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

Read More

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.

Read More

Highlighted Paper: Orin Kerr, The Mosaic Theory of the Fourth Amendment

This week I would like to draw attention to Orin Kerr's new article on Mosaic Theory, a theory which gained notoriety after the GPS tracking case United States v. Maynard and was later implicitly accepted by some justices of the Supreme Court in United States v. Jones. I have a personal interest in this topic, since my law review article, Car-ving out the Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction, focused on Maynard and Mosaic Theory as well. This blog has also discussed Jones and Mosaic theory on numerous occasions, making the article that much more relevant.

Congratulations to Orin on his newest publication. And, if you look closely, you'll see that Orin cited a few student pieces that discussed the topic previously in a footnote on page 314.  I was excited to be among those cites, as any student author would be.

The article can be found here: Orin Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311 (2012).

The abstract for the article is below:

In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. 

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The Article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis.

Read More

When in doubt, try mosaic theory?

In United States v. Mohamud, 2012 U.S. Dist. LEXIS 151430 (Or. Oct. 22, 2012) the defendant was charged with attempt to use a weapon of mass destruction. He argued two things: (1) that evidence from an alleged date rape investigation by Oregon State Police (OSP) should be suppressed because the consent was not voluntary and the police exceeded the scope of consent, and (2) that because the OSP evidence was poisoned, the FBI's use of that evidence (since they were participating with OSP) was fruit of the poisoned tree.

The case has a number of interesting elements (I would recommend reading it), but a lot of missing info due to national security concerns. To quickly provide a synopsis of the outcome, the FBI essentially provided evidence that it would not be using any of the information from the OSP investigation against the defendant in the national security case.

Here's where it gets interesting - the defendant argued that even if the FBI wasn't going to use any evidence from OSP, what the FBI learned by participating in the OSP evidence "must have [had an effect] on the direction of the investigation, requiring suppression of all evidence obtained after an illegal search or seizure." To support this argument, the defendant attempted to invoke mosaic theory in a hail mary attempt. The defendant interviewed witnesses about mosaic theory, who explained the basics:

[T]he mosaic theory, ... the concept that while some information in specific [documents] may appear harmless to disclose when read in isolation, such information may be very valuable as part of a mosaic of information gleaned from various sources, including multiple [documents] prepared over time. The Supreme Court endorsed the mosaic theory in Sims, 

The only problem with this tactic is that mosaic theory, to the extent it has been injected in Fourth Amendment cases at all, has been used in analyzing individual's reasonable expectation of privacy, see e.g. Maynard (Orin Kerr has an upcoming Michigan Law Review article on mosaic theory and its place (or lack of a place) in Fourth Amendment jurisprudence). To the defendant's credit, mosaic theory has been used in the national security context, but to my knowledge, most often by the government to argue against disclosure of information under the Freedom of Information Act (FOIA) (even National Reporters Committee offers the defendant no support). The attorney get's an A for effort, but the court did not buy it:

The mosaic theory is not the standard, however, when deciding if tainted evidence must be suppressed. The mosaic theory is generally discussed in cases involving the state secrets privilege or the Freedom of Information Act ("FOIA") exemptions for intelligence sources and methods. In analyzing whether evidence is tainted, I will employ the standard explained in Smith, 155 F.3d 1051.

Thus, I must consider whether anything the FBI seized from the OSP investigation, or any leads it gained there, tended "significantly to direct" the national security investigation toward all evidence the FBI collected...

 My guess is that with all the attention mosaic theory has received, it was just a matter of time before it would be tried in other Fourth Amendment cases.

Read More