Case o' The Week: Tracking the Fourth Amendment - DC's Maynard and GPS Tracking

We've bemoaned the irony before: the Ninth Circuit is home to the world's most-innovative technology pioneers, yet often trails the nation in its Fourth Amendment jurisprudence on electronic surveillance. A slow week for cases in the Ninth lets us turn East to illustrate the point.

In Maynard, the D.C. Circuit this week delivered the gold standard for Fourth Amendment analysis of GPS tracking. United States v. Maynard, __ F.3d __, No. 08-3030 (D.C. Cir. Aug. 5, 2010), decision available here. The Maynard opinion politely rejects the (less-compelling) analysis of the Ninth's own recent Pinedo-Moreno decision, and presages a Supreme Court battle on GPS tracking.

Players: Big win for, among others, the Bay Area’s own Electronic Frontier Foundation (EFF).

Facts: Co-D Jones was convicted for his role in a cocaine conspiracy. Slip. Op. at 3. The Feds’ investigation of the case had included warrantless, 24-hour, GPS surveillance of Jones's jeep. Id. at 16.

Issue(s): “Jones argues his conviction should be overturned because the police violated the Fourth Amendment prohibition of ‘unreasonable searches’ by tracking his movements 24 hours a day for four weeks with a GPS device they had installed on his Jeep without a valid warrant.” Slip Op. at 16.

Held: “Jones argues the use of the GPS device violated his ‘reasonable expectation of privacy,’ Katz, . . . and was therefore a search subject to the reasonableness requirement of the Fourth Amendment. Of course, the Government agrees the Katz test applies here, but it argues we need not consider whether Jones’s expectation of privacy was reasonable because that question was answered in United States v. Knotts, 460 U.S. 276 (1983), in which the Supreme Court held the use of a beeper device to aid in tracking a suspect to his drug lab was not a search. As explained below, we hold Knotts does not govern this case and the police action was a search because it defeated Jones’s reasonable expectation of privacy.” Id. at 16 (Katz full cite omitted).

Of Note: With Maynard the DC Circuit splits with the Ninth on warrantless GPS searches. See United States v. Pinedo-Moreno, 591 F.3d 1212 (9th Cir. 2010); see also blog here.

The DC Circuit has the much better argument. As the Maynard decision trenchantly observes, the Ninth’s decision failed to distinguish between short- and long-term surveillance, and did not wrestle with the core holding of the controlling Supreme Court decision in Knotts. Maynard, Slip. Op. at 20.

In light of the novel issue and circuit split, look for the Supremes to take up the issue soon (and, hopefully, adopt Maynard’s better analysis and result). Preserve GPS challenges in the Ninth; Pinedo-Moreno will hopefully join the Circuit’s list of Supreme Court reversals.

How to Use: There are two key, and persuasive, theses in Maynard that are invaluable for Fourth Amendment challenges to the abuse of technological surveillance. First, the Court explains that a “reasonable explanation of privacy” doesn’t ask what a private citizen could do to survey another, but rather “what a reasonable person expects another might actually do.” Id. at 23 (emphasis added). In Maynard, a stranger could have theoretically tracked Jones’s movements over a course of month – but the “likelihood a stranger would observe all those movements is not just remote, it is essentially nil.” Id. at 26 (emphasis added).

Next, the Court emphasizes that the whole of the lengthy surveillance is a greater infringement than the sum of its parts. Id. at 27. In Maynard, that meant that “[p]rolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.” Id. at 29.

Those two insights apply with equal force to other novel technological surveillance – like obtaining cell-phone location data without a search warrant. Mine Maynard for these practical insights and export them to other Fourth Amendment challenges.

For Further Reading: GPS tracking is such a quaint technology: frankly, why bother, anymore? Much easier to get the suspect’s cell-phone location through its ping to the nearest cell tower, and track ‘em that way.

The Feds are now getting cell-phone location data with a staggering number of sealed applications in federal court, under a novel “hybrid” showing of suspicion far lower than probable cause. Are you troubled by the idea that the Feds are secretly tracking your movements via your phone, with very little judicial oversight? Bothered by the idea that the defense never even knows that this surveillance took place?

So is Magistrate Judge Stephen Wm. Smith (S.D. Tx).

Read Judge Smith's testimony before Congress here. His testimony is easily the most accessible, cogent, and persuasive summary of the hydra of statutes that bear on cell-phone tracking: a must-read for anyone wading into this important morass.


Image of the a world SMS tracking device from http://vehicle-tracking-usa.com/store/worldtracker-sms-gps-vehicle-tracking-system,Product.asp . Image of the "Electronic Surveillance Courthouse" from the Magistrate Judge Smith's testimony at http://judiciary.house.gov/hearings/pdf/Smith100624.pdf .


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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