GPS Tracking of Vehicle Neither a Search nor a Seizure (At Least Not on the Facts of This Case)

United States v. Hernandez, No. 10-10695 (5th Cir. July 18, 2011) (Jones, Higginbotham, Southwick)

Let's suppose police decide to track a suspect by surreptitiously attaching a GPS device to his vehicle.  Let's also suppose that the police did not obtain a warrant to conduct this electronic surveillance.  Fourth Amendment violation?

Actually, there's no need to suppose such a scenario, because that's what happened in Hernandez. DEA agents in Dallas were investigating Hernandez's brother, Angel, for drug-trafficking. To that end, they slapped a "slap-on tracker"on the underside of Angel's pickup truck.  What's a slap-on tracker, you ask?

This unsophisticated battery-operated GPS device . . . was accurate to 50 yards, but could neither relay a precise address nor transmit a signal from an enclosed area like a garage. Instead of a continuous signal, the device emitted a “ping” at intervals ranging from 15 minutes to two hours.

Two days later, the agents intercepted a phone call that tipped them that Hernandez was going to drive Angel's truck to California to pick up some drugs.  The tracker then showed the pickup heading westbound. California DEA agents located the truck at a hotel and set up visual surveillance.  They saw Hernandez load several packages into the truck.  Local police pulled Hernandez over for traffic violations, and a consent search turned up 20 pounds of methamphetamine.
 
Hernandez moved unsuccessfully to suppress the meth, and appealed.
 
Hernandez argued that both the placement and the use of the GPS device violated his Fourth Amendment rights. The court first held that he lacked "standing" to challenge the placement of the device, because he lacked a legitimate expectation of privacy in the pickup, which belonged to his brother Angel. (The court added (in dicta?) that even if Hernandez did have standing on that issue, attaching the device was not a Fourth Amendment violation. It was not a search because a car's undercarriage is in public view. And it was not a seizure because the device did not interfere with anyone's possession or use of the truck.) But Hernandez did have standing to challenge the use of the GPS device, because he had permission from Angel to use the truck and therefore lawfully possessed it.
 
On the substance, the court held that the Government's use of the device to track Hernandez was not a search and therefore not a Fourth Amendment violation.  The device here was essentially no different than an electronic beeper, the use of which the Supreme Court held in United States v. Knotts to not constitute a search or seizure.  The court noted that the Seventh and Ninth Circuits have also so held. The Eighth Circuit has also approved such use of GPS trackers, at least where the police had a reasonable suspicion of drug activity and the device was installed for a reasonable period of time while the vehicle was in a public place.

The only arguably contrary authority arises from the D.C. Circuit, which concluded that extensive GPS monitoring of a subject’s movements over the course of a month does constitute a search because “the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.” United States v. Maynard, 615 F.3d 544, 560 (D.C. Cir. 2010), cert granted, ____ U.S. ____. Maynard concluded, in other words, that even though GPS monitoring of an individual trip is not a search, the aggregated monitoring of a suspect’s daily comings and goings somehow becomes a search. Regardless of our theoretical concern about continuous GPS monitoring, Maynard is easily distinguished because here, Hernandez’s movements were recorded over a single cross-country trip. He was not subject to continuous, around-the-clock electronic surveillance over the extended period of time that concerned the Maynard court.

Hernandez tried to distinguish Knotts, argued that unlike a beeper, a GPS device provides far more detailed and intrusive tracking data, and doesn't require officers to visually follow the suspect. The court disagreed:

Regardless of what a GPS system could do, this GPS was not much more than a glorified, more efficient beeper. We do not mean to suggest that the government’s use of a top-of-the-line GPS, which Hernandez describes as being capable of continuous, precise surveillance, would constitute a search. But that case is not before us.

That case may not have been before the Fifth Circuit, but it is before the Supreme Court, along with the separate question of whether warrantless installation of the GPS device is a Fourth Amendment violation.