More Cases on the Mosaic Theory and The Implications of Jones

The various opinions in United States v. Jones (aka the GPS case) raise tons of fascinating new questions for Fourth Amendment law. I explore some of those issues in a forthcoming article, The Mosaic Theory of the Fourth Amendment, which will appear in the Michigan Law Review and which I hope to post an early draft of soon. In the meantime, here are three cases just from the last week or so on the implications of Jones.

1) United States v. Anderson-Bagshaw, 2012 WL 774964 (N.D.Ohio, March 8, 2012). This case considers whether Jones applies to video surveillance. The defendant was claiming disability benefits while running an alpaca farm. The government installed a camera on a telephone pole adjacent to the defendant’s property and recorded video of the property continuously for 24 days. The video was streamed over the Internet to a federal agent, who watched the video stream 3-5 hours a day and used some of it for evidence at trial. The use of the camera did not trespass on the suspect’s property. Held by District Judge Gwin: The mosaic theory does not apply, because the majority in Jones did not adopt the mosaic theory.

If the majority [in Jones] had adopted a mosaic theory condemning uninterrupted GPS surveillance, and further extended that theory to non-trespassory surveillance, then perhaps a substantial question of law might have been presented as to the constitutionality of the continuously streamed footage. Perhaps then the constitutionality of the 24–day surveillance would be a close question, or one that could go either way. But no such theory was adopted, and the pole camera footage remains soundly within the purview of caselaw reviewed in the Court’s denial of Bagshaw’s motion to suppress and motion to reconsider, under which authority this is not a close question.

2) State v. Zahn, — N.W.2d —-, 2012 WL 862707 (S.D. March 14, 2012). Under facts essentially identical to those in Jones, the Supreme Court of South Dakota concludes that the facts amount to a search both under the Jones trespass theory and also under the mosaic theory, essentially adopting both the majority and concurring opinions in Jones. On the latter point, the Court states:

When the use of a GPS device enables police to gather a wealth of highly-detailed information about an individual’s life over an extended period of time, its use violates an expectation of privacy that society is prepared to recognize as reasonable. The use of a GPS device to monitor Zahn’s activities for twenty-six days was therefore a Fourth Amendment search under the Katz “reasonable expectation of privacy” test.

The Court also concludes that a warrant is required for GPS surveillance, although its analysis is cursory. The opinion is not entirely clear whether the Court is concluding that a warrant is required for a Jones trespass search, a Katz mosaic search, or both, although the one sentence seems to be suggesting that it is focused on a warrant requirement for a mosaic search. Here’s the Court’s full analysis:

The United States Supreme Court has carved out a number of “well-delineated exceptions” to the warrant requirement. Katz, 389 U.S. at 357, 88 S.Ct. at 514. The Court has found that the presence of exigent circumstances excuses a warrantless search and that a warrantless search and seizure of an individual for the limited purpose of briefly investigating reasonably suspicious behavior is permissible. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Consent searches, searches conducted incident to a valid arrest, automobile searches, and searches of items in plain view are also allowed without a warrant. None of these exceptions readily applies to the use of a GPS device to monitor an individual’s activities over an extended period of time.

Justice Zinter concurs to complain that the Court should not have addressed the mosaic theory: “Because we are deciding this case under the federal Constitution, we should not utilize a Fourth Amendment test that the majority of the Supreme Court has expressly declined to apply.”

3) United States v. Nwobi, 2012 WL 769746 (C.D. Cal. March 7, 2012). Under facts essentially identical to those of Jones, Judge King holds that the exclusionary rule does not apply because Ninth Circuit precedent from 1999 held that it was neither a search nor a seizure to install a GPS device on a car. See United States v. McIver, 186 F.3d 1119, 1126 (9th Cir.1999). Under the latest good-faith exception case, Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), the officer is deemed to have relied in good faith on McIver and the exclusionary rule does not apply.