A federal appeals court considered the challenge by two convicted bank robbers to the warrantless placement of a GPS tracking device on one of their cars.

On January 10, the U.S. Court of Appeals for the First Circuit held oral arguments in a combined appeal brought by Craig Sparks and Benjamin Michaud. They claim Fourth Amendment violations based on a Supreme Court decision — issued after their convictions — holding that a government’s placement of a GPS device on a car is a Fourth Amendment search.

Both men are challenging their January 2011 sentences issued by Judge William Young of the District of Massachusetts for a January 2010 armed bank robbery. Young sentenced each to 188 months in prison and five years supervised release.

Each pleaded guilty pursuant to a deal that reserved the right to appeal the district court’s denial of their motion to suppress the warrantless installation and use of a GPS tracking device on Sparks’ car.

Sparks argued in his brief that law enforcement use of a GPS tracking device on an automobile without notice to the owner is a Fourth Amendment search and a trespass under common law, relying on the Supreme Court’s 2012 decision in U.S. v. Jones.

In his brief, Michaud also alleged a Fourth Amendment violation and further argued that his status as a passenger does not diminish his Fourth Amendment rights.

The government’s position is that while U.S. v. Jones ruled that placement of a GPS device on a car is a Fourth Amendment search, the case did not hold that “such a search requires either a warrant or the existence of probable cause.”

Even if the agents violated the Fourth Amendment by placing and using the GPS device, they “acted in good faith reliance on a substantial consensus among precedential courts, that their actions did not even implicate the Fourth Amendment, let alone violate it,” stated the government’s brief. “[Even a]ssuming that the agents’ conduct violated the Fourth Amendment, the good faith exception applies and the decision below should be upheld.”

Concerning Michaud, the government claimed he failed to show any ownership interest in the car that would enable him to complain of trespass or that he had a reasonable expectation of privacy in the car.

Judge Jeffrey Howard sat on the panel, along with Senior Judge Norman Stahl and retired U.S. Supreme Court Justice David Souter, who heard the case by designation.

Michaud’s lawyer, Roger Cox, of Cox & Cox in Butler, Pa., said the difficulty with this case is that a number of courts ruling after Jones put the 2011 Supreme Court ruling in U.S. v. Davis “into the mix.” That decision held that law enforcement agents who “engaged in objectively reasonably reliance on existing binding precedent were immune from their misuse of the Fourth Amendment under Jones,” Cox said.

Although the government points to Seventh and Ninth circuit cases decided before Jones, those weren’t binding in the First Circuit, he added. “The agents had no idea [what the First Circuit would have ruled]. They guessed. I don’t think allowing guesswork by agents is reasonable reliance on existing binding precedent.”

“How do you deal with the prior beeper cases?” Souter asked.

The Supreme Court’s 1983 ruling in U.S. v. Knotts held that government use of a beeper to track a choloroform container sold to the defendant was neither a “search” nor a “seizure” within the contemplation of the Fourth Amendment.

The beepers were tracking things, not people, Cox answered. In the Jones case, there was “a person, not a thing like a container of chemicals being followed around.”

“The only time anyone is being followed by the GPS is when the car is in motion. So that there is in fact a close analogy to beepers attached to objects,” Souter said.

“That’s an imperfect analogy,” Cox responded.

“I agree with you, it’s imperfect, but you’ve got to start somewhere. Why isn’t it enough?” Souter said.

Cox responded, “The fundamental problem is, I have not met a human being outside lawyers and judges who don’t have a problem with the idea of the government being able to follow them around without a warrant with no justification whatsoever except that they feel like it for any period of time that they want.”

Sparks’ lawyer, Jeffrey Langholtz of Biddeford, Maine, argued that “it was an expansive and liberal view of the law to conclude that it was unnecessary to apply for a warrant prior to placing the GPS device on Mr. Spark’s vehicle.”

Langholtz added, “Good faith does not exist in this case.…This was an area of unsettled law. In some jurisdictions agents were applying for warrants and in others they weren’t.”

Arguing for the government, Assistant U.S. Attorney Robert Richardson said that, based on the state of the law at the time, the agents had “an objectively reasonable good faith belief that their conduct was lawful.”

“The sole basis on which the defendants in this case urged reversal is based on the Supreme Court’s decision in Jones, which came as a surprise to many,” Richardson said.

Stahl asked Richardson to talk about the impact of the rapid evolution of the technology: “These devices are very much smarter than they were when many of these earlier cases were decided. Does that make a difference as to how we should look at whether what the officers did was reasonable under the good faith exception?”

In Knotts and the cases that followed, “the line of demarcation there did not seem to be based on the technology,” Richardson answered. Instead, it seemed to be whether at some point the action changed from tracking a vehicle on public roads to tracking items they had passed into a house or an area not open to visual surveillance, he said.

Concerning Michaud in particular, Richardson said that he “really has no standing. He did not establish below that he had an ownership interest” in the car that would bring his case in the ambit of Jones.

Sheri Qualters can be contacted at squalters@alm.com.