Archive | GPS Surveillance

The Government’s Brief in United States v. Jones and the Four Models of Fourth Amendment Protection

Thanks to Lyle Denniston, I learned today that the Justice Department has just filed its brief in United States v. Jones, the pending Supreme Court case on whether installing and using a GPS device to detect the location of a suspect’s car without a warrant violates the Fourth Amendment. The DOJ brief is an interesting example of how Fourth Amendment arguments are constructed, so I wanted to blog a bit about it. I’ll start with a bit of context from a recent law review article, and then break down the government’s arguments accordingly. I’ll then make some quick predictions about arguments the Respondent’s brief might make.

I. The Four Models of Fourth Amendment Protection

A few years ago, I wrote a law review article on the “reasonable expectation of privacy” test in Fourth Amendment law: Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 (2007). My argument was that the “reasonable expectation of privacy” test was really four different tests — that there were four different kinds of arguments that the Supreme Court made about when the government violates a reasonable expectation of privacy and therefore is a Fourth Amendment “search.” Here are the four models I identified:

(1) the probabilistic model, by which an expectation of privacy is reasonable or not based on how common or expected the government’s conduct appears to be.
(2) the private facts model, by which an expectation of privacy is reasonable or not based on the nature of the information disclosed regardless of how it is obtained,
(3) the positive law model, by which an expectation of privacy is reasonable or not based on whether the government’s conduct violated some source of law outside the Fourth Amendment, and
(4) the policy model, by which an

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Supreme Court Agrees to Review Case on GPS and the Fourth Amendment

According to this morning’s order list, the Supreme Court has agreed to review United States v. Jones, the DC Circuit’s “mosaic theory” case on whether and when use of a GPS device installed on a car is a Fourth Amendment search. The Court added a question, as well:

“Whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.”

I’m glad the Court granted in this case, and I’m also also glad they added the question on installing the device. The installation question was the piece of the puzzle that was strangely left out of the Knotts case thirty years ago (see the * footnote), and as I blogged back when Judge Kavanaugh flagged the issue in his dissent from denial of rehearing (see comment [b]), I think its a difficult and important question. (Lower courts have uniformly held that installing the device is not a search or seizure, but I’ve never found their reasoning very persuasive.)

The fact that the Court added the question about installing the device adds a really interesting wrinkle to the Jones. case. Let’s simplify a tad and assume that the only issue is whether the installation and/or use of the GPS is a search or seizure — that is, let’s assume that if there is a search or seizure, then it’s unreasonable because there was no valid warrant. If that’s the case, then the government needs five votes agreeing with it on three different issues: (1) Installation of the GPS is not a search or seizure; (2) Initial use is not a search or seizure, and (3) Long-term use is not a search or seizure.

Only question (3) implicates the rationale of the DC Circuit’s [...]

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Petition for Certiorari Filed in Pineda-Moreno, The Ninth Circuit GPS Case

A petition for certiorari was recently filed asking the Supreme Court to review United States v. Pineda-Moreno, the Ninth Circuit case allowing warrantless GPS surveillance. I have posted a copy of the cert petition here.

There’s been a lot of interest in this case thanks to Judge Kozinski’s over-the-top dissent from denial of rehearing, so I thought I would blog a bit about the cert petition. In my view, the petition should be denied. Here’s why:

(1) I don’t see a genuine split on the GPS question. The Seventh Circuit agrees with the Ninth, and the only serious candidate for a split is the DC Circuit’s Maynard case. But there isn’t a clear split between Maynard and Pineda-Moreno. Maynard says that short-term GPS monitoring is fine, and it’s only long-term monitoring (the exact length unknown) that becomes a search — and even then, it may be that no warrant is required. It’s not clear that applying Maynard‘s approach to the facts of Pineda-Moreno leads to a different result.

More broadly, the real key to Maynard is the novel mosaic theory, which no one discussed in Pineda-Moreno. The two cases are like apples and oranges, at least if you imagine a world where no one has ever seen or heard of an orange. And even if there is a real split, it’s only a split that covers a single city, Washington, DC, with a single U.S. Attorney’s Office. The cert petition tries to make the split seem broader, but I don’t see it: The state cases are cases interpreting the state constitutions, for example, so they can’t be part of any split.

(2) I don’t see a clear split on the curtilage issue, either. The odd part about Pineda-Moreno is that the AUSA in the [...]

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DC Circuit Denies Rehearing in United States v. Maynard, the “Mosaic Theory” Case, by 5-4 Vote

The DC Circuit has just noted on its docket that it has denied rehearing in United States v. Maynard, the GPS case introducing a new “mosaic” theory of the Fourth Amendment, by a 5-4 vote. According to the docket entry, there were two dissents from denial of rehearing. Judge Sentelle wrote one dissent that was joined by Judges Henderson, Brown, and Kavanaugh, and Judge Kavanaugh wrote a second dissent. In addition, the three judges on the original panel, Judges Ginsburg, Tatel, and Griffith, wrote a concurring opinion in support of the denial of rehearing. The various opinions haven’t been posted yet, but I’ll blog a link, and some commentary, when they are. [UPDATE: I have obtained a copy of the opinions and posted them here.]

While we’re waiting for the DC Circuit opinions, I wanted to point out what I thought was a superb opinion rejecting Maynard and holding that public GPS surveillance is not a search that was filed recently by Judge Young in the District of Massachusetts: United States v. Sparks, — F.Supp.2d –, 2010 WL 4595522 (D.Mass. Nov. 10, 2010).

UPDATE: I have now posted the opinions, and here’s a quick run-down:

(a) Judge Sentelle’s dissent argues that GPS surveillance is directly covered by the Supreme Court’s beeper case, United States v. Knotts, and therefore is not a search. He also suggests that the novel aggregation theory has far-reaching consequences (most obviously, to visual surveillance) and argues that even on its own terms it fails to work because Knotts said there is zero expectation of privacy as to movements on public highways: “The reasonable expectation of privacy as to a person’s movements on the highway is, as concluded in Knotts, zero. The sum of an infinite number of zero-value parts is also [...]

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DOJ Petitions for Rehearing in DC Circuit “Mosaic Theory” GPS Surveillance Case

The Department of Justice has filed this petition for rehearing en banc in United States v. Maynard, the case adopting a “mosaic” theory of the Fourth Amendment to hold that long-term public GPS monitoring requires a warrant.

As you might case from my earlier post on this, I think DOJ has a very strong case for en banc review. It seems to me that if the DC Circuit is willing to grant en banc review to determine the largely inconsequential matter of when lowering a zipper on a jacket violates the Fourth Amendment, presumably they would want to review a panel decision that articulates an entirely new theory of Fourth Amendment protection that the panel conjured up and that wasn’t even briefed by the parties.

One interesting aspect of Maynard is that DOJ has a strong case for en banc review but a significantly weaker case for a cert petition. On its terms, the DC Circuit’s opinion denies that it creates a circuit split. And even if you don’t buy that, circuit splits in Fourth Amendment cases between the DC Circuit and other courts just aren’t all that important: The effect of any split is narrow because DC Circuit opinions are binding only here in the District of Columbia. So en banc review may be the end of the Maynard road: As always, stay tuned. [...]

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Podcast on GPS Surveillance, Open Fields, and the Fourth Amendment

I recorded it yesterday for the Legal Talk Network, and it runs about 30 minutes; you can listen here. We start off by discussing Judge Kozinski’s stirring dissent from denial of rehearing en banc in United States v. Pineda-Moreno, which has received a lot of press attention.  Among the questions discussed: Who lives in gated communities? [...]

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Fourth Amendment Stunner: Judge Rules That Cell-Site Data Protected By Fourth Amendment Warrant Requirement

A few federal court opinions have been making a big public splash recently by taking surprising positions on how the Fourth Amendment applies to location surveillance.   The latest opinion in the line is Magistrate Judge James Orenstein‘s decision in In The Matter Of An Application Of The United States Of America And Order For An Order Authorizing The Release Of Historical Cell-Site Information, handed down on Friday. The decision holds that historical cell-cite data — records generated by cell phone providers in the ordinary course of business that indicate which cell towers were communicating with a phone, and thus, the rough location of the phone — is protected by the Fourth Amendment and its warrant requirement.

It’s only a decision by a Magistrate Judge, and it is not binding on anyone. But it is an extraordinary opinion, in my view: It’s an extraordinary result, reached in an extraordinary way, and based on an extraordinary number of errors. In this post, I want to explain the decision and then explain why I think it is plainly incorrect as a matter of Fourth Amendment law.

I. Magistrate Judge Orenstein’s Opinion

The basic reasoning of the opinion follows these steps:

(1) The government has applied for a “specific and articulable facts” court order commanding the phone company to disclose historical cell-site information pursuant to 18 U.S.C. 2703(c). Magistrate Judge Orenstein acknowledges that the government’s application satisfies Section 2703(c).  But he states that he has the power to rule on whether a court order, when implemented, will be used in a way that violates the Fourth Amendment — and to deny the order if in his view the statute would be used in an unconstitutional way. He thus makes the application for a court order an opportunity to reach a holding [...]

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D.C. Circuit Introduces “Mosaic Theory” Of Fourth Amendment, Holds GPS Monitoring a Fourth Amendment Search

Today the D.C. Circuit held that government use of a GPS device to monitor the location of a car on public roads is a Fourth Amendment “search” when conducted over a long-term period (in his case, a month). The case is United States v. Maynard, and it was written by Judge Douglas Ginsburg and joined by Judges Tatel and Griffith. If it stays on the books, it is a potentially revolutionary Fourth Amendment decision: It introduces a new “mosaic” theory of the Fourth Amendment that allows individual law enforcement steps that are not searches to become a search when collected together. A lot of readers are going to love it for that reason, and I expect it’s going to be a huge hit in privacy law and libertarian circles. But I don’t find the opinion persuasive as a matter of Fourth Amendment law: I don’t think a mosaic theory can work. So I wanted to blog about it, and then why I don’t think it’s persuasive.

I. Some Background

I’ve blogged before about whether installation of a GPS device to monitor the location of a car on public roads is a Fourth Amendment “search.” In my view, Supreme Court precedent is pretty clear here: It is not a Fourth Amendment search under United States v. Knotts, 460 U.S. 276 (1983), which held that the use of a “beeper” device to monitor the location of a car on public roads — a beepter being “a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver” — is not a search. Knotts held:

A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [the defendant] traveled over the

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