Sunday, November 28, 2010

GPS Surveillance, Part III - Meaning and Other Rulings

I went on ad nauseum two posts (and many weeks) ago about the Ninth Circuit case of United States v. Pineda-Moreno.  I stopped short (I think) of offering any of my own interpretations.  No longer:

If you live in the Ninth Circuit (which is huge; it includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands), post "No Trespassing" signs at the end of your driveway - or all around your property - if you want to prevent entry.  Those signs will give you a much stronger argument that agents who entered onto your property under cover of night to place a tracking device on your vehicle were operating unlawfully.

However, if your car is ever found in a public place (at a parking meter, for example), law enforcement officials can place a tracking device on your car to trace its location, and such action is not unlawful.

There is an argument (springing from Judge Kozinski's dissent) that GPS trackers are an unlawful extension of the law enforcement's use of technology, but so far the rest of the Ninth Circuit doesn't agree with him. (Other courts do, though; see below.)

Of course, if you are not suspected of any criminal activity, this should not concern you, except on ideological grounds (where you should be very concerned, no matter your criminal or law-abiding tendencies).

Similar rules apply if you live in the Seventh (Illinois, Indiana, and Wisconsin) or Eighth (Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North Dakota) Circuits.  See United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); Unites States v. Marquez, 605 F.3d 604 (8th Cir. 2010).  Both cases are discussed briefly below.

The Ninth Circuit, though, is not the only court with an opinion on this issue. The United States Court of Appeals for the District of Columbia Circuit has also weighed in, and the judges on the east coast (not surprisingly) feel differently.  If you live on that side of the country, you may have slightly more protection from government investigation as to your whereabouts.  What happens when one Court of Appeals says one thing and a different Court of Appeals says something else?  Usually one or more cases with similar facts will find their way to the Supreme Court of the United States.  If SCOTUS hears such a case, their ruling will become binding on all circuit courts.  If they decline to hear it, the difference of opinion, known as a split in the circuits, will continue.

United States v. Maynard
In United States v. Maynard (the full opinion is available here), the DC Circuit Court of Appeals heard the arguments made on behalf of Lawrence Maynard and Antoine Jones.

Mr. Jones and Mr. Maynard were both under investigation for narcotics violations by the joint FBI-Metropolitan Police Department Safe Streets Task Force.  They were arrested and both defendants, along with a number of their acquaintances, were charged at the trial level with conspiracy to distribute and conspiracy to possess with intent to distribute a large amount of cocaine or cocaine base.  Both were convicted in a joint trial.  Mr. Maynard's appeal does not address the GPS argument, so is not significant for these purposes.  (Mr. Jones also made a number of points on appeal which are not significant here, but include alleged error in the admission of evidence secured by wiretap and and by a search incident to a traffic stop, as well as a number of alleged errors at trial.)

Mr. Jones's conviction was secured with heavy reliance by the government at trial on a GPS tracking device which had been placed on his vehicle.  On appeal, Jones argues that this tracking - which went on 24 hours a day for 28 days, with the device automatically transmitting and recording his position at regular intervals - constituted a search which violated his reasonable expectation of privacy under the Fourth Amendment, and was therefore illegal since the agents lacked a search warrant at the time the device was activated.

(1) Did the use of the GPS device constitute a search?

  (a) Knotts is not controlling precedent
The government's argument relied on United States v. Knotts, in which the United States Supreme Court found that using a beeper device to aid in the physical tracking of a vehicle did not constitute a cognizable "search" because a person traveling on public roads has no reasonable expectation of privacy in his journey from one point to another.  The government's argument was that the GPS device was essentially the same as the beeper in Knotts in that it aided the law enforcement agents in their attempts to track the whereabouts of their suspects, and that the GPS was not the type of mass surveillance that the Supreme Court was concerned about in Knotts.

The court here disagreed.  The beeper, they said, was for use only during a "discrete journey." The Supreme Court had specifically reserved the question of "whether a warrant would be required in a case involving 'twenty-four hour surveillance,'" and not just the type of "mass surveillance" that the government was advocating for (such as blanket wiretaps), but even for twenty-four hour surveillance of an individual.  The court cautioned that "if a warrant is not required, then prolonged 'twenty-four hour surveillance of any citizen of this country will be possible, with judicial knowledge or supervision.'"

The court pays homage to United States v. Pineda-Moreno (previously discussed at some length), United States v. Garcia, and United States v. Marquez.  The Seventh Circuit Court of Appeals in Garcia upheld the use of the GPS device, but Mr. Garcia had failed to argue in that case that he had a reasonable expectation of privacy over the totality of his movements for the duration of the surveillance; his only argument was that the placement of the device which led to the tracking was a violation of the search requirements of the Fourth Amendment.  The court in Garcia found the use of the GPS device to be more similar to tracking via stationary mounted cameras or satellite (not a search) than to a listening device on a phone (a search), and hence found no Fourth Amendment violation.

In Marquez, the Eighth Circuit Court of Appeals agreed with the Seventh and Ninth Circuits when faced with an argument similar to the one made in Garcia.  The court, despite finding that the defendant lacked standing to challenge the use of the GPS device, stated that installation of a non-invasive GPS tracking device for a reasonable period of time to a car parked in a public space did not require a warrant.

  (b) Were Jones's whereabouts exposed to the public?
Since Knotts doesn't control the outcome in this case, the court must analyze Mr. Jones's expectation of privacy.  The requirement imposed by the case law stemming from the Fourth Amendment that law enforcement officials be armed with a warrant generally does not apply where a person has no reasonable expectation of privacy.  The question of whether one's actions are "exposed" can be considered in light of either actual exposure or constructive exposure.

    (i) Actual Exposure
When examining actual exposure, the court asks "not what another person can physically and may lawfully do, but rather what a reasonable person expects another might actually do."  The court illustrates the application of this question by looking at a number of different cases, including United States v. Kyllo and United States v. Gbemisola.

In Kyllo, "the Court held use of a thermal imaging device defeats the subject's reasonable expectation of privacy, 'at least where...the technology in question is not in general public use.'"  Thermal imaging was not in public use - it was not something "a reasonable person expects another might actually do" - therefore it violated the subject's reasonable expectation of privacy.

In Gbemisola, in which the subject and contraband were located in the rear seat of a taxi, the court declared that "'one cannot have a reasonable expectation of privacy concerning an act performed within the visual range of a complete stranger, [so] the Fourth Amendment's warrant requirement was not implicated."  The implied corollary in Gbemisola is that, had the act taken place out of view of the public, there would have been an expectation of privacy.

The government's argument in Maynard is simple: knowing exposure of one's movements, movements on public roads visible to anyone who wanted to look, is not subject to Fourth Amendment protection.  Applying the principles from Kyllo and Gbemisola to Mr. Jones's case, the court finds differently: "the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil."  Jones's movements were not actually exposed.

    (ii) Constructive Exposure
The government makes no argument for constructive exposure, but the court acts on its own initiative to explore the issue.  It relies on United States Department of Justice v. Nation Reporters Committee, in which a Freedom of Information Act request for documents was denied: "Although the 'individual events in those summaries [were] matters of public record,' ...the subjects had a privacy interest in the aggregated 'whole' distinct from their interest in the 'bits of information' of which it was composed."

The court's decision here, while wise, is not particularly well-stated.  "The whole of one's movements over the course of a month is not constructively exposed to the public because, like a rap sheet, that whole reveals far more than the individual movements it comprises."  Prolonged surveillance, which allows the viewer to see patterns of behavior, is vastly more revealing about a person that one-time observation.  "A reasonable person," they said, "does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain 'disconnected and anonymous.'"  Therefore, neither were Jones's movements constructively exposed to the public.

  (c) Was the expectation of privacy reasonable?
The court frames this question within the bounds of a case it previously decided, Reporters Comm. for Freedom of Press v. AT&T: "the Fourth Amendment ... secur[es] for each individual a private enclave, a 'zone' bounded by the individual's own reasonable expectations of privacy."

The government, as was its habit in Maynard, argued that Jones's movements took place on public roadways, and therefore Jones had no reasonable expectation of privacy.  The court fell back on its analysis of actual and constructive exposure, reasoning that no one would expect every movement they made over the course of a month to be aggregated; even if someone observed a single movement, the subject of the observation would expect the others to remain disconnected from that one.

The facts of the case and its own previous analysis lead the court to the conclusion that "[s]ociety recognizes Jones's expectation of privacy in his movements over the course of a month as reasonable...."

  (d) Visual Surveillance
The court takes a bit of time to distinguish between visual surveillance and the use of a GPS tracking device.  It acknowledges the efficiency of GPS tracking, but also notes that the low cost and manpower requirements attendant thereto render it a new type of intrusion into the lives of citizens, not the type of intrusion which had been previously contemplated.  The government, for its part, failed to point out a single instance of prolonged visual surveillance that would be upset by the court's ruling in Jones's favor here, and the court reserves that question for a later time.

(2) So there was a search which was otherwise unreasonable.  Was it rendered reasonable by an exception to the Fourth Amendment rule?
The "automobile exception" to the Fourth Amendment warrant requirement allows the search, without a warrant, of an automobile if the "car is readily mobile and probable cause exists to believe it contains contraband."  The government argued that this exception applies because the device was attached to a vehicle.

Mr. Jones argued, and the court agreed, that the exception does not allow installation of a tracking device.  The exception's allowance of search upon the existence of probable cause is much too narrow to support the government's position.

(3) The evidence was admitted in error.  But was the error harmless?
Evidence obtained from the GPS tracking device was used in Mr. Jones's conviction at the trial level.  If the government could show that the district court's error in admitting the evidence despite its unconstitutionality was harmless, the decision would not be overturned.  The government failed to meet that burden, and the Court of Appeals found that it is unlikely Mr. Jones would have been convicted without the GPS evidence.

The court reversed Mr. Jones's conviction.

Application for Rehearing En Banc
Since the reversal of Mr. Jones's conviction, the government applied to the DC Circuit Court for a rehearing en banc.  The petition was denied.

In support of the denial, Judges Ginsburg, Tatel, and Griffith stated that the government failed to meet either of the requirements for the automobile exception to the Fourth Amendment's warrant requirement, so they needn't reconsider the issue.  Additionally, the government's argument that the case calls the admissibility of evidence obtained from prolonged visual surveillance is faulty because the court specifically reserves that question.

In a dissent written by Chief Judge Sentelle and joined by Judges Henderson, Brown, and Kavanaugh, those judges express their concern that the DC Circuit now stands in opposition to the other circuit courts which have ruled on the issue of GPS surveillance.  Further, they feel that the panel's decision stands in opposition to the Supreme Court's opinion in Knotts, which is binding precedent and must be followed.  They are unconvinced by the panel's distinction between Knotts and Maynard, saying that the only difference between the two types of monitoring is the volume of information obtained.  Such a minute difference, they argue, is not sufficient to render a new line of jurisprudence.

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