Earlier this year, the Wisconsin and New York state courts split on whether police may install a covert GPS tracking device on a suspect's car without a warrant. On September 17, the Massachusetts Supreme Judicial Court addressed the GPS tracking device issue, rulingthat Article 14 of the Massachusetts Declaration of Rights requires a warrant before such a device may be installed and used.

The defendant, Everett Connolly, was a suspected drug dealer and who was investigated by police for more than a year. The investigation included surveillance and controlled drug purchases by confidential informants and, towards the end of the surveillance period, by an undercover officer. Based on this investigation, the police applied for a warrant to place a GPS tracking device on Connolly's van for fifteen days. The application was granted and Connolly was eventually arrested (based on a separate arrest warrant), tried and convicted. He argued to the SJC that, among other things, "surreptitious GPS monitoring without a warrant constitutes an unreasonable search and seizure that violates the Fourth Amendment . . . and art. 14 of the Massachusetts Declaration of Rights." He based this argument on the theory that, although police had a search warrant, they continued to obtain information from that warrant after it had expired.

Read on for more detail and analysis of the SJC's opinion.

The majority ruled that "installation and use of the GPS device in the circumstances of this case was a seizure requiring a warrant," but held that the warrant obtained had not expired. After declining to make a ruling under the Fourth Amendment, the majority concluded that a warrant was required because the installation and use of a GPS tracking device on a vehicle constituted a seizure under art. 14 of the Massachusetts Declaration of Rights. Regarding installation, the majority reasoned that it required entry by police into the van for an hour, operation of the van's electronic system and power from the vehicle. Regarding use, the majority reasoned that the government's use and control of the vehicle to track its movements interfered with the defendant's interest in the vehicle, as the police were using private property to obtain information for their own purposes.

Three justices concurred in the judgment. They agreed with the majority that installation of a GPS device constituted a seizure requiring a warrant. However, they argued that the use of a vehicle to conduct GPS monitoring did not constitute a seizure of the vehicle; rather, they believed that such use invaded the reasonable expectation of privacy of any person authorized to drive the vehicle, and that such invasion was better characterized as a search. According to the concurrence, only by focusing on the "privacy interest at risk from contemporaneous GPS monitoring . . . will we be able to establish a constitutional jurisprudence that can adapt to changes in the technology of real-time monitoring, and that can better balance the legitimate needs of law enforcement with the legitimate privacy concerns of our citizens.

As I noted in an earlier post, the use of GPS devices to monitor suspects' movements is bound to become a hot-button issue over the next few years. The courts that have addressed the issue have expressed great concern about the threat to privacy posed by the rapid progression in monitoring technology. What is interesting about the SJC's decision is that it appears the majority was attempting to craft a more narrow decision by basing its holding on the seizure of the vehicle, which implicates an individual's property interest. The concurrence's position is arguably broader, more subjective, and more flexible, as it requires analysis of a person's expectation of privacy. One wonders, then, if the issue behind the scenes with the SJC was not what result to reach, but how broad to stretch in the opinion.