Fourth Circuit Divides Over Warrantless GPS Tracking

Fourth Circuit Divides Over Warrantless GPS Tracking Photo: Welcomia/iStockphoto.com

City police in Baltimore acted in good faith in using a tracking device without a warrant to follow the movement of a suspect, a divided federal appeals court said Tuesday in upholding a firearms conviction.

The authorities in 2011 installed the battery-operated Global Positioning System device under the rear bumper of a vehicle parked in a public lot in suburban Baltimore. Officers used visual surveillance and the GPS tracker to find and stop the driver, Henry Stephens, the target of a gun and drug investigation. The police found a loaded pistol in Stephens’ vehicle.

Stephens pleaded guilty but kept alive his challenge of the admission of the evidence in the case. The installation of the device occurred before the U.S. Supreme Court, in January 2012, ruled in United States v. Jones that the warrantless use of a tracking device was a “search” under the Fourth Amendment that implicated privacy rights.

“The court did not, however, rule that all warrantless GPS searches violate the Fourth Amendment; instead, the court expressly declined to decide whether reasonable suspicion or probable cause may justify warrantless GPS attachment to vehicles, and that remains an open question,” Judge Dennis Shedd of the Fourth Circuit wrote for the majority.

Shedd, joined by Senior Judge Clyde Hamilton, said that in 2011, before the Supreme Court issued its decision in Jones, “a reasonably well-trained officer in this circuit could have relied on Knotts as permitting the type of warrantless GPS usage in this case.” (In United States v. Knotts, the Supreme Court in 1983 turned down a Fourth Amendment challenge over the warrantless use of a beeper that the authorities placed into a container to track a drug suspect.)

The Fourth Circuit majority on Tuesday concluded that in 2011 “it was not uncommon for law enforcement officers in Maryland to attach tracking devices to vehicles without a warrant.” The officer who attached the GPS device to Stephens’ vehicle had previously affixed trackers—without a warrant—to other vehicles in public spaces, the appeals court said.

Fourth Circuit Judge Stephanie Thacker, writing in dissent, said the evidence against Stephens should have been suppressed. Thacker, quoting the words of an officer in the case—“the investigation was taking too long”—said the authorities rushed to use the GPS device without first consulting the U.S. attorney’s office about the legality of the search.

The exclusionary rule, Thacker wrote, “is well-tailored to hold accountable the law enforcement officers in this case who relied on nonbinding, nonprecedential authority regarding emerging technology—without first bothering to seek legal guidance—in order to conduct a warrantless search which spanned a period of nearly two months.”

Citing “this era of fast-moving technological advancements and our ever shrinking zone of privacy,” Thacker said “law enforcement officers should be deterred from undertaking warrantless searches in situations where, as here, there was no binding appellate precedent authorizing the action, there was no exigent circumstance, and the state of the law was unsettled.”

Contact Mike Scarcella at mscarcella@alm.com. On Twitter: @MikeScarcella.

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