Who Has Standing to Challenge Mosaic Searches? The Interesting Case of United States v. Luna–Santillanes

In my forthcoming article, The Mosaic Theory of the Fourth Amendment, I discuss why the mosaic theory of the Fourth Amendment raises puzzling questions about standing:

Fourth Amendment rights are personal, and individuals can only invoke a remedy if their own rights were violated. The Fourth Amendment standing inquiry arises as an application of the reasonable expectation of privacy test; each person must established that his or her own reasonable expectation of privacy was violated to have standing to challenge the government’s act. But who has standing to challenge a mosaic search? The question is difficult because mosaic searches occur over time, and the overall mosaic therefore may monitor different people at different times in different degrees. To appreciate this, imagine that Alan has a GPS device installed in his car, and Bob then steals Alan’s car and begins to drive it around as his own. Bob drives the car for 30 days, and during that time he often gives rides to Charles, Dave, and Elizabeth. Charles gets a ride almost every day; Dave every other day; and Elizabeth only rides in the car twice. The police remotely turn on the GPS device when the car is reported stolen, and they monitor the car for 28 days.

We know from Jones that five Justices would say that the 28 days of GPS monitoring amounts to a search. But who has standing to challenge it? Does Bob have standing on the ground that his location was monitored for the full 28 days? Or does he lack standing because the stole the car, and therefore has no rights in it?203 If Bob has standing, what about Charles, Dave, and Elizabeth? Do all three have standing because their location was monitored as part of a broader mosaic search? Or must the standing inquiry look to each individual, requiring an assessment of whether the monitoring of each individual suspect was enough to constitute a mosaic?

A district court recently became the first court to grapple with these questions in United States v. Luna–Santillanes, 2012 WL 1019601 (E.D. Mich. March 26, 2012). The facts of the case nicely bring out some of the difficulties of the mosaic approach.

Luna-Santillanes, Jiminez, and Chaviravelazquez were running a heroin conspiracy. The conspiracy used three cars: a Lincoln Aviator, a Chrysler Sebring, and a Mazda. Different drivers drove different cars at different times. Investigators ended up installing GPS devices on all three cars, and they used the GPS devices to track the movements of the cars to know what the heroin ring was up to. The Chrysler had a GPS device installed and monitored for 2 months; the Lincoln, for 2 days; and the Mazda, for “a few” days. The GPS tracking was useful to the investigators not only to understand the conspiracy, but also to bring the police to the scene of particular events so they could conduct searches and try to find drugs. For example, the investigators tracked the movements of the Lincoln Aviator when it was used to transport heroin when being driven by Chaviravelazquez. The officers used the GPS to know where the car was to pull over the car for a traffic stop. During the stop, the officers asked Chaviravelazquez to consent to search; a search of the car led to the discovery of two kilos of heroin inside. The GPS devices on the other two cars led to similar discoveries.

At trial, Luna-Santillanes and Jiminez moved to suppress both the location evidence from the GPS devices and all the evidence that was a fruit of the poisonous tree — that is, the drugs found in the cars when they were stopped thanks to the GPS surveillance. The district judge denied the motion to suppress on grounds that neither Luna-Santillanes (who the Court refers to as D-1) nor Jiminez (who the Court refers to as (D-2) had standing to challenge the mosaic search:

Applying Katz to the facts presented here, it is Defendants’ reasonable expectation of privacy in their movements, not merely the movements of a vehicle they sometimes used, that triggers Fourth Amendment protections. Although D–1 was observed using the red Lincoln Aviator on April 11, 2011, he was not using the vehicle when the GPS device was placed on it. Rather, the TFOs installed the GPS device on that vehicle after they saw it unoccupied and parked on the street near the River Rouge residence that they were observing for reported drug activity. More importantly, neither D–1 nor D–2 was driving the red Lincoln Aviator on April 14, 2011 when the traffic stop and search occurred that produced the kilograms of heroin that these Defendants seek to suppress.

Rather than ownership or exclusivity, the record evidence establishes that D–1 drove the red Lincoln Aviator one time—on April 11, 2011—, a few days before the GPS device was attached. It further establishes that the GPS device was installed on the red Lincoln Aviator only one day before the April 14, 2011 traffic stop, consented-to search, and seizure. Moreover, as established by testimony at the March 20, 2012 hearing, the GPS device on the red Lincoln Aviator was removed within hours of the April 14, 2011 traffic stop. Thus, even if Defendants could establish that they had standing to challenge the April 14, 2011 search and seizure of the red Lincoln Aviator, the one-day monitoring of that vehicle constituted a reasonable search. As Justice Alito observed in his concurring opinion in Jones, “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.” Id. at 964. For the above stated reasons, D–1’s and D–2’s motions to suppress the kilograms of heroin seized on April 14, 2011 are denied

. . . . At the March 20, 2012 hearing, these Defendants argued that, because the government placed a GPS device on every vehicle available to them, they had a legitimate expectation of privacy, not in the three vehicles at issue here but rather in the totality of their movements on the roadways over an extended period of time. The Court rejects that argument for the following reasons. First, Jones did not go this far, and Defendants cite no binding decision that does. Second, the facts presented do not support Defendants’ claim. The testimony at the suppression hearing failed to establish that there was a GPS device on the silver Chrysler Town and Country minivan driven by D–2 during the July 21, 2011 traffic stop where the kilograms of cocaine were seized. Moreover, rather than exclusivity of use, the evidence presented shows that Defendants 1, 2, and 3 used the three vehicles at issue here, and other vehicles, interchangeably. In fact, there is evidence that a CS was allowed to drive the rented black Mazda. (Gov’t Ex. 12.) Finally, as the testimony at the hearing established, although the GPS device was on the silver Sebring for about two months, a GPS device was on the red Lincoln Aviator for two days at the most and was on the rented black Mazda for only “a few days.”

The Court’s analysis here is not exactly a model of clarity, perhaps reflecting the difficulty of applying the mosaic frameowrk to such complicated facts: There are three defendants, three cars, and three different periods of GPS monitoring, with each car being used by different people at different times. But it arguably suggests that one day of GPS monitoring is lawful under Jones, and perhaps that standing to challenge a stop that is a fruit of GPS monitoring requires that the stop implicate the suspect’s rights rather than just that the monitoring as part of the mosaic implicate the suspect’s rights.

I’m curious, for readers who are proponents of the mosaic theory, do you think this case was correctly decided? Why or why not?