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1 Article for Minnesota Chiefs of Police Magazine: New Legal Requirements for GPS Tracking Devices By Peter Ivy and Peter Orput, MCPA Co-Counsel February, 2012 # # # # # Issue and Decision of the United States Supreme Court On January 23, 2012, in the case of United States v. Antoine Jones, the United States Supreme Court considered whether the warrantless use of a tracking device on the suspect s vehicle to monitor its movements on public streets violated the Fourth Amendment s prohibition against unreasonable searches. The United States Supreme Court held that installing a GPS tracking device on a motor vehicle is a search under the Fourth Amendment of the United States Constitution. Therefore, a finding of probable cause by a judge is legally required before installation. Facts of the Jones Case In 2004, the FBI installed a GPS tracking device on Jeep Cherokee belong to Antoine Jones, a co-owner of a Washington D.C. nightclub, who was suspected of narcotics trafficking. The FBI and local police then tracked Jones vehicle 24 hours a day for the next four weeks. Based on this and other evidence gathered, Jones was tried and convicted before a jury of narcotics trafficking in United States District Court and sentenced to life in prison. On appeal, Jones argued that the warrantless installation of the GPS tracking device with a search warrant was in violation of his constitutional rights and therefore his conviction for narcotics trafficking should be reversed. In 2010, the United States Court of Appeals for the District of Columbia overturned the conviction, holding that the warrantless installation of the GPS tracking unit violated Jones reasonable expectation of privacy under the Fourth Amendment. The Court of Appeals remanded the matter for a new 1

2 trial. The United States Attorney s Office appealed and the United States Supreme Court accepted review. The United States Supreme Court upheld reversal of the conviction but in a split 5-4 decision with strong divisions resulting in the justices issuing three concurring opinions. A. Justice Scalia finds that GPS installation is a physical trespass. The sharp 5-4 split revealed profoundly different legal rationales in coming to this holding. Writing the majority opinion, Justice Scalia did not examine whether such GPS technology interfered with a person s reasonable expectation of privacy under the Fourth Amendment. Rather, this majority employed a narrower analysis by simply examining the language of the fourth amendment that a person has the right to be free from unreasonable searches of their persons, houses, papers and effects and holding that a motor vehicle is an effect. 1 As used in this instance an effect is considered Justice Scalia to include items of personal property such as a motor vehicle. Because a motor vehicle is an effect, then the physical intrusion of the GPS tracking device was a search within the plain context of the Fourth Amendment requiring a finding of probable cause by a judge. Under Justice Scalia s narrow view, it is only the installation of the GPS tracking device that constitutes a search because the actual physical installation of the tracking device is plainly a trespass on personal property. Importantly, once installed, there is no further Fourth Amendment implication so long as the person is driving the motor vehicle on public roads. B. Justice Alito finds that GPS installation violates a person s reasonable expectation of privacy. Taking a more expansive view of the Fourth Amendment, Justice Alito asserted that Justice Scalia was unwisely applying 18 th -century tort law to 21 st -century technology issues. In Justice Alito s legal opinion, probable cause was required to support installation of the GPS tracking device not 1 Justice Scalia was joined by Chief Justice John Roberts and Justices Thomas, Kennedy and Sotomayor. Justice Alito wrote the minority opinion joined by Justices Ginsberg, Breyer and Kagan. 2

3 because it was merely a physical trespass on a person s effect but rather because the installation of the GPS violated a person s reasonable expectation of privacy. To Justice Alito, the larger concern with modern technology is that the government may significantly interfere with a person s reasonable expectation without necessarily causing any physical trespass to the person s personal property or effects. Indeed, as a general matter, it is known that almost all shared digital information, be it cellular phone, social networking sites or remote computer servers, can be intercepted or monitored surreptitiously without any physical intrusion on a person s personal property. This issue will become even more prevalent as emergent electronic surveillance technology continues to evolve in sophistication and capability. Practical Implications for Minnesota Law Enforcement As a practical matter, where does the Jones case now leave Minnesota law enforcement when GPS tracking devices are in fact a critical component of many investigations? First, as the United States Supreme Court is the supreme law of the land and sets the minimal threshold constitutional standards, all Minnesota law enforcement officers are now required to have an independent judge make a legal finding of probable cause in a court order. Second, while Jones requires a court order prior to the installation of the GPS tracking device, the United States Supreme Court did not hold that installation of GPS tracking devices requires a search warrant. Certainly, if your law enforcement agency, in conjunction with your local prosecutor, wants to prepare a search warrant pursuant to MINN. STAT. 626, that search warrant, properly drafted and executed, will meet and exceed the new requirements set forth by Jones. There two specific practical reasons law enforcement may still wish to use a modified version of the GPS tracking court order found in Minn. Stat. 626A.36. First, law enforcement is not limited to installing the GPS tracking unit within ten days as required with a search warrant. Second, law enforcement is not bound to file an inventory as required with a search warrant (and even if that search warrant is sealed for some period of time). 3

4 Again, while law enforcement should always consult with their local prosecutors, the authors suggest that a modified version of the order law enforcement uses under Minn. Stat. 626A.36 will comply with Jones so long as these essential components are inserted in the form: A. Officer needs to insert this language in the application /affidavit: In applying for this order, Affiant believes the facts and circumstances set forth herein establish PROBABLE CAUSE TO BELIEVE THAT A CRIME HAS BEEN OR IS BEING COMMITTED and believes the installation of an Electronic and/or Mechanical Mobile Tracking Device or System will result in the discovery of evidence which tends to show that a crime has been committed or tends to show that a particular person has committed a crime. Affiant has successfully utilized the aforementioned technology in previous investigations which has resulted in the development/collection of evidence and the apprehension of suspects. Your Affiant states probable cause is based on these facts: B. Judge needs to sign Court Order with this added language: The Court further finds that there is PROBABLE CAUSE TO BELIEVE A CRIME HAS BEEN OR IS BEING COMMITTED and the installation and use of an Electronic and/or Mechanical Mobile Tracking Device Or System will result in the discovery of evidence which tends to show a crime has been committed or tends to show that particular person has committed a crime. Conclusion Some legal scholars argue that the Fourth Amendment has generated more litigation in the United States than any other area of law, bar none. Interestingly enough, now that the United States Supreme Court has revealed the sharp philosophical split discussed above, one can be sure the litigation is still far from over. Moreover, the Minnesota Supreme Court may decide at some point to weigh in on the discussion, especially since the Minnesota 4

5 Supreme Court remains free to interpret the Fourth Amendment under the Minnesota Constitution even more liberally. Nevertheless, the practical impact of Jones makes it clear that Minnesota law enforcement must now proceed with a modified version of the MINN. STAT. 626A.36 tracking order in order to withstand Fourth Amendment challenges. 5

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