes two overdue contributions to the First Amendment literature. First, it argues that when the scope of First Amendment coverage is ambiguous, courts should analyze the government’s motive for regulating. Second, it highlights and strengthens the strands of First Amendment theory that protect the right to create knowledge. Whenever the state regulates in order to interfere with the creation of knowledge, that regulation should draw First Amendment scrutiny. 

In combination, these claims show clearly why data must receive First Amendment protection. When the collection or distribution of data troubles lawmakers, it does so because data has the potential to inform and to inspire new opinions. Data privacy laws regulate minds, not technology. Thus, for all practical purposes, and in every context relevant to privacy debates, data is speech.

Elizabeth E. Joh, Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion, 55 Ariz. L. Rev. 997 (2014). Abstract:

The police tend to think that those who evade surveillance are criminals. Yet the evasion may only be a protest against the surveillance itself. Faced with the growing surveillance capacities of the government, some people object. They buy “burners” (prepaid phones) or “freedom phones” from Asia that have had all tracking devices removed, or they hide their smartphones in ad hoc Faraday cages that block their signals. They use Tor to surf the internet. They identify tracking devices with GPS detectors. They avoid credit cards and choose cash, prepaid debit cards, or bitcoins. They burn their garbage. At the extreme end, some “live off the grid” and cut off all contact with the modern world. 

These are all examples of what I call privacy protests: actions individuals take to block or to thwart government surveillance for reasons unrelated to criminal wrongdoing. Those engaged in privacy protests do so primarily because they object to the presence of perceived or potential government surveillance in their lives. How do we tell the difference between privacy protests and criminal evasions, and why does it matter? Surprisingly scant attention has been given to these questions, in part because Fourth Amendment law makes little distinction between ordinary criminal evasions and privacy protests. This Article discusses the importance of these ordinary acts of resistance, their place in constitutional criminal procedure, and their potential social value in the struggle over the meaning of privacy.

Conor M. Reardon, Cell Phones, Police Recording, and the Intersection of the First and Fourth Amendments, 63 Duke Law Journal 735-779 (2013). Abstract:

In a recent spate of highly publicized incidents, citizens have used cell phones equipped with video cameras to record violent arrests. Oftentimes they post their recordings on the Internet for public examination. As the courts have recognized, this behavior lies close to the heart of the First Amendment. 

But the Constitution imperfectly protects this new form of government monitoring. Fourth Amendment doctrine generally permits the warrantless seizure of cell phones used to record violent arrests, on the theory that the recording contains evidence of a crime. The Fourth Amendment inquiry does not evaluate a seizing officer’s state of mind, permitting an official to seize a video for the very purpose of suppressing its contents. Moreover, Supreme Court precedent is typically read to ignore First Amendment interests implicated by searches and seizures. 

This result is perverse. Courts evaluating these seizures should stop to recall the Fourth Amendment’s origins as a procedural safeguard for expressive interests. They should remember, too, the Supreme Court’s jurisprudence surrounding seizures of obscene materials—an area in which the Court carefully shaped Fourth Amendment doctrine to protect First Amendment values. Otherwise reasonable seizures can become unreasonable when they threaten free expression, and seizures of cell phones used to record violent arrests are of that stripe. Courts should therefore disallow this breed of seizure, trusting the political branches to craft a substitute procedure that will protect law-enforcement interests without doing violence to First Amendment freedoms.

Elizabeth Friedler, Protecting the Innocent—the Need to Adapt Federal Asset Forfeiture Laws to Protect the Interests of Third Parties in Digital Asset Seizures, Cardozo Arts & Entertainment Law Journal, Volume 32, Issue 1 (2013).

Jana Sutton, Of Information, Trust, and Ice Cream: A Recipe for a Different Perspective on the Privacy of Health Information, 55 Ariz. L. Rev. 1171 (2014). Abstract:

The concept of privacy is inescapable in modern society. As technology develops rapidly and online connections become an integral part of our daily routines, the lines between what may or may not be acceptable continue to blur. Individual autonomy is important. We cannot, however, allow it to suffocate the advancement of technology in such vital areas as public health. Although this Note cannot lay out detailed instructions to balance the desire for autonomy and the benefits of free information, it attempts to provide some perspective on whether we are anywhere close to striking the right balance. When the benefits of health information technology are so glaring, and yet its progress has been so stifled, perhaps we have placed far too much value—at least in the health care context—on individual privacy.

Kevin S. Bankston & Ashkan Soltani, Tiny Constables and the Cost of Surveillance: Making Cents Out of United States v. Jones, 123 YALE L.J. ONLINE 335 (2014). Abstract:

In United States v. Jones, five Supreme Court Justices wrote that government surveillance of one’s public movements for twenty-eight days using a GPS device violated a reasonable expectation of privacy and constituted a Fourth Amendment search. Unfortunately, they didn’t provide a clear and administrable rule that could be applied in other government surveillance cases. In this Essay, Kevin Bankston and Ashkan Soltani draw together threads from the Jones concurrences and existing legal scholarship and combine them with data about the costs of different location tracking techniques to articulate a cost-based conception of the expectation of privacy that both supports and is supported by the concurring opinions in Jones.

Schmitt, Michael N. and Vihul, Liis, The International Law of Attribution During Proxy 'Wars' in Cyberspace (January 30, 2014). 1 Fletcher Security Review (2014 Forthcoming). Abstract:

The article examines the use of non-State actors by States to conduct cyber operations against other States. In doing so, it examines attribution of a non-State actor's cyber operations to a State pursuant to the law of State responsibility, attribution of a non-State actor's cyber armed attack to a State for the purposes of a self-defense analysis, and attribution of cyber military operations to a State in the context of determining whether an international armed conflict has been initiated. These three very different legal inquiries are often confused with each other. The article seeks to deconstruct the issue of attribution into its various normative components.

Kate Crawford & Jason Schultz, Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms, 55 B.C. L. Rev. 93 (2014). Abstract:

The rise of “Big Data” analytics in the private sector poses new challenges for privacy advocates. Through its reliance on existing data and predictive analysis to create detailed individual profiles, Big Data has exploded the scope of personally identifiable information (“PII”). It has also effectively marginalized regulatory schema by evading current privacy protections with its novel methodology. Furthermore, poor execution of Big Data methodology may create additional harms by rendering inaccurate profiles that nonetheless impact an individual’s life and livelihood. To respond to Big Data’s evolving practices, this Article examines several existing privacy regimes and explains why these approaches inadequately address current Big Data challenges. This Article then proposes a new approach to mitigating predictive privacy harms—that of a right to procedural data due process. Although current privacy regimes offer limited nominal due process-like mechanisms, a more rigorous framework is needed to address their shortcomings. By examining due process’s role in the Anglo-American legal system and building on previous scholarship about due process for public administrative computer systems, this Article argues that individuals affected by Big Data should have similar rights to those in the legal system with respect to how their personal data is used in such adjudications. Using these principles, this Article analogizes a system of regulation that would provide such rights against private Big Data actors.

Larkin, Paul J., 'Revenge Porn,' State Law, and Free Speech (January 14, 2014).  Abstract:

For most of our history, only celebrities — presidents, movie stars, professional athletes, and the like — were at risk of having their everyday exploits and activities photographed and shown to the world. But that day is gone. Today, we all face the risk of being made into a celebrity due to the ubiquity of camera-equipped cell phones and the ease of uploading photographs or videos onto the Internet. But a particularly troubling aspect of this phenomenon goes by the name of "revenge porn" — that is, the Internet posting of photographs of naked former wives and girlfriends, sometimes in intimate positions or activities. Revenge porn is an example of malicious conduct that injures the welfare of someone who mistakenly trusted an intimate partner. Tort law traditionally has allowed parties to recover damages for such violations of privacy, and criminal law also can prohibit such conduct, but there are several First Amendment defenses that the responsible parties can assert to fend off liability. This article argues that allowing a victim of revenge porn to recover damages for publication that breaches an implicit promise of confidentiality is faithful to tort and criminal law principles and will not punish or chill the legitimate expression of free speech.

Jonathan Olivito, Beyond the Fourth Amendment: Limiting Drone Surveillance Through the Constitutional Right to Informational Privacy, 74 Ohio St. L.J. 669 (2013). 

The entirety of Volume 74, Issue 6 in the Ohio State Law Journal; Symposium: The Second Wave of Global Privacy Protection (Titles Below)

Peter Swire, The Second Wave of Global Privacy Protection: Symposium Introduction, 74 Ohio St. L.J. 841 (2013). 

Ann Bartow, Privacy Laws and Privacy Levers: Online Surveillance Versus Economic Development in the People’s Republic of China, 74 Ohio St. L.J. 853 (2013). 

Andrew Clearwater & J. Trevor Hughes, In the Beginning . . . An Early History of the Privacy Profession, 74 Ohio St. L.J. 897 (2013). 

Claudia Diaz, Omer Tene & Seda Gürses, Hero or Villain: The Data Controller in Privacy Law and Technologies, 74 Ohio St. L.J. 923 (2013). 

A. Michael Froomkin, “PETs Must Be on a Leash”: How U.S. Law (and Industry Practice) Often Undermines and Even Forbids Valuable Privacy Enhancing Technology, 74 Ohio St. L.J. 965 (2013). 

Woodrow Hartzog, Social Data, 74 Ohio St. L.J. 995 (2013). 

Dennis D. Hirsch, In Search of the Holy Grail: Achieving Global Privacy Rules Through Sector-Based Codes of Conduct, 74 Ohio St. L.J. 1029 (2013). 

Gus Hosein & Caroline Wilson Palow, Modern Safeguards for Modern Surveillance: An Analysis of Innovations in Communications Surveillance Techniques, 74 Ohio St. L.J. 1071 (2013). 

Anil Kalhan, Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, 74 Ohio St. L.J. 1105 (2013). 

Bartosz M. Marcinkowski, Privacy Paradox(es): In Search of a Transatlantic Data Protection Standard, 74 Ohio St. L.J. 1167 (2013). 

Thomas Margoni & Mark Perry, Deep Pockets, Packets, and Harbors, 74 Ohio St. L.J. 1195 (2013). 

Omer Tene, Privacy Law’s Midlife Crisis: A Critical Assessment of the Second Wave of Global Privacy Laws, 74 Ohio St. L.J. 1217 (2013). 

Yofi Tirosh & Michael Birnhack, Naked in Front of the Machine: Does Airport Scanning Violate Privacy? 74 Ohio St. L.J. 1263 (2013). 

Yang Wang, Pedro Giovanni Leon, Xiaoxuan Chen, Saranga Komanduri, Gregory Norcie, Kevin Scott, Alessandro Acquisti, Lorrie Faith Cranor & Norman Sadeh, From Facebook Regrets to Facebook Privacy Nudges, 74 Ohio St. L.J. 1307 (2013). 

Tal Z. Zarsky & Norberto Nuno Gomes de Andrade, Regulating Electronic Identity Intermediaries: The “Soft eID” Conundrum, 74 Ohio St. L.J. 1335 (2013).

The entirety of Volume 14, Issue 1 of the  Journal of High Technology Law (2014) (Titles Below).

After Jones, The Deluge: The Fourth Amendment's Treatment Of Information, Big Data And The Cloud , Lon A. Berk, 14 J. High Tech L. 1 (2014). 

The Legislative Response To Employers' Requests For Password Disclosure, Jordan M. Blanke, 14 J. High Tech L. 42 (2014). 

A Shot In The Dark: An Analysis Of The SEC's Response To The Rise Of Dark Pools Edwin Batista, 14 J. High Tech L. 83 (2014). 

Privacy Protections Left Wanting: Looking At Doctrine And Safeguards On Law Enforcements' Use Of GPS Tracking And Cell Phone Records With A Focus On Massachusetts, Lloyd Chebaclo, 14 J. High Tech L. 120 (2014).

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11th Cir. upholds pre-Jones warrantless GPS under good faith exception; precedent was 1981 beeper case

Another circuit court (the 11th) has jumped on the good faith exception bandwagon and upheld pre-Jones warrantless GPS use, finding that law enforcement reasonably relied on "binding" precedent at the time the GPS tracker was installed. The case is United States v. Ransfer, __ F.3d __ (11th Cir. 2014).

--Note: While Ransfer was pending, the 11th Cir. decided United States v. Smith, __ F.3d__ (11th Cir. 2013), which involved Ransfer's co-defendants. The court upheld warrantless GPS under the good faith exception in that case, as well, with a much more detailed explanation.

The "binding precedent" the Ransfer court cites to justify warrantless GPS tracking is United States v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc) (when the 11th Cir. was created in 1981, it incorporated 5th Cir. precedent). The court also relied on United States v. Andres, 703 F.3d 828 (5th Cir. 2013), a similar warrantless GPS case holding that police reliance on Michael was reasonable (and thus the good faith exception applied). As noted by the Ransfer court:

The Fifth Circuit recently held police could rely on Michael “[d]espite any
possible technological differences between a 1981 ‘beeper’ and the GPS device
used in this case, [because] the functionality is sufficiently similar that the agents’
reliance on Michael to install a GPS device on the truck, in light of the reasonable
suspicion of drug trafficking, was objectively reasonable.” United States v. Andres,
703 F.3d 828, 835 (5th Cir. 2013) cert. denied, 133 S. Ct. 2814 (2013). We agree
with the Fifth Circuit that Michael was clear, binding precedent that holds the
electronic tracking of a vehicle without a warrant does not violate the Fourth
Amendment, particularly where officers had reasonable suspicion the vehicle was
involved in criminal activity.

The 11th Circuit distinguished Katzin -- the recent 3rd Cir. case rejecting a good faith exception argument (see my post: Third Circuit: Warrant required for GPS tracking (Katzin); answers what Sup. Ct. reserved in Jones) -- by pointing to the police's limited use of the GPS tracker. Namely, "the GPS tracker was not used to trace the movements of Defendants. The tracking device was not used until after an armed robbery was committed and the vehicle was used to flee the scene. Then the GPS tracking device was used for a very brief period of time after the robbery to pinpoint the location of the vehicle and to dispatch police to arrest Defendants..." As I see it, the court is stating that the way GPS tracking was used here was more analogous to tracking via beeper than extended electronic surveillance; therefore, the court notes:

the technological distinctions the Third Circuit found relevant in Katzin do not apply to the facts of this case: 'Unlike GPS trackers, beepers require that the police expend resources – time and manpower – to physically follow a target vehicle.' Katzin, 2013 WL 5716367 at *6. That is exactly what occurred in this case.

Of course, I am not surprised at the outcome, given that most other circuits have held similarly. However, I think the court's attempt to distinguish Katzin is clumsy and logically questionable. While I agree that the GPS tracker was used very minimally here, it still permitted the police to pinpoint the car without expending resources (i.e. having to follow the car); that is quite different than Knotts or Michael where police had to be in range of the beeper's radio signal and thus had to surveil to some extent. Katzin ("GPS technology must be distinguished from the more primitive tracking devices of yesteryear such as 'beepers.' Beepers are nothing more than 'radio transmitter[s], usually battery operated, which emit[]  periodic signals that can be picked up by a radio receiver.' United States v. Knotts, 460 U.S. 276, 277, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983). In contrast to GPS trackers, beepers do not independently ascertain their location — they only broadcast a signal that the police can then follow via a corresponding receiver. Moreover, beeper signals are range-limited: if the police move far enough away from the beeper, they will be unable to receive the signal that the unit broadcasts. At bottom, then, beepers are mere aids for police officers already performing surveillance of a target vehicle.")

More fundamentally, though, I reiterate my distaste for outcomes like this that shift the Supreme Court's Davis/Leon opinions from requiring good faith to something more akin to blind faith. Many of these cases give a whiff of backward reasoning coupled with deference to police; to me, the constitutional protections of the Fourth Amendment should take precedence.

For example, to buy the good faith argument, here, you have to accept the following:

1. That police were aware of the Michael precedent from 1981 at the time of the GPS installation
2. That police knew 5th Circuit precedent was binding because it was incorporated by the 11th in 1981
3. That "Michael articulated clear, binding precedent that installation of a device permitting electronic surveillance of a vehicle does not violate the Fourth Amendment" Ransfer.
4. That Michael referred to a beeper as an electronic tracking device and it is commonly understood that "a GPS device is an 'electronic tracking device'"; thus, arguing a difference in kind between beepers and GPS trackers makes "too fine a distinction." Smith, __ F.3d __ (11th Cir. 2013) (slip op. at 20).
5. That the Michael beeper and Ransfer GPS are technologically analogous, as well, notwithstanding that "the precise technological capabilities of the beeper were not explained in the [Michael] opinion." Andres, slip op. at 10.
6. That when police installed the GPS tracker without a warrant they "'followed the Eleventh Circuit’s . . . precedent to the letter.'" Smith.

Side Note: With regard to the actual capabilities of the beeper in Michael, I went back to the panel decision of and it seems that the beeper was merely used to aid in visual surveillance of the van (i.e. to allow police to stay farther away) and not to track it somewhere without any effort at all. See United States v. Michael, 622 F.2d 744 (5th Cir. 1980) ("The warehouse was located four days after installation of the beeper through following Michael's van with [the beeper's] aid."). It seems odd, then, for the court in Smith to assert that an argument that beepers and GPS trackers are not functionally similar draws "too fine a distinction." The law has an open texture, to be sure, but distinctions must be made and analogies must have limits when technology is involved - the much maligned "tiny constable" in Jones epitomizes this point.

With that in mind, I don't know if I'm willing to believe all six arguments/premises above and conclude that the police in Ransfer were (using the language from Davis v. United States, 131 S. Ct. 2419 (2011)) "specifically authorized" by "unequivocal" precedent (as opposed to "interpret[ing] ambiguous precedent," a situation where the good faith exception does not apply), to place a GPS tracker on the defendant's car.

My main point is that the good faith exception is worthwhile when there is actually clear, binding precedent. Once you remove clarity (as is the case here), you begin making assumptions about individual knowledge, intent, logical extrapolation, analytical thinking, and various other mental processes. The end result is judicial deference to law enforcement at the expense of subverting constitutional protections.

This is especially true in cases where the good faith exception has been applied applied despite any appellate precedent authorizing the police activity in question. See, e.g., OH App Ct: Warrantless GPS tracking OK despite no precedent; My take on the "good" left in the good faith exception.

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Featured Paper: The Good-Faith Exception and Unsettled Law: A Study of GPS Tracking Cases After United States v. Jones

David J. Twombly, The Good-Faith Exception and Unsettled Law: A Study of GPS Tracking Cases After United States v. Jones, 74 Ohio St. L.J. 807 (2013). (J.D. expected '14, Ohio State). 

A key quote (and, one I agree with):

Setting aside the policy question of whether the exclusionary rule ought to stand or fall, lower courts should not take it upon themselves to extend the good-faith exception to cases of police negligence....When the right case comes along, the Supreme Court can clarify whether everyday police negligence really deserves the benefit of the good-faith exception.

...the analysis suggested for the good-faith exception asks a different question: whether the law has clearly established the constitutionality of a particular police practice. Another way to ask the question is whether the law has clearly established a citizen’s lack of a constitutional right under certain circumstances. If the law puts the reasonable officer on notice that her action might be unconstitutional, she should refrain. Reasonable uncertainty in this analysis will not provide the officer with good-faith protection, and suppression
of illegally obtained evidence will result. This standard keeps the good-faith exception tethered to an officer’s compliance with clear legal authority, but it does so in a way that allows law enforcement to adopt new investigative techniques without unreasonable delay.  

With respect to nonbinding precedent, this makes the suggested analysis a version of the broad-view approach described above, though it is consistent with the fundamental concerns of many narrow-view courts. In keeping with qualified immunity doctrine, the suggested analysis would allow courts to consider at least some nonbinding precedent as well as binding precedents not directly on point.

The abstract (from SSRN) is below:

The federal exclusionary rule generally prohibits the admission at trial of evidence procured by means of an unconstitutional search. But the rule admits of many exceptions, including an officer’s good-faith reliance on what reasonably appeared at the time of the search to be binding legal authority. The Supreme Court has applied the good-faith exception when police rely on warrants that turn out to be invalid because of magistrates’ errors or database inaccuracies, statutes that turn out to be unconstitutional, and, in the 2011 case of Davis v. United States, to “binding appellate precedent” later overturned. The Court has not determined, however, whether officers may act in good-faith reliance on nonbinding legal precedent. This question has recently arisen in a number of cases affected by the retroactive application of the rule announced in United States v. Jones that installing a GPS device on a vehicle constitutes a Fourth Amendment search.  

This Note analyzes the emerging disagreement among district courts over the reach of the good-faith exception. Courts have largely gone in one of two directions. Some read Davis narrowly as extending the good-faith exception only to an officer’s reliance on precedent binding in the jurisdiction at the time of the search. Others read Davis as authorizing a broad good-faith exception that would allow reliance on nonbinding precedent. The disagreement reflects great uncertainty in the lower courts as to the scope of the good-faith exception. Is the exception confined to the handful of situations the Supreme Court has recognized, or does it authorize lower courts to analyze the culpability of officers on a case-by-case basis and extend the exception to new facts? This Note argues that courts should adopt a modified standard from the Court’s qualified immunity cases, focusing on whether the constitutionality of an officer’s action has been clearly established. Such an analysis respects the fundamental rationale of the Court’s good-faith cases while retaining a robust role for the exclusionary rule.

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Featured Paper: Siri, Can You Keep a Secret? A Balanced Approach to Fourth Amendment Principles and Location Data

Frank Lin, a 3L at the University of Oregon, has a new law review article out entitled "Siri, Can You Keep a Secret? A Balanced Approach to Fourth Amendment Principles and Location Data."

I asked him to comment on his motivation for the article and he responded as follows:

I was drawn to this topic because privacy is one of the most important issues facing the American public today and it is one that has recently come to the forefront of public policy discourse. The rapid development and accessibility of technology has allowed Americans to reach new levels of interconnectivity. The implication of this is that, whether intentional or not, more details about our lives are being shared with public and private actors. The application of Fourth Amendment protection in a world where our access to privacy is quickly evolving poses a challenge for courts and law enforcement, especially in the context of location data. To this end, I wanted to advocate for an approach that is easily applicable, and more importantly, one that balances legitimate government interests and privacy concerns of the People.

An excerpt from his introduction:

The Fourth Amendment to the United States Constitution provides the right for “people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Underlying this phrase are guiding principles that have deep roots reaching as far as the Roman Empire. For instance, Roman statesman Cicero stated, “[w]hat is more inviolable . . . than the house of a citizen[?] . . . This place of refuge is so sacred to all men, that to be dragged from thence is unlawful.” 

But how do historic principles apply to modern society? The Fourth Amendment traditionally protected papers located in homes or in luggage. Today, however, information is no longer constrained to fading parchment. Information and methods of communication have transcended into a digital era, where ideas and beliefs reside in computer systems in distant locations that are maintained by third parties. Thus, it is not always clear how the Fourth Amendment applies to the information age.
…
Some worry that law enforcement’s use of location data can pose an objective harm, as they fear that the government will subject the public to non-stop surveillance. Judge Flaum from the Seventh Circuit noted that “[t]he constitutional ill of prolonged or mass use of GPS technology would not necessarily be based on the information acquired by the device but on the fact of the government’s gaze.” 

The legality of law enforcement’s use of location data remains ambiguous in the absence of clear direction from either the judiciary or the legislature. Further, the majority of the existing scholarship on the subject remains unworkably vague and hostile toward the government’s use of location data to aid in the investigation and prosecution of crime. This Comment proposes a standard for government access to location data that is not only practical, but also one that balances the legitimate interests of law enforcement and the privacy concerns of citizens. 

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OH App Ct: Warrantless GPS tracking OK despite no precedent; My take on the "good" left in the good faith exception

In State v. Johnson, 2013-Ohio-4865 (App. Ct. Nov. 4, 2013), the Twelfth Appellate District of Ohio upheld the warrantless GPS tracking (pre-Jones) of a defendant's vehicle by construing the Davis good faith exception widely. The court held that the absence of binding appellate precedent in Ohio authorizing warrantless GPS tracking was not outcome determinative; cases construing Davis narrowly typically hold the exact opposite (under the theory that there is no rational basis for good faith without primary law backing up the actions of law enforcement, even if the legal basis for the good faith is later overturned).

Instead, to determine if the good faith exception applied, the court analyzed the state of GPS tracking law at the time the tracker was placed (the court noted there wasn't much law except the antiquated beeper cases - Knotts and Karo, plus non-binding, but jurisdictionally related 7th Circuit precedent), as well as statements by law enforcement indicating common practices and understandings regarding the use of such technology. The court noted that by analyzing Davis this way, it was adopting a case-by-case, factual approach (which isn't novel - other courts have also tackled the issue similarly).

After addressing the facts of the case and surveying the law (or lack thereof) in Ohio at the time, the court found that the good faith exception still applied because the Sheriff's office had not "acted with a 'deliberate,' 'reckless,' or 'grossly negligent' disregard for [the defendant's] Fourth Amendment rights." The quoted language, which the court applies in a totality of the circumstances/balancing approach, is taken directly from the Davis opinion (however the Supreme Court never adopted this standard, so its use here is somewhat tenuous).

As Orin Kerr noted after the recent Katzin decision, courts faced with pre-Jones GPS tracking will continue to disagree about the scope of the good faith exception; most notably when no binding appellate precedent exists. I, like Orin, am no fan of the good faith exception but I can swallow opinions upholding warrantless GPS tracking when appellate precedent exists. There is a convincing argument for this view because law enforcement isn't charged with mentally adjudicating constitutional issues before proceeding with tactics to catch criminals that have authorization in the jurisdiction.

However, a wide view of Davis (that does not turn on binding precedent) negates, to some degree, the force of the Fourth Amendment; namely, that fundamental protections of the Constitution can be subverted if:
(1) we assume (irrationally, I believe) that law enforcement has extrapolated 1980's beeper cases to new technology before using it (as this opinion does);
(2) courts accept the argument that good faith can be based on anecdotal evidence (i.e., the officer's "belief that a warrant was unnecessary was not unfounded given the legal landscape that existed at the time the GPS device"; the court reaches this conclusion from the officer's testimony that "it was kind of common knowledge among other drug units or talking to other drug units that as long as the GPS is not hard wired, as long as it is placed on - - in a public area, removed in a public area, it is basically a tool or an extension of surveillance");
(3) we have faith that judgments made without primary law or judicial approval are respective of rights if an officer acts only after "consulting with fellow officers, other law enforcement agencies, and a prosecutor"; and
(4) we can accept a "free-floating culpability requirement" (as Orin Kerr describes it) that almost assures that the good faith exception will nearly swallow the rule.

I think (4) is the most troubling because I can't conjure a situation (other than a crazy law school hypo) where a court might find "'deliberate,' 'reckless,' or 'grossly negligent' disregard for...Fourth Amendment rights" in the absence of binding appellate precedent.

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Court finds evidence obtained with GPS violates 4th Amend., does not fit good faith exception, but still not subject to suppression

In United States v. Taylor, 1:12-cr-00042 (S.D. Ind. 2013), the district court held that evidence obtained as a result of GPS tracking on a vehicle violated the Fourth Amendment and, while it is not subject to admission under the Davis good faith exception, the evidence may still be used because it was objectively reasonable for law enforcement to rely the judicial authorization.

Police sought to put a GPS device on the defendant's vehicle after receiving a tip that the defendant was in possession of cocaine. The judicial authorization from a state court gave law enforcement the ability to use GPS tracking for sixty days and allowed it to "be powered either by an internal battery or by connecting [the GPS Unit] to the battery of the vehicle." Using the tracking, police were able to find a storage unit rented by the defendant, and after a narcotics dog gave a positive indication, cocaine was found during a search of the unit.

The defendant was charged with possession of cocaine and filed a motion to suppress the evidence because, he argued, it was obtained in violation of his Fourth Amendment rights. The federal district court agreed, finding that under United States v. Jones, the use of the GPS device without a warrant was a violation of the Fourth Amendment.

In many recent cases, however, despite such a decision, courts have often held that the Davis good faith exception would still allow the evidence to be used., but that was not the case here. The district court held that Davis applies when suppression would not deter wrongful police conduct. Here, suppression would "create an incentive for law enforcement 'to err on the side of constitutional behavior.'"

Nonetheless, the court found that suppression was not appropriate because it was objectively reasonable for police to rely on the judicial authorization they had received.

Instead of unilaterally deciding that they could attach the GPS Unit to Mr. Taylor's car, law enforcement sought and received judicial authorization to use the GPS Unit from the Marion Superior Court. 

When, as here, law enforcement officers seek judicial authorization for their actions—a step that courts should not discourage—and they receive such authorization, it is objectively reasonable for them to believe that the authorized actions do “not violate the Fourth Amendment.”

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Featured Paper: The Legislative Response to Mass Police Surveillance

Stephen Rushin has a forthcoming paper in the Brooklyn Law Review entitled: The Legislative Response to Mass Police Surveillance.

The abstract is below:

Police departments have rapidly adopted mass surveillance technologies in an effort to fight crime and improve efficiency. I have previously described this phenomenon as the growth of the digitally efficient investigative state. This new technological order transforms traditional law enforcement by improving the efficiency of everyday policing activities and retaining copious amounts of data on both suspicious and unsuspicious behavior. Empirical evidence shows that police surveillance technologies are common and rapidly expanding in urban America. In the absence of legislative action, police departments have adopted widely disparate internal policies. The Supreme Court had the opportunity to reign in the scope of police surveillance in Jones v. United States. But the Court could not agree on whether technological improvements in efficiency transform an otherwise legal policing tactic into an unconstitutional search. Nor could the Court agree on whether a person may have a reasonable expectation to privacy in public movement. Post-Jones, the jurisprudence of police surveillance emerged as incoherent as ever.  

I have previously argued that the judiciary should regulate police surveillance technologies. While it remains possible that the judiciary will someday make such a doctrinal shift, the immediate responsibility for regulating police surveillance technology falls on state legislatures. In this Article, I offer a model statute to regulate mass police surveillance. The model statute limits indiscriminate data collection. It also caps data retention for personally identifiable information. It excludes from criminal court any locational evidence obtained in violation of the statute. And it gives the state attorney general authority to bring suit against police departments that fail to abide by the law. This legislation would give discretion to police departments to craft data policies fitting their city’s unique needs, while also encouraging consistency and fairness.

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Third Circuit: Warrant required for GPS tracking (Katzin); answers what Sup. Ct. reserved in Jones

The Third Circuit issued its opinion in United States v. Katzin, today, holding that a warrant based on probable cause must be obtained by law enforcement to track a car with GPS (to comport with the Fourth Amendment). This is the first circuit court decision to plow head on into the issue the Supreme Court reserved judgment on in United States v. Jones. The majority opinion was written by Judge Greenaway, Jr, with a concurrence in part/dissent in part by Judge Van Antwerpen. The opinion is quite lengthy - 61 pages for the majority, 55 for the concurrence/dissent.

A previous post of mine compiled all of the Katzin case materials; that post can be found here:
Case Prep (all briefs & materials): US v. Katzin - GPS case before Third Circuit on Tuesday 3/19/13

The majority opinion spills a lot of ink reviewing the precedent from other circuits, including a detailed analysis of Maynard (affirdmed sub nom. United States v. Jones). And, of course, Mosaic Theory is discussed (Orin's article on Mosaic Theory is cited in the concurrence/dissent).

My law review article on Mosaic Theory is here:
Justin P. Webb, Car-ving Out Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction, 95 Marq. L. Rev. 751 (2011).

Orin's is here:
Orin Kerr, The Mosaic Theory of the Fourth Amendment, 110 Mich. L. Rev. 311 (2012).


Other coverage:

Cyrus Farivar at Ars Technica has a write up, here:
Appellate court: Nope, feds can’t just GPS track your car without a warrant

Kim Zetter at Threat Level:
Court Rules Probable-Cause Warrant Required for GPS Trackers

The ACLU has a write-up of the case on their blog:
VICTORY! Federal Appeals Court Rules Warrant Required for GPS Tracking

Orin Kerr has indicated he's going to have a post on the case on the Volokh Conspiracy soon.
Update (3am) - here it is: Third Circuit Requires Warrant for GPS Monitoring and Limits Good-Faith Exception in United States v. Katzin

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Ohio appellate court affirms motion to suppress regarding GPS evidence

The Court of Appeals of Ohio recently held that in the absence of a binding precedent, evidence obtained as a result of an improperly used GPS device should not be allowed in court under the Davis good faith rule. State v. Allen, 2013 Ohio 4188 (Ohio Ct. App. 2013).

Since the decision in United States v. Jones, the most debated GPS-related issue has been what to do in situations where a GPS device was used prior to the Supreme Court's decision without a search warrant in the absence of binding precedent. Some courts have held that the overwhelming trend was for there to be no warrant requirement, allowing the evidence to be used under the Davis good faith rule.

Other courts, such as the Court of Appeals of Ohio in Allen, have held that in the absence of binding law on the issue, the evidence cannot be used at trial.

[A]lthough the State urges an opposing view, we join with the Second and Eleventh Districts, who have now spoken on the issue, to underscore that the good-faith exception to the exclusionary rule is not available if there was no binding precedent in the jurisdiction. Thus, we decline to adopt the position the State urges that we broadly interpret Davis to allow an exception when non-binding precedence from other jurisdictions exist.

The state had argued that the detectives acted in good faith by asking prosecutors if a warrant was necessary. However, the court found that to be insufficient in order to hold that the defendant's Fourth Amendment rights had not been violated.

It has not been lost on this court that in addition to not obtaining a warrant prior to attaching the GPS tracking device to Allen's vehicle, the Lyndhurst detectives crossed into another jurisdiction by going into another county, under the cover of night, and entered a gated community to surreptitiously attach the device at issue. Thus, had a reckless wanton analysis been necessary, instead of Davis's application in the wake of Jones, it is arguably that the State's good-faith argument would have been tarnished by the procedure the Lyndhurst detectives employed to attach the GPS tracking device to Allen's vehicle.

Thus, the trial court's grant of the motion to suppress was affirmed.

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Georgia appeals court reverses burglary conviction due to illegal use of a GPS device

In Hamlett v. State, No. A13A0747 (Ga. Ct. App. 2013), the Court of Appeals of Georgia reversed a judgment in part due to the use of evidence derived from the illegal use of a GPS device.

The defendants were convicted of burglary and had attempted at trial to suppress evidence acquired after the placement of a GPS device. The arguments included lack of sufficient probable cause to use the device and also that a subsequent "stop was not supported by a reasonable articulable suspicion that he was or had been involved in criminal activity."

The appeals court held that because there was no evidence of the defendant's involvement in the crime at the time of the affidavit,

the detective's affidavit failed to provide a sufficient basis from which the Cobb County court could find the probable cause necessary to authorize the State's surreptitious and non-consensual installation and monitoring of the GPS tracking device.

Further, the illegality of the stop was not cured because of the truck's inoperable brake lights or expired tag. The officer testified that he had only followed and stopped the defendant because of the GPS monitoring and that he had acted differently than he would have for a routine stop. The court continued with its explanation and ultimately held:

Thus, the overwhelming and undisputed evidence shows that the traffic stop of Jalim's truck would not have occurred but for the State's illegal use of the GPS tracking device.

Thus, the burglary related convictions were reversed, but the defendant's conviction with regard to the license plate and brake lights were upheld.

A dissenting opinion argued that probable cause existed for the use of the GPS device and that the ultimate stop was legal.

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Law journal publishes issue discussing United States v. Jones topics: Privacy, Good Faith, Third Party Doctrine and more

The North Carolina Journal of Law & Technology recently published an issue dedicated to the Supreme Court's 2012 decision in United States v. Jones. Be sure to check out these great articles.

• “Jones”ing for Privacy Mandate, Getting a Technology Fix – Doctrine to Follow - Stephanie K. Pell
• A Shattered Looking Glass: The Pitfalls and Potential of the Mosaic Theory of Fourth Amendment Privacy - David Gray & Danielle Keats Citron
• The “Davis” Good Faith Rule and Getting Answers to Questions “Jones” Left Open - Susan Freiwald
• Protecting Elites: An Alternate Take on How United States v. Jones Fits into the Court’s Technology Jurispurdence - Tamara Rice Lave
• After United States v. Jones, After the Fourth Amendment Third Party Doctrine - Stephen E. Henderson
• Much Ado About Mosaics: How Original Principles Apply to Evolving Technology in United States v. Jones - Priscilla J. Smith

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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.

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Court overlooks "sloppiness" in GPS expert testimony; Others also address GPS and Jones issues

Many courts continue to deal with GPS and Jones in interesting ways. Here are some summaries from recent cases:

In United States v. Khan, No. CR-S-10-175 (E.D. Cal. 2013), the defendant argued that inconsistencies between a GPS log and a report of active surveillance from law enforcement created doubts about the accuracy of the evidence. The court found that the "drafting is incredibly sloppy but its sloppiness is not material." Even if the GPS tracking data had not been used, probable cause would have still existed.

In Pina v. Morris, No. 09-11800 (D. Mass. 2013), Pina brought an action under the Federal Civil Rights Act, arguing various rights violations. At trial, the definition of the word "search" was given as "a government intrusion upon 'a reasonable expectation of privacy.'" Pina had argued that a "'trespass' definition" under Jones was necessary to complete the definition, but the court disagreed. In the civil suit, the court found that Pina did not meet the standard for a new trial and that "it is difficult to see how it would have made any difference."

In State v. Lagrone, No. 49A05-1203-CR-135 (Ind. Ct. App 2013), the officers had taken a package of marijuana from UPS, added a GPS device and parcel wire, and had the package delivered. They then followed the defendant to his home and forced entry into the home after the wire signaled that the package had been opened. Because the device was attached before it was in the defendant's possession, the tracking was only 10 minutes, and they were also visually surveilling him, Jones was distinguishable. Further, applying Jacobsen, the opening and repackaging of the package did not violate a privacy interest. Further, applying Knotts and Karo, the transmission of information did not violate the Fourth Amendment.

In United States v. $2,599.00 in US Currency, No. 7:11-CV-192-BR (E.D.N.C. 2013), the court held that the Supreme Court's decision in Jones "did not negate the long-held principle that an individual must show some subjective expectation of privacy in order to have a basis for challenging a search." The claimants were arguing that Jones gave them standing under its trespass theory because the person authorizing the search of a safe "did not have a key."

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Antoine Jones denied release after mistrial; fourth trial pending

From the Blog of Legal Times:

Judge Orders Man Jailed in Landmark GPS Case 

The Washington man who was at the center of the U.S. Supreme Court’s landmark ruling over GPS tracking will remain locked up pending his fourth trial, a federal judge ruled today. 

U.S. District Judge Ellen Segal Huvelle concluded no condition of release would “reasonably assure” the safety of the public. The defendant, Antoine Jones, has remained in custody since his arrest in late 2005 for his alleged role in a drug trafficking ring.

The full memo opinion/order is here: Jones Detention 

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Good faith exception saves location data obtained after failure to request GPS data in wiretap request

In United States v. Barajas, No. 12-3003 (10th Cir. 2013), the Tenth Circuit refused to suppress evidence over a claim that the failure to request GPS data in a wiretap request prevented its use.

The DEA was investigating alleged drug trafficking and obtained a wiretap order for the defendant's cell phone after showing the court that other methods of surveillance had been unsuccessful. The affidavit, however, did not request GPS or cell site location data, though the actual order of the court did allow law enforcement to acquire it. At trial, the defendant filed a motion to suppress evidence that was acquired as a result of GPS pinging, but the motion was denied.

On appeal, the defendant argued "there is no probable cause for GPS pinging because the affidavits did not request GPS data." The Tenth ruled otherwise on that point, but noted that a separate probable cause determination was necessary for the GPS use as was required for the granting of the wiretap order. Ultimately on this point, the court held:

Absent an explanation of how Mr. Barajas's location would reveal information about the workings of the conspiracy—or more accurately, Mr. Barajas himself—we cannot be certain that probable cause exists.

That, of course, is not the end of the analysis. In applying the Leon good faith exception, the court held that while they "would prefer" the GPS data explanation in the affidavit, they will not hold the government to the "substantial nexus" standard for failure to do so. Further, the gap in the affadavit and order "gives [the court] more pause," but it is not clear that it was intentional. Thus, good faith saved the evidence for the government.

The defendant also argued that the wiretap evidence should have been suppressed for lack of necessity, but the court found that the government had met its burden with an explanation on why traditional investigative techniques were not sufficient.

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Ohio Court of Appeals: No Katz argument for GPS use where defendant was "several times removed" from the renter

In State v. Rich, 2013 Ohio 857 (Ohio Ct. App. 2013), the Ohio Court of Appeals held that because the defendant was "'several times removed' from the person who rented the vehicle," he could not make a Katz argument to show that the use of a GPS device violated the Fourth Amendment.

Police were investigating a drug operation. The detective rented a vehicle, attached a GPS device, and gave the vehicle to a confidential informant. The informant picked up the suspects, and one of them later took over as the driver of the vehicle. Police later pulled the vehicle over, and cocaine was found. The defendant moved to suppress the evidence, arguing that the use of the GPS device violated the Fourth Amendment.

The Court of Appeals quickly shot down an argument that the use violated Jones. Because the device was placed prior to the defendant gaining possession of the vehicle, there was no trespass. However, the defendant made a Katz argument that he had a subjective expectation of privacy. Again, the court didn't buy it:

The facts show that Rich received permission to use the [vehicle] from one of his co-conspirators, Bernabe, who had received permission to use the vehicle from another of their co-conspirators, Rubio, who had received permission to use the vehicle from the [confidential informant], who had received the vehicle from Detective Thompson. We agree with the trial court that under these circumstances in which Rich was "several times removed" from the person who rented the vehicle, i.e., Detective Thompson, Rich did not have an objectively reasonable expectation of privacy in the vehicle.

The court also noted that the use would have also been upheld under the good faith exception in Davis.

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Case Prep (all briefs & materials): US v. Katzin - GPS case before Third Circuit on Tuesday 3/19/13

Tomorrow (3/19/13), the Third Circuit is set to hear oral arguments in US v. Katzin, No. 12-2548,  a GPS tracking case the government appealed after a federal district court ruled (post-Jones) that the good faith exception did not apply to the conduct in this case because, inter alia, there was no Third Circuit precedent allowing warrantless GPS tracking to begin with but merely a disagreement between other circuits.

First, for some background, Jeffrey has mentioned this case more than once. His relevant posts can be found here:

Government appeals GPS case to Third Circuit; groups file amicus arguing that warrant is required (about Katzin itself)

District court okays warrantless pre-Jones GPS use, holds that good faith rule doesn't require binding precedent (about United States v. Baez, another GPS tracking case where evidence was not suppressed; it includes a discussion of the Davis good faith rule as well as a paragraph on Katzin)

Second, here are some write-ups on the case itself from the media & amici:

From Wired (posted today, 3/18/13): Feds: No Warrant Needed to Track Your Car With a GPS Device
From the ACLU: ACLU in Federal Appeals Court Tuesday Arguing Against Warrantless GPS Tracking
From the EFF (authored by Hanni Fakhoury & Marcia Hoffman): Jones Meant What it Said: EFF Urges Court to Stop Warrantless GPS Tracking

Finally, here are all of the documents related to the case (for those who like to review all of the materials) in chronological order. This includes an updated version of the government's brief:

5/09/12 - E.D. PA Memorandum Granting Suppression of the GPS Evidence
10/25/12 - Brief for Appellee Harry Katzin
11/05/12 - Brief of Appellee Mark Katzin
11/13/12 - Amicus Brief from EFF, ACLU, ACLU PA Chapter, and Nat'l Assoc. of Criminal Defense Lawyers
12/03/12 - Reply Brief for Appellant United States of America

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Summaries of recent GPS tracking cases

Here are a few summaries of some recent cases on GPS tracking:

• United States v. Gibson, No. 10-15629 (11th Cir. 2013) - Defendant was arguing that certain evidence should have been suppressed at trial because the GPS use violated the Fourth Amendment, but the trial court had held that there was no violation. The 11th held that the defendant did not have standing to challenge the ultimate search and seizure of the vehicle because although he paid the insurance on it and often drove it, he was not the owner, driver, or passenger at the time it was searched. A dissent argued that the defendant was "effectively a co-owner" and had a reasonable expectation of privacy in the vehicle.
• Commonwealth v. Burgos, 2013 PA Super 26 (Pa. Sup. Ct. 2013) - Trial court suppressed evidence obtained as a result of GPS monitoring after applying the Supreme Court's decision in Jones.  No search warrant had been issued, so the search had been unconstitutional under the application of the "per se unreasonableness" analysis (both probable cause and a warrant are necessary). However, the appeals court held that the search was proper because although there was no search warrant, a court order had been obtained under the Pennsylvania Wiretap Act which allowed the GPS use and was supported by probable cause. Thus, the fact that an actual search warrant was not acquired was irrelevant. The motion to suppress was reversed.
• Commonwealth v. Arthur, 2013 PA Super 28 (Pa. Sup. Ct. 2013) - Defendant could not challenge the use of GPS tracking because she did not have standing. "Jones ... did not negate the long-held principle that a defendant must have standing ... and must show some privacy interest." Because she was not the owner or even a passenger, she could challenge the tracking of a co-conspirator's vehicle.

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