Gps Surveillance, the Right to Privacy, and the Fourth Amendment
| Publication year | 2011 |
| Pages | 55 |
2011, December, Pg. 55. GPS Surveillance, the Right to Privacy, and the Fourth Amendment
December 2011
Vol. 40, No. 12 [Page55]
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
About the Author
Scott W. Turner is the Assistant District Attorney for the Fifth Judicial District, which covers Summit, Eagle, Lake, and Clear Creek Counties-(970) 453-2327, sturner@da5.us.
This article analyzes how the Fourth Amendment affects the use of GPS technology by law enforcement. It discusses recent court decisions and legislation and how courts previously have decided cases involving other types of technology.
"It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advent of technology."(fn1)
When Yasir Afifi, a college student in San Francisco, went to have his oil changed, his mechanic noticed a strange wire hanging underneath the car. The wire was attached to a box-like device that was attached to the car with a magnet. When Afifi posted pictures of the device online, he discovered it was a global positioning system (GPS) tracking device. Two days later, FBI agents went to Afifi's house and demanded that he return their property.(fn2)
Surveillance techniques have always gone hand in hand with innovations in technology. From the simple use of binoculars to observe someone afar during the day to night vision equipment that allows visual inspection of somebody in virtual darkness, those seeking to keep track of the whereabouts of another have found their jobs getting easier and easier. The advent of new surveillance technologies has raised new issues of privacy, typically in the context of whether these new techniques are "searches" under the Fourth Amendment and therefore require probable cause and a warrant, but also occasionally whether they are unreasonable even when supported by probable cause and a warrant.
This article surveys the Fourth Amendment jurisprudence of surveillance and discusses various state and federal cases addressing the privacy challenges of new technologies such as GPS. It also suggests ways in which Colorado lawyers facing these issues might marshal their arguments for and against the propriety of such searches.
Surveillance and the Fourth Amendment
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated."(fn3) It is clear that ordinary visual surveillance is permitted under the Fourth Amendment.(fn4) The U.S. Supreme Court initially decided that surveillance must include an actual physical trespass for there to be a search,(fn5) but the issue has become fuzzier as technology has advanced. In Katz v. United States,(fn6) the Court held for the first time that an actual physical intrusion is not required for a search to take place.(fn7) In holding that a warrant was required for eavesdropping when the person had a reasonable expectation of privacy, the Court recognized such an expectation could be defeated solely by electronics.(fn8)
Bugs and Beepers
In the 1980s, the U.S. Supreme Court decided two cases in which it analyzed the Fourth Amendment consequences of the use of radio transmitters. In United States v. Knotts,(fn9) a radio beeper was placed in a chemical drum. Law enforcement was able to follow the drum from the point of purchase to its delivery via automobile to the defendant's cabin.(fn10) The Court likened the use of a beeper in these circumstances to simply following a vehicle on public streets and highways.(fn11) Because a person's movement on a public road would not invoke any expectation of privacy, law enforcement would not be prohibited from "augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case."(fn12)
The Court therefore held that the placement and monitoring of the beeper was not a search under the Fourth Amendment, and affirmed the defendant's conviction. The Knotts Court was careful to refrain from addressing the broader question of whether the sheer length of continuous monitoring by a beeper-the so-called "24 hour issue"-would change its view about the beeper not being a search.(fn13)
One year later, in United States v. Karo,(fn14) the Supreme Court was faced with a more vigorous use of the same beeper technology it had approved in Knotts. Law enforcement again placed a radio beeper on a chemical container, but this time they used it not to locate a specific residence but rather to monitor the container while inside the residence.(fn15) Although the Court determined, per Knotts, that the installation of the beeper and its subsequent tracking did not violate the Fourth Amendment, it concluded that tracking the beeper while it was inside the residence was unconstitutional. The Court stated that the difference between these facts and those in Knotts was that the interior of the residence, unlike the location of a vehicle, is not open to visual surveillance.(fn16) The beeper in Knotts told law enforcement nothing about the interior of the house, while the beeper in Karo confirmed that it was in the house.(fn17)
After Knotts and Karo, the Colorado Supreme Court addressed the issue of tracking beepers in People v. Oates.(fn18) The facts of Oates were very similar. With the consent of the business owners, law enforcement officers in Texas placed a beeper in a chemical drum that was to be purchased by defendant.(fn19) The beeper was tracked to Colorado. Once it was tracked to a particular address, monitoring of the beeper stopped.(fn20) When a law enforcement officer drove by the house, he observed the van that had been tracked from Texas and he smelled an odor indicative of a methamphetamine lab.(fn21) A warrant was subsequently executed on the residence.
Acknowledging that under Knotts and Karo the beeper placement was not a search under the Fourth Amendment, the Colorado Supreme Court concluded that it was a search under Article II, § 7 of the Colorado Constitution, which generally affords greater protections against unreasonable searches and seizures than the Fourth Amendment.(fn22) In its analysis of the installation of the beeper, the Oates Court noted that the defendant had partially paid for the chemical drum at the time the beeper was installed.(fn23) Once he took possession of the drum, he "retain[ed] the exclusive power to use and dispose of his goods as he [saw] fit."(fn24) It also saw...
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