RE: [infoguys-list] GPS tracking
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From: Slipinn@... [mailto:Slipinn@...]
Sent: Thursday, May 05, 2011 3:57 PM
Subject: [infoguys-list] GPS tracking
Case Law Update
The Seventh Circuit Finds Warrantless GPS Tracking Constitutionally
The Seventh Circuit held that a warrantless GPS tracking session, which
lasted sixty (60) hours and tracked a suspect's journey from Arizona to
Illinois did not violate the Fourth Amendment.
In 2008, Immigration and Customs Enforcement (ICE) officers and local
police in Phoenix, Arizona came to believe that Juan Cuevas-Perez was involved
in the illicit distribution of drugs. On Feb. 6, 2009, Detective Matthew
Shay placed a Global Positioning System (GPS) tracking device on
Cuevas-Perez's Jeep Laredo. The GPS device was programmed to track the car's movements,
and relay an update to Detective Shay every four minutes. Detective Shay
did not have a warrant which authorized placing a GPS device on
Shortly after the GPS device was installed, Cuevas-Perez set out on a trip
from Arizona which ultimately lasted 60 hours and ended in Illinois. While
Cuevas-Perez was in Missouri, the GPS batteries began to run low. Detective
Shay asked local ICE agents to begin visual surveillance on Cuevas-Perez's
Jeep. They did so until he crossed the Illinois state line, at which point
the Illinois State Police (ISP) took up visual surveillance.
ICE officers asked the ISP to pull Cuevas-Perez over and search the vehicle
if any opportunity to do so presented itself. ISP officers followed
Cuevas-Perez for 40 miles before they pulled him over for remaining in the
left-hand passing lane, a minor traffic infraction under Illinois law. A police
officer with a drug-sniffing dog was dispatched to the scene. The dog
alerted officers that there were probably narcotics in the vehicle. Police
officers then conducted a search and found nine packages of heroin hidden in door
panels and the ceiling.
Cuevas-Perez was arrested and charged with possession of heroin with intent
to distribute. At trial in the United States District Court for the
Southern District of Illinois, Cuevas-Perez sought to suppress the evidence,
arguing that the GPS data had been obtained in violation of the Fourth
Amendment. The district court denied the suppression motion. Cuevas-Perez pled
guilty pending an appeal of the suppression denial to the United States Court
of Appeals for the Seventh Circuit.
On appeal, Cuevas-Perez argued that the evidence against him should be
suppressed under United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). In
Maynard, the DC Circuit held that continual GPS monitoring for 28 days
violated the Fourth Amendment. The DC Circuit reasoned in Maynard that "unlike
one's movements during a single journey, the whole of one's movements over
the course of a month is not actually exposed to the public because the
likelihood anyone will observe all those movements is effectively nil."
Furthermore, an extended GPS monitoring could effectively reveal a person's
lifestyle and personal affairs; in the words of the Maynard court, "[r]epeated
visits to a church, a gym, a bar, or a bookie tell a story not told by any
single visit, as does one's not visiting any of these places over the course
of a month." Thus, Cuevas-Perez argued, lengthy warrantless GPS monitoring
violated the Fourth Amendment and the evidence against him should be
The Seventh Circuit rejected this reasoning and upheld the district court's
decision to deny the motion for suppression. The court of appeals noted
that the Maynard decision explicitly states that an individual's movement in
a single journey, such as Cuevas-Perez's road trip, does not reveal the
whole of that person's movements, which in turn is what the DC Circuit found
to implicate the Fourth Amendment. Even if that were not the case, the court
of appeals distinguished Cuevas-Perez's case from Maynard by noting that
the observation in "Maynard was much lengthier than the 60 hour
surveillance" of Cuevas -Perez.
Finding Maynard unpersuasive, the court of appeals relied primarily relied
on United States v. Knotts, 460 U.S. 276 (1983) and United States v.
Garcia, 474 F.3d 994 (7th Cir. 2007) in its reasoning.
In Knotts, the Supreme Court "held that the use of a beeper device to
track a drug suspect did not violate the Fourth Amendment because it did not
amount to a search or seizure [since] . . . ‘[a] person traveling in an
automobile on public thoroughfares has no reasonable expectation of privacy in
his movements from one place to another.'"
In Garcia, the Seventh Circuit explained that GPS tracking did not
constitute a search because "GPS tracking is on the same side of the divide with .
. . surveillance cameras and . . . satellite imaging, and if what they do
is not searching in Fourth Amendment terms, neither is GPS tracking."
Instead, GPS surveillance merely substitutes "for an activity, namely following a
car on a public street, that is unequivocally not a search within the
meaning of the [Fourth Amendment]."
From these two cases, and a realization that Maynard explicitly did not
apply to a single journey, the Seventh Circuit held that the GPS monitoring
of Cuevas-Perez's journey from Arizona to Illinois did not violate the Fourth
Amendment. The information provided by the GPS was exposed to the public,
could have been provided by visual monitoring, and did not reveal any
information in which Cuevas-Perez had an objective expectation of privacy.
However, the appellate court acknowledged that GPS tracking is a "Fourth
Amendment frontier" and that it will be up to future cases to "delineate the
boundaries of the permissible use of this technology."
You can read the case by _clicking here._
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