Tracking Knotts: how GPS technology is influencing traditional Fourth Amendment jurisprudence.

• Author: McGrath, Patrick B.

Cite as 12 J. High Tech. L. 231 (2011)

[Privacy is] "the most comprehensive of rights and the right most valued by civilized men."

--Justice Louis Brandeis, Olmstead v. United States, 1928 (1)

"You have zero privacy ... Get over it."

--Scott McNeal, CEO, Sun Microsystems, 1999 (2)

The Fourth Amendment has been described as a mess, "... 'a mass of contradictions and obscurities that has ensnared the 'Brethren' in such a way that every effort to extract themselves only finds them more profoundly stuck.'" (3) Among the problems associated with the Fourth Amendment is the Supreme Court's difficulty in applying the doctrine to the modern world. (4) In its quest to reinterpret eighteenth century jurisprudence to be applicable to twenty-first century innovation, the Court confronts a constant barrage of new technology. (5) While the law develops in the courtroom, law enforcement is taking advantage of the newest and most sophisticated technology in their investigations. (6) It falls to the Court to determine when unsupervised use of this technology violates the rights of the people. (7)

One of the newest tools in the law enforcement repertoire is Global Positioning System (GPS) tracking devices. (8) Police often attach these devices to a suspect's car in lieu of visual surveillance. (9) However, the issue has been raised about whether these devices can, and should, be used without first obtaining a judicial warrant. (10) On one side of the debate, law enforcement officials maintain that requiring a warrant for GPS tracking devices will create practical problems in criminal investigations, and may ultimately call into question traditional surveillance techniques that have never required a warrant in the past. (11) on the other hand, civil rights advocates argue that warrantless surveillance through GPS enhances law enforcement to a point that invades privacy and constitutes a search and seizure under the Fourth Amendment, violating personal liberties and constitutional rights. (12)

This note discusses the implications of the ongoing GPS tracking debate, attempts to demonstrate why allowing law enforcement to conduct warrantless GPS tracking will severely infringe on the publics' rights, and outlines potential judicial remedies. Section II begins with a legal history of relevant to warrantless GPS tracking issues. Section II, therefore, provides a general historical background on Fourth Amendment jurisprudence and outlines case law that is fundamental to understanding the warrantless tracking debate. Section II also provides a brief technological background by highlighting the evolution of tracking technology and its application in law enforcement. Section III provides an outline of the most recent cases on the topic, focusing on the federal courts' different approaches to warrantless GPS tracking. Section IV analyzes the strengths and weaknesses of the courts' different approaches, highlights a number of factors courts should consider, and proposes a solution to the GPS debate based on reasonable suspicion. Section V offers a final thought on the status of warrantless GPS tracking in our society.

1. History

   1. Relevant Law

      i. Development of Fourth Amendment Law

      Ratified in 1791, the Fourth Amendment was proposed by James Madison in order to ensure the security "of the people ... in their persons, houses, papers, and ... [effects], from all unreasonable searches and seizures...." (13) For the first century and a half after ratification the Fourth Amendment was a primarily dormant doctrine. (14) The earliest Fourth Amendment cases did not arise before the Supreme Court until 1855 and 1877, but it wasn't until 1886 that the Court heard the first Fourth Amendment case of legal significance. (15) In total, the Court heard only five Fourth Amendment cases in the nineteenth century. (16) Originally, the Bill of Rights applied only to the Federal Government, but not the states. (17) However, the Federal Government rarely conducted criminal investigations that would implicate the Amendment. (18) The Fourth Amendment was eventually incorporated against the states through the Fourteenth Amendment. (19)

      ii. Modern Evolution of the Fourth Amendment

      Under early twentieth century Fourth Amendment jurisprudence, violations of the Fourth Amendment were evaluated via a trespass analysis. (20) Writing for the Court in 1928, Chief Justice Taft noted that surveillance that did not involve physical trespass or physical seizure could not violate the Fourth Amendment. (21) In deciding whether a Fourth Amendment search occurred, the Supreme Court applied a simple test; they asked for the location of the law enforcement officers at the time of the alleged search. (22) Unless law enforcement committed a physical trespass into one's "person[], house[], papers, or effects, their actions were not considered a search and thus did not violate the Fourth Amendment." (23)

      Fourth Amendment analysis took a dramatic turn in 1969 when the Warren Court expressly overruled previous Supreme Court precedent in a case that is still controlling today, Katz v. United States. (24) In Katz, the defendant was charged with violating a federal statute that prohibited transmitting gambling information over the telephone across state borders. (25) In order to build a case against the defendant, the government recorded Katz's conversations by placing an electronic listening device to the outside of the public telephone booth he used to make his calls. (26) The Court of Appeals, following Supreme Court precedent, ruled that no Fourth Amendment violation occurred because "there was no physical [intrusion] into the area occupied by [the defendant]." (27) The Supreme Court reversed, however, concluding that:

      the underpinnings of [previous precedents] have been so eroded by our subsequent decisions that the 'trespass' doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. (28) With this decision, the Court rejected a Fourth Amendment analysis based on trespass and adopted one centered on an expectation of privacy. (29)

      The Supreme Court's decision to overrule previous precedent hinged upon their interpretation that "[t]he Fourth Amendment protects people, not places." (30) The Court theorized that the fundamental purpose of the Fourth Amendment was to protect citizens from invasions of their privacy. (31) In order to support this theory, the Katz Court developed a new Fourth Amendment analysis, declaring that a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. (32) This test is commonly expressed in two prongs: 1) for a search to occur, an individual must have a subjective expectation of privacy; and 2) that expectation must be objectively reasonable. (33)

      The first prong of the test relies upon personal conduct. (34) In order to find a subjective expectation of privacy, the court must make a finding that the individual has taken affirmative steps to keep their actions private. (35) The second prong of the Katz test is a determination of what "society is prepared to recognize as reasonable." (36) "According to the Court, '[t]he test of legitimacy is not whether the individual chooses to conceal assertedly "private" activity. Rather, the correct inquiry is whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment.'" (37) The majority of the Court's Fourth Amendment analysis focuses on whether a search occurred under the objective prong of the Katz test. (38)

      If a court finds that a search has taken place, searches that are conducted without a warrant are considered per se unreasonable, and thus are considered a violation of the Fourth Amendment. (39) In order to obtain a search warrant, law enforcement first needs to demonstrate probable cause that a person has engaged in criminal activity. (40) However, certain exceptions to the warrant requirement exist that allow police to conduct searches without a warrant, and occasionally, without probable cause. (41) Searches courts allow to take place without probable cause generally invoke a lesser threshold inquiry, known as reasonable suspicion. (42) The reasonable suspicion standard is a byproduct of Terry v. Ohio, where the Supreme Court determined that police officers may conduct investigatory stops of people they reasonably suspect of committing criminal activity. (43) Although a lesser standard than probable cause, reasonable suspicion is more than an "inchoate and unparticularized suspicion or 'hunch', " and law enforcement must demonstrate that they had "specific and articulable facts, ... taken together with rational inferences from those facts" that criminal activity was afoot. (44)

      iii. The Fourth Amendment and Emerging Technology

      Technology is a great resource for law enforcement because it has the power to significantly enhance the efficiency of criminal investigations. (45) Since the adoption of the Katz test, the Supreme Court has analyzed a number of new technological devices to determine whether their use in law enforcement constitutes a search under the Fourth Amendment. (46) In two cases, the Court considered whether visual surveillance via an airplane constituted a Fourth Amendment search. (47) In both Ciraolo and Dow Chemical, the Court determined that no search took place because no reasonable expectation of privacy was violated. (48) In reaching their decision, the Court pointed to the fact that by observing the activities below the airplane, law enforcement was merely enhancing their senses by gaining a better vantage point. (49) The Court went on to note that it was not...