Transcript 295 - Michigan Prosecuting Attorneys Coordinating Council

GPS Trackers:
An Overview of United States v Jones,
and Practical Considerations for Law
Enforcement Use of Tracking Devices
Mark Kneisel
Assistant Prosecuting Attorney
734.222.6688; [email protected]
Washtenaw County Prosecuting Attorney’s Office
Brian L. Mackie, Prosecutor
June 22, 2012
How Did We Get Here?
 Fourth Amendment:
“The right of the people to be
secure in their persons, houses, papers, and
effects, against unreasonable searches and
seizures, shall not be violated, …”

Search and Seizure caselaw was tied to
trespass model until mid-1900s.
 In
1967, United States Supreme Court made a
person’s “reasonable expectation of privacy” the
main inquiry.
How Did We Get Here?
 Monitoring
of “primitive” electronic tracker
(beeper) that amounted to the following of a car
on public streets was not a search because it did
not invade a reasonable expectation of privacy.
–
–
United States v Knotts, 460 US 276 (1983).
When “…‘twenty-four hour surveillance of any citizen of
this country will be possible, without judicial knowledge
or supervision’…there will be time enough then to
determine whether different constitutional principles
may be applicable.” Knotts, 460 US at 283-284.
How Did We Get Here?
 Installation
of “primitive” beeper into a canister,
and transfer of that canister to a suspect,
infringed no privacy interest of that suspect.
–
United States v Karo, 468 US 276 (1983).
 Both
Knotts and Karo addressed the distinction
between trespass and privacy analyses, and
foresaw more sophisticated technology.
United States v Jones, 132 S Ct 945.
 January
23, 2012.
 Facts:
–
FBI obtained warrant that gave ten days to install
device on D’s wife’s car in District of Columbia. On
day eleven, FBI installed device on wife’s car in
public parking lot in Maryland; FBI activity was
therefore warrantless. Government chose to argue
that installation and use were not even a search.
 Two
distinct majority opinions?
United States v Jones, 132 S Ct 945.
 Two
–
–
–
Justice Scalia wrote for four Justices (Opinion).
Justice Alito wrote for four Justices (Concurrence).
Justice Sotomayor agreed with both Justice Scalia
and Justice Alito – two “majority” rationales.
 The
–
–
Distinct Rationales
Opinion of the Court
The historical trespass underpinnings of the Fourth
Amendment are re-established.
“…Government's installation of a GPS device on a
target's vehicle, and its use of that device to monitor
the vehicle's movements, constitutes a ‘search.’”
United States v Jones; Concurrence
 Concurrence
would retain (and expand)
Reasonable Expectation of Privacy analysis.
–
–
–
–
Implicitly endorses “mosaic” theory developed by
lower court.
Even without a trespass, long-term monitoring
violated Jones’ reasonable expectation of privacy.
GPS monitoring can alter relationship between
citizens and government in ways inimical to
democratic society (Sotomayor, paraphrased).
On-Star; Cellphone Tracking; Drones; ….
Now What?
 Pending
cases involving pre-Jones (January 23,
2012) uses of GPS trackers.
–
–
–
–
Standing.
Distinguishable facts.
Inevitable Discovery/Independent Source.
Good Faith Exception.
 Future
–
uses of GPS trackers.
Jones was silent on warrant requirement, but
warrants should be used.
Pre-Jones Situations
 U.S.
–
–
Warrantless tracking of non-contraband personal
property (cars?) in public places was permissible?
Good Faith Exception?
 U.S.
–
–
v Bailey, 628 F2d 938 (CA 6, 1980).
v Luna-Santillanes, 2012 WL 1019601.
Standing is defendant-by-defendant.
Inevitable Discovery.
Search Warrants for GPS Trackers
 Square
 MCL
Pegs in Round Holes.
780.651 et seq.
 Templates.
–
–
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Always Exercise Caution When Using Any Template.
GPS Templates “Cribbed” From Federal Orders
Have Unnecessary Nighttime Permission Language.
Templates Are Not the Gospel; Consider Underlying
Rationales, Then Mix and Match (AND REMOVE
EXRANEOUS) Template Language to Suit Particular
Situations.
Important Concepts

Investigate and Articulate Ongoing/Future
Reasonableness of Search.

Installation/Maintenance/Removal in Locations
Accessible to the Public, or With a Second (or TwoPart) Warrant.

Suspect Must be Informed that His Car Was Tracked.
–
But not until he’s charged.

Return/Tabulation – Dates/Times/Locations Instead of
Things.

Prepare Your Judges (not your magistrates).
Location Accessible to Public

Basic Template Addresses Vehicle Only.

Warrant Authorizes Installation/Maintenance/Removal,
But Only at Locations Accessible to the Public.
–
–
–
–
Accessing or Re-Accessing Device/Vehicle in Garage or
on Curtilage Requires a Second, or a Two-Part, Warrant.
If You Have to Cross a Threshold or Jump a Fence, You
Need Judicial Authorization
United States v Dunn, 480 US 294 (1987).
People v Powell, 477 Mich 860 (2006).
Probable Cause
 In Addition
to “Traditional” Probable Cause, Be
Sure to Tether Your Tracking Request to a Crime
in Your Jurisdiction & to Establish Probable
Cause for the Future/Ongoing Reasonableness
of the Monitoring
Tabulation
 Must
–
Detail Each Time You Access Vehicle/Device.
Location, Date, Time
 Must
 Must
Detail When Monitoring Began and Ended.
Give Tabulation to Vehicle Owner/User & (if
applicable) Owner of Private Property You Entered
to Install/Maintain.
Five Templates
 Basic
–
(Alpha)
Install and Monitor on S-1’s Car; Accessible to Public
 Private
–
Property (Bravo)
S-1’s Car; S-1’s or Other’s Private Property
 Already
–
Permission to Monitor Only.
 Already
–
Installed (Delta)
Permission to Enter Private Property for Maintenance.
 Already
–
Installed (Charlie)
Installed (Echo)
Extension of Monitoring Duration
Basic Template (Alpha)
 Fill
In Exact Deadline Date for Installation.
 45-Day
 Tether
 Car
Duration? 30-Day?
Use of Tracker to Your/Judge’s Jurisdiction.
Owner versus Car’s Primary Driver.
 Tabulation
–
–

(and Return)
Dates/Times/Locations
Serve on Owner/Primary Driver When Charged.
What if No One is Ever Charged?
Private Property (Bravo)
 Installation
on Private Property Involves Two
Distinct “Intrusions” Requiring Judicial Authority
 Both
Intrusions Must Be Described With
Particularity
–
–
Description of Vehicle
Description of Property (Address)
Already Installed (Charlie)
 Installed
With Consent, or In Exigent
Circumstances
 Get
Judicial Authorization to Begin Monitoring
ASAP
Maintenance on Private Property
(Delta)
 Entering
Private Property Is a Separate Intrusion
Requiring Judicial Authorization
Extension of Tracker Duration (Echo)
 Articulate
New Information that Makes Additional
Monitoring Reasonable.
–
–
–
Additional Suspects.
Additional Crimes.
S-1 Out of Service for Several Weeks (Jail).
Tactical/Practical Considerations
 Have
a Plan Before Installation, Maintenance,
Removal
 Talk
to the Feds
 Hard-Wired
Devices versus “Slap-Ons”
 Maintain All
Location Information
–
–
Not part of tabulation.
Failure to maintain and present location information
as part of discovery will draw Brady motions.
Where Are We Going?
 Future
Legislative Action?
 Tracking
 United
Cell-Phones; Tracking On-Star; Drones.
States v Jones May Undermine Future
Good Faith Exception Arguments for Other
Surveillance Practices.
Internet Resources
 fourthamendment.com
 volokh.com
 usvjones.com
Mark Kneisel
Assistant Prosecuting Attorney
Direct Line: 734-222-6688
Email: [email protected]