Constitution Daily

Smart conversation from the National Constitution Center

Courts disagree over constitutionality of GPS searches

November 5, 2010 by Donald Applestein Esq.


The cases from the DC Circuit and Ninth Circuit Courts have similar facts.  Law enforcement officials, without a court-issued warrant, went on a person’s private property in the middle of the night and attached a GPS device to the person’s personal vehicle for the purpose of tracking him?

In the Ninth Circuit case, devices were installed on seven occasions over a period of four months.  On two of those occasions the vehicle was parked on the person’s property. On the remaining occasions it was parked on public streets or in a parking lot.  In each case, the vehicle was tracked and drugs were found.  The Defendants in both cases pled guilty but reserved the question of the constitutionality of the searches.  In the DC Circuit case, agents went on the person’s property and attached the device where it remained for 28 days.

How long is a "reasonable" search?

The Ninth Circuit ruled that since the agents had not actually entered the person’s home, the “search” was not “unreasonable.” Nor was the undercarriage of the vehicle entitled to protection.  The absence of “No Trespassing” or “Private Property” signs or fences also influenced the court’s decision in finding there was no expectation of privacy.  The court reasoned that since the police could have physically tracked the vehicle, it made no difference that they used an electronic device. The court found the search constitutional.

In the DC Circuit case, the Defendant argued that the GPS device violated his “reasonable expectation of privacy.” (Based on U.S. vs. Katz – one of the cases in the National Constitution Center’s Supreme Court display.)

The DC Circuit found the device was a “search” because of the length of time it was attached - 28 days.  The Court found that there was no “protected zone” for a single trip in the public, on public roads or when tracked for short period of time (undefined by the Court).  According to the Court, the totality of those movements over the 28 days was beyond what a  “reasonable” person’s might think they were being tracked. Since reasonable person would not expect to be tracked for 28 days, this time period fell within the zone of a reasonable expectation of privacy.  The court found the search unconstitutional.

Which court do you think is right?

Is it OK for law enforcement officials without a warrant to go onto a person’s property for the purpose of installing a tracking device?

In one case the court said 28 days is too long. Presumably a short time would be constitutional.   At what point in time does such a search violate the Fourth Amendment?   7 days?   15 days?   21days?  More than 28 days?

Photo credit: Flickr user avlxyz.

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