GPS tracking is not a search, Seventh Circuit holds.

• Author: Ziemer, David

Byline: David Ziemer

Attaching a GPS (global positioning system) tracking device to a car is not unconstitutional, the Seventh Circuit held on Feb. 2. Shortly after Bernardo Garcia was released from prison for methamphetamine offenses, a known user of meth reported to police in Polk County that Garcia had brought meth to her and her husband, consumed it with them, and told them he wanted to start manufacturing meth again. Another person told the police that Garcia had bragged that he could manufacture meth in front of a police station without being caught. A store's security video system recorded Garcia buying ingredients used in making the drug. The police also learned that Garcia was driving a borrowed Ford Tempo, and when they located it on a public street, they placed a GPS memory tracking unit underneath the rear bumper, without obtaining a search warrant. When police later removed the device, they were able to learn the car's travel history since installation of the device, which showed the car had frequently been driven to a particular tract of land. The officers obtained the consent of the tract's owner to search it, and when they did so, they discovered equipment and materials used in the manufacture of meth. Garcia was charged with manufacture of methamphetamine and moved to suppress the evidence as the fruit of an unconstitutional search, but U.S. District Court Judge Barbara B. Crabb denied the motion, holding that a warrant was not necessary if reasonable suspicion was present (although Crabb also held that the officers had probable cause as well, even if that were the standard). Garcia appealed, but the Seventh Circuit affirmed, in a decision by Judge Richard Posner, but on different grounds, concluding that placing a GPS device on a car does not constitute a seizure or a search. Holding that no seizure occurred, the court reasoned, "The device did not affect the car's driving qualities, did not draw power from the car's engine or battery, did not take up room that might otherwise have been occupied by passengers or packages, did not even alter the car's appearance, and in short did not 'seize' the car in any intelligible sense of the word." Turning to whether a search occurred, the court noted that the U.S. Supreme Court has held that the mere tracking of a vehicle on public streets by means of a beeper is not a search, but has left open the question whether installing the device directly in the vehicle converted the...