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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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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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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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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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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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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Mississippi Law Journal publishes eight articles on technology and search and seizure

Be sure to check out these articles published recently in the Mississippi Law Journal related to technology and the Fourth Amendment, including two on United States v. Jones.

• Protecting State Secrets: Jurisdictional Differences and Current Developments, Miiko Kumar, 82 Miss. L.J. 853 (2013)
• United States v. Jones: Return to Trespass–Good News or Bad, Arnold H. Loewy, 82 Miss. L.J. 879 (2013)
• Fear and Loathing at the U.S. Border, Janet C. Hoeffel and Stephen Singer, 82 Miss. L.J. 833 (2013)
• Privacy in an Age of Advancing Technology, Russell L. Weaver, 82 Miss. L.J. 975 (2013)
• Watching the Watchers, Ronald J. Bacigal, 82 Miss. L.J. 821 (2013)
• Concreteness Drift and the Fourth Amendment, Luke M. Milligan, 82 Miss. L.J. 891 (2013)
• Protecting State Secrets: Jurisdictional Differences and Current Developments, Miiko Kumar, 82 Miss. L.J. 853 (2013)
• United States v. Jones: Return to Trespass–Good News or Bad, Arnold H. Loewy, 82 Miss. L.J. 879 (2013)

Outgoing Editor-in-Chief of the Mississippi Law Journal Emily Stedman stressed the importance of publishing this biennial book, noting that it addresses "fairly common issues faced by the Supreme Court."

The Journal also publishes an annual book on Fourth Amendment law following the National Center for Justice and the Rule of Law's Fourth Amendment Symposium, organized each year by Professor Thomas Clancy.

"Ultimately, I think it is the hope of the Mississippi Law Journal to remain at the forefront of offerings in this area," concluded Stedman.

Be sure to browse the Journal's archive for previous editions of both publications. 

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Featured Paper: Jonesing for a Privacy Mandate, Getting a Technology Fix--Doctrine to Follow

Stephanie K. Pell has posted a new paper on SSRN entitled: "Jonesing for a Privacy Mandate, Getting a Technology Fix--Doctrine to Follow." Hat-tip to Chris Soghoian for mentioning it on Twitter. The article abstract is below:

While the Jones Court held unanimously that the government’s use of a GPS device to track Antoine Jones’ vehicle for 28 days was a Fourth Amendment search, the Justices disagreed on the facts and rationale supporting the holding. Beyond the very narrow trespassed-based search theory regulating the government’s attachment of a GPS device to Jones’ vehicle with the intent to gather information, the majority opinion does nothing to constrain government use of other tracking technologies, including cell phones, which merely involve the transmission of electronic signals without physical trespass. While the concurring opinions endorse application of the Katz reasonable expectation of privacy test to instances of government use of tracking technologies that do not depend on physical trespass, they offer little in the way of clear, concrete guidance to lower courts that would seek to apply Katz in such cases. Taken as a whole, then, the Jones opinions leave us still jonesing for a privacy mandate. As of the writing of this Article, Congress has not been successful in passing legislation that would regulate government use of tracking technologies. A third regulator of government power has emerged, however, in the form of technology itself, specifically in new(ish) methods an individual or group of individuals can use to make it more difficult, in some cases perhaps impossible, for law enforcement to obtain the information it seeks. While waiting for more definitive action from the courts and Congress, such “privacy enhancing” anonymization and encryption technologies can provide a temporary “fix” to the problem of ever-expanding police powers in the digital age, insofar as they make law enforcement investigations more difficult and expensive, thereby forcing law enforcement to prioritize some investigations and, perhaps, de-emphasize or drop others. Moreover, at a time when cybersecurity is a national security priority and recommended “best practices” include the use of encryption technologies to protect, among other things, US intellectual property, law enforcement is likely to face continued instances of “Going Dark” as it attempts to intercept communications in the face of the increasing availability and use of encryption technologies. As Congress considers possibilities for expanding law enforcement interception capabilities, it will be forced to accommodate the complex dualistic properties of technologies that, on one hand, bolster our national security against certain kind of threats while, on the other, they limit or thwart law enforcement’s ability to fulfill its traditional public safety function of investigating crimes.

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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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"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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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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Mistrial declared in Antoine Jones' third trial

Antoine Jones, the defendant in the high-profile Supreme Court case on GPS tracking United States v. Jones, had his third trial declared a mistrial yesterday. Since his arrest in 2005, the feds have repeatedly tried to prosecute him for drug crimes.

Jones' first trial also resulted in a mistrial, but it was his conviction after a second trial that led to the landmark Supreme Court decision that modified the Fourth Amendment as we know it. After the high court forbade the government from using the evidence they had collected as a result of a GPS tracking device on Jones' vehicle, the government went back to trial using location information acquired from Jones's cell phone.

Last week, jurors notified District Court Judge Ellen Segal Huvelle that they had deadlocked, 6-6, after seven days of deliberations. The U.S. Attorney's Office says it plans to again retry Jones.

In the latest of trials, Jones chose to represent himself. The parties are expected to appear back in court this afternoon.

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Featured Paper: Domestic Drone Use and the Mosaic Theory

From Sean Sullivan at UNM Law School. The article can be found here: Domestic Drone Use and the Mosaic Theory.

Abstract:

The use of unmanned aerial drones - operated by remote pilots and capable of conducting pinpoint strikes on targets around the world - has revolutionized the fight against terrorism. Within the past few years, however, drones have also been used for domestic security and law enforcement purposes, and such local use is likely to expand in the near future. Whether the government’s use of emerging, sophisticated technologies comports with the 4th Amendment’s protection against unreasonable searches and seizures has confounded the courts, and there are growing concerns that traditional 4th Amendment analyses are no longer workable in the context of modern technologies. In U.S. v. Jones (2011), the Supreme Court applied a relatively new doctrine, the “mosaic theory,” in determining whether the government’s use of technology, in this case a G.P.S. tracking system, was consistent with fundamental 4th Amendment protections. 

This paper explores whether the “mosaic theory,” laid out by legal scholar Orin Kerr and espoused by the Court in Jones, can be applicable to 4th Amendment challenges to domestic drone use. This paper first explains the extent to which drones are already operational domestically, and briefly discusses proposals to expand their domestic capabilities; second, provides a brief overview of the traditional 4th Amendment analyses in the realm of emerging technologies, with an eye toward determining whether the “property-driven” or “reasonable expectation of privacy” doctrines are no longer applicable to such sophisticated technologies; third, discusses the Jones case as well as the “mosaic theory” in order to provide a solid foundation from which to draw conclusions about its applicability to domestic drone use; and fourth, analyzes a particular type of domestic drone use under the “mosaic theory” rubric, and determines whether it is an appropriate framework to ensure 4th Amendment protections in the context of emerging technologies going forward. 

The domestic uses of drones are increasing and have been largely overlooked by the public. At the same time, the courts are struggling with how to check such use against the constitutional right to be free from unreasonable searches and seizures. An appropriate analytical framework is needed to assist the courts in ensuring that the government’s domestic use of drones does not infringe on the people’s well-established civil liberties before drones become an even more ubiquitous part of the domestic American experience or facilitate the creation of a perpetual “nanny state” under the guise of providing national security.

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CA appellate court allows warrantless use of speed/braking records from car's airbag module (SDM)

In another first impression case, a California appellate court ruled that an individual has no reasonable expectation of privacy in the data recorded by a car's sensing diagnostic module (SDM), which is part of the airbag system. Therefore, the court upheld the police's actions to retrieve that information from a car that was lawfully impounded after an accident. The case is People v. Diaz, __ Cal. App. Ct. __ (Feb 6, 2013), and a copy of the opinion can be found: here.

The "main function of the SDM is to deploy the air bags. The SDM has the secondary function of recording throttle, speed, application of brakes, and transmission position." In this case it was used as evidence to prove the speed of a vehicle involved in an accident resulting in death (the driver was also intoxicated). The defendant argued that an individual has a reasonable expectation of privacy in that information, and that the police's actions to cut her carpet to get to the module, and then download the data, was a violation of the Fourth Amendment. As mentioned above, the car had been impounded after the accident, and was essentially totaled. The defendant attempted to make an appeal to United States v. Jones in her argument to no avail. The court quickly dismissed that argument, stating "the trespass theory underlying Jones has no relevance and, as the trial court aptly pointed out, the purpose of the SDM was not to obtain information for the police. Thus, Jones is not helpful to defendant."

The holding of the case turned on the instrumentality of crime exception to the warrant requirement, stating that: "In this case, defendant's vehicle was itself an instrumentality of the crime of vehicular manslaughter. Defendant concedes it was lawfully seized. Consistent with the California Supreme Court cases discussed above, the officers' 'subsequent examination of the [vehicle] for the purpose of examining its evidentiary value [did] not constitute a ‘search’ as that term is used in the California and federal Constitutions. [Citations.]'"

Regarding the expectation of privacy, the real interesting portion of the court's holding is below:

As the trial court pointed out, the specific data obtained from the SDM was the vehicle's speed and braking immediately before the impact. We agree that a person has no reasonable expectation of privacy in speed on a public highway because speed may readily be observed and measured through, for example, radar devices . . ., pacing the vehicle . . ., or estimation by a trained expert . . . . Similarly, a person has no reasonable expectation of privacy in use of a vehicle's brakes because statutorily required brake lights (Veh. Code, § 24603) announce that use to the public. Thus, defendant has not demonstrated that she had a subjective expectation of privacy in the SDM's recorded data because she was driving on the public roadway, and others could observe her vehicle's movements, braking, and speed, either directly or through the use of technology such as radar guns or automated cameras. In this case, technology merely captured information defendant knowingly exposed to the public—the speed at which she was travelling and whether she applied her brakes before the impact. 

We conclude there was no Fourth Amendment violation in the admission of SDM evidence.

I was unaware, until reading this case, that such information was stored on a device in cars equipped with airbags. It is a very interesting case, and I believe the court resolved it correctly. An attempt to pull Jones in to inject the ideas of "mosaic theory" and trespass was an interesting move by the defense, but knowing someone's location and tracking their every move is much different than reconstructing their speed and braking. GPS tracking can reveal much about a person's life. Speed and braking can pretty much only tell you if that person has a lead foot or rides the brakes.

New York dealt with a similar case in 2004 (which the court mentions), People v. Christmann, 776 N.Y.S.2d 437 (Just. Ct. 2004), resulting in the same outcome.

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Court holds that Jones concurrences do not provide that extended surveillance violates Fourth Amendment

In United States v. Brooks, No. CR 11-2265 (D. Ariz. 2012), the court held that the concurring opinions in the Supreme Court's 2012 Jones decision cannot be read to find that prolonged video surveillance violates the Fourth Amendment.

Law enforcement had placed a camera on a service pole outside the defendant's apartment complex with permission from the property owner. The camera was able to zoom and pan. Using images acquired from the camera, the government was able to build a case against the defendant.

At issue before the court was whether the placement of the camera violated the defendant's Fourth Amendment rights and the evidence should be suppressed. The defendant, relying on concurring opinions by Justices Alito and Sotomayor, argued that under United States v. Jones, "long-term continuous surveillance violate's a person's Fourth Amendment rights."

The court disagreed that the concurring opinions can be read as binding.

While it does appear that in some future case, a five justice "majority" is willing to accept the principle that Government surveillance can implicate an individual's reasonable expectation of privacy over time, Jones does not dictate the result of the case at hand because it merely reaffirms the reasonable expectation of privacy analysis.... Accordingly, the Court must determine whether Defendant's reasonable expectation of privacy required law enforcement to obtain a warrant before conducting pole camera surveillance on the parking lot of a gated apartment complex associated with Defendant from a camera whose installation was permitted.

As such, the motion to suppress was denied.

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Featured Paper: Quis Custodiet Ipsos Custodes?

I'd like to highlight a new student paper by Craig Roush, a law student at Marquette University Law School. The full title is: Quis Custodiet Ipsos Custodes? Limits on Widespread Surveillance and Intelligence Gathering By Local Law Enforcement After 9/11. Craig analyzes the changes in intelligence and surveillance gathering after 9/11 and in particular, the way in which local law enforcement has become intricately involved in the process. He goes on to identify the implications of such practices on civil liberties, and concludes by offering suggestions for protecting civil liberties through legislative methods. I've read a lot of student papers while on law review (this is my 3rd year), and I have no problem saying this is one of the best papers I have read. The abstract is below:

In the decade since the terrorist attacks of September 11, 2001, local law enforcement has become the front line in the nation’s counterterrorism strategy. This involvement has not come without controversy. As part of these counterterrorism efforts, police departments have begun to establish widespread surveillance and intelligence-gathering networks to monitor Muslim and other ethnic neighborhoods in the hopes of stopping the next terrorist attack at its source. Such surveillance does not necessarily run afoul of the Constitution, and both our political environment—in which voters demand that the government stop terrorism at all costs—as well as unprecedented levels of federal funding to fight terrorism have made these surveillance programs an attractive option for local law enforcement. But the same programs risk compromising citizens’ civil liberties and damaging police relationships with ethnic communities. This Comment analyzes whether and how a balance might be struck between national security and individual civil liberties interests, and offers a model statutory solution drawn from police surveillance in a non-terrorism- related context as one possible way forward.

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Jones II: District court holds that SCA's lack of suppression remedy and the good faith exception allows admission of CSLI

In the continuing saga of the case against Antoine Jones, the DC district court has held that the use of Jones's cell site location information does not violate the Fourth Amendment. United States v. Jones, No. 05-0386 (D.D.C. 2012). In January, the Supreme Court ruled that location information acquired as a result of law enforcement placing a GPS device on Jones's car could not be used at trial as it violated the Fourth Amendment.

During the initial investigation, law enforcement obtained both GPS data and cell site data but only sought to use the GPS data at trial. After the Supreme Court's determination that such data could not be used, the government sought to have CSLI introduced at Jones's retrial. The four months of cell site information had been obtained from Cingular Wireless under a 2703(d) order pursuant to the Stored Communications Act in 2005.

Jones's first motion to suppress argument was that prospective CSLI data (that which is acquired by the phone company after the order is issued rather than seeking "historical" data already obtained) cannot be obtained under the SCA without probable cause. The court held that a majority of courts have agreed, but the argument is irrelevant because the SCA does not provide a suppression remedy. Thus, regardless of a successful argument, the data would still be admissible under the SCA.

Of course, Jones's second argument was under the Fourth Amendment, which if successful would allow for suppression. The court thoroughly examined the different approaches for analyzing the Fourth Amendment's application to orders to obtain CSLI. However, the court declined to decide the issue, finding that the good-faith exception would apply, reasoning that at the time the order was obtained, the officers had no way of knowing how future courts would rule on prospective CSLI, and even today, the issue is not settled.

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Maryland appellate court applies good faith exception to GPS use because of prior adoption of Knotts rationale

The Court of Special Appeals of Maryland recently held that the good faith exception to the exclusionary rule from Davis applies to pre-Jones GPS use because of the state's adoption of the Supreme Court's decision in Knotts. Kelly v. State, Nos. 2479 & 2679 (Md. Ct. Spec. App. 2012). In case you're in need of a criminal procedure refresher, I'll go over what all of that means.

First, we know that the Fourth Amendment generally requires a probable cause search warrant in order to conduct a search. Thus, we have to know what is considered a "search." In 1983, the Supreme Court decided United States v. Knotts, in which police placed a beeper device in a container which was later given to the defendant and used to track his location. This act, according to the Court, was not a search.

The Knotts opinion has been applied to other technologies including global positioning systems (GPS). As law enforcement began using GPS devices on vehicles without search warrants, courts readily okayed the act, finding that it was not a Fourth Amendment act. Until the DC Circuit decided this issue in Maynard, each circuit deciding the issue had held that GPS use was not a search. The Supreme Court took the issue in United States v. Jones and held in January 2012 that it was, in fact, a search.

One of the issues that has developed from the Jones decision is whether GPS use prior to the Jones decision violates the Fourth Amendment. This is where things get a little more complicated.

Violations of the basic constitutional rule that searches require search warrants often results in any evidence acquired as a result of the violation to be excluded from trial under the exclusionary rule. However, there are several rules that allow for the evidence to be used regardless - one of them known as the good faith exception. There are several ways that the exception applies - one of them decided by the Supreme Court in Davis v. United States, which held that when there is "binding appellate precedent" that made it legal for law enforcement to do what it did, the evidence will be admissible.

Therefore, applying Davis, law enforcement in the Ninth Circuit could use GPS devices to track suspects prior to Jones because they had binding appellate precedent. Some courts have applied the principle more loosely, holding that a general consensus across the country allows the good faith exception to apply. Conversely, many courts have held that the exception does not apply because no appellate court had addressed the GPS issue. (There are exceptions to each of these and other decisions, too.)

Now, back to the Maryland case. Maryland didn't have binding precedent on GPS use specifically. The Court of Special Appeals didn't take the general consensus approach, but instead took one substantially more broad. Because, the court reasoned, the state "had recognized and applied the rationale of Knotts, the good faith exception would apply. As the court understood it, Davis "does not require there to be a prior appellate case directly on point, i.e., factually the same as the police conduct in question."

Federal courts in the Eleventh Circuit have held similarly, applying a 1981 beeper case.

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