Here’s another case involving the use of GPS tracking devices, which as regular IT-Lex readers may know, is currently a very divisive issue. The three appellants were convicted by a jury “of sixteen counts of Hobbs Act robbery, conspiracy, and use and carrying of firearms during the commission of a violent crime.” The appellants and their co-conspirators were linked to a string of armed robberies in the spring of 2011 in South Florida. At a recent appeal in front of the Eleventh Circuit, they raised three issues, the first of which matters to us:
First, Appellants challenge the admission of evidence resulting from the installation and use of a GPS tracking device without a warrant to determine the location of a Ford Expedition that was used in the commission of several robberies. Defendants contend this was an unconstitutional search in light of the Supreme Court’s holding in United States v. Jones, __ US __, 132 S. Ct. 945, 949, 181 L. Ed. 2d 911 (2012), that the installation and use of a GPS tracking device is a search under the Fourth Amendment
The appellants had previously made a similar challenge to the admissibility of the GPS-derived information, but they were unsuccessful:
In his Report and Recommendation, the Magistrate Judge found neither Defendant had a possessory interest in the [Ford] Expedition or a reasonable expectation of privacy, because they were not in possession of the vehicle at the time the GPS was installed or used to locate the car. Accordingly, neither Defendant had standing to challenge the search. The District Court adopted the Report and Recommendation over Defendants’ objections.
In the instant opinion, the Eleventh Circuit takes its lead from Michael, a Fifth Circuit case from 1981:
The court in Michael held that “installation of the beeper was permissible even if we assume the installation was a search,” because “the minimal intrusion involved in the attachment of a beeper to Michael’s van, parked in a public place, was sufficiently justified so as to satisfy any of Michael’s Fourth Amendment expectation of privacy concerns.”
In case you’re thinking that a 30+ year-old case ought not to apply in the modern technology landscape, there’s a more-recent Fifth Circuit opinion that’s cited, which keeps Michael on point:
The Fifth Circuit recently held [in Andres, 2013] police could rely on Michael “[d]espite any possible technological differences between a 1981 ‘beeper’ and the GPS device used in this case, [because] the functionality is sufficiently similar that the agents’ reliance on Michael to install a GPS device on the truck, in light of the reasonable suspicion of drug trafficking, was objectively reasonable.”
Applying the reasoning from Michael and Andres, then, the Eleventh Circuit comfortably finds that the warrantless use of the GPS tracker in the instant case was permissible:
We agree with the Fifth Circuit that Michael was clear, binding precedent that holds the electronic tracking of a vehicle without a warrant does not violate the Fourth Amendment, particularly where officers had reasonable suspicion the vehicle was involved in criminal activity.
The reasonable suspicion in this case came via the police’s reliable informant, and surveillance footage of the Expedition at the scene of other robberies.
The Eleventh Circuit also distinguishes its holding from that of the Third Circuit in Katzin, which went the other way:
[T]he technological distinctions the Third Circuit found relevant in Katzin do not apply to the facts of this case: “Unlike GPS trackers, beepers require that the police expend resources – time and manpower – to physically follow a target vehicle.” Katzin, 2013 WL 5716367 at *6. That is exactly what occurred in this case. As noted, the GPS tracker was not used to trace the movements of Defendants. The tracking device was not used until after an armed robbery was committed and the vehicle was used to flee the scene. Then the GPS tracking device was used for a very brief period of time after the robbery to pinpoint the location of the vehicle and to dispatch police to arrest Defendants several minutes after the Wendy’s armed robbery.
The appellants’ other arguments were almost-entirely shot down too, so they’re out of luck. Still, the issue of warrantless GPS tracking will continue to be of prime importance.