Tuesday, August 2, 2011

Fifth Circuit Holds that Warrantless Use of GPS Data is not an Unlawful Search


In 2007, officers from the Drug Enforcement Administration (DEA) began investigating Angel Hernandez for suspected drug trafficking. Surveillance revealed that Angel drove a Chevrolet pickup truck when conducting trafficking activities and that he was the primary driver of the vehicle.

On Feb. 13, 2008, a DEA agent affixed a Global Positioning System (GPS) device to the bottom of the vehicle while it was parked on a public street. The affixed device was relatively simple when compared with many other GPS devices - it was only accurate to within 50 yards, could not reveal a precise address, could not transmit a signal from an enclosed space (such as a garage), and only emitted a single signal "ping" after long intervals which lasted between 15 minutes and 2 hours. There was no warrant authorizing the agent to place the device.

Two days after the GPS device was installed, DEA agents intercepted calls between Angel Hernandez and his brother, Jose Hernandez. In those calls, it was agreed that Jose Hernandez would drive the truck to a hotel in California to pick up drugs which he would then drive to Texas. Using GPS information, agents determined the truck was being driven to California. DEA agents in California then located and conducted visual surveillance of the vehicle without further use of GPS information.

While in California, officers saw Jose Hernandez stop at a hotel and load several packages into the truck. DEA agents then contacted local police who stopped Jose Hernandez for traffic violations. The officers requested permission to search the vehicle and Jose Hernandez agreed. The search revealed 20 pounds of methamphetamine hidden in the packages.

Hernandez was charged with conspiracy to possess with intent to distribute and distribution of a controlled substance in violation of 21 U.S.C. § 846. At trial in the United States District Court for the Northern District of Texas, Jose Hernandez sought to suppress the methamphetamine evidence. The suppression motion was denied, and Hernandez entered a conditional plea agreement and was sentenced to 188 months imprisonment. He then appealed the denial of his suppression motion to the United States Court of Appeals for the Fifth Circuit.

After determining that Jose Hernandez had standing to challenge the use of GPS information which revealed the truck's travel information, the court of appeals ruled on the substantive issue of whether "the government's use of the hidden GPS to track his movements constituted an unconstitutional warrantless search."

Precedent had previously established that tracking through earlier broadcasting beeper technology was acceptable in other instances because of the "lesser expectation of privacy that has historically been applied to motor vehicles, the relatively non-intrusive nature of the device's installation and use, and the fact that the agents had reasonable suspicion to believe the suspect was trafficking in illegal drugs. The beeper, in sum, ‘only aided the agents in the performance of their lawful surveillance.'" United States v. Michael, 645 F.2d 252, 257-58.

Similarly, "placement [of a broadcasting beeper] inside a five gallon drum ‘was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment'" under United States v. Knotts, 460 U.S. 276, 285 (1983).

Jose Hernandez argued that "GPS monitoring is more intrusive than the Knotts beeper because... GPS units do not require police to follow the suspect visually, do not allow the driver to detect tailing, and do not require an expensive deployment of equipment and manpower. Moreover, Hernandez contend[ed] that GPS devices automatically monitor the suspect continuously, follow suspects ‘great lengths onto private or gated property,' and provide minute-by-minute data recording."

The court of appeals acknowledged that one other federal court of appeals has held that use of GPS data constituted an unlawful search when data was collected extensively over a month. However, the court of appeals also noted that all circuits which have examined whether use of GPS data constitutes a search have agreed that monitoring a single trip with GPS information does not constitute a search.

While acknowledging that GPS devices could indeed be significantly more invasive than a broadcasting beeper, the court of appeals found that this particular GPS device, which made infrequent transmission "pings," could not transmit from enclosed areas, was only accurate within 50 yards, was not constantly monitored, and would not reveal precise addresses was "not much more than a glorified, more efficient beeper."

After evaluating all factors, the court of appeals explained that although it would reserve judgment on data gathered by more complex GPS devices, in this instance, use of the GPS data did not constitute a search.

The case, United States v. Hernandez, is available by clicking here.

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