Installing GPS Devices, Getting Warrants, and the Exclusionary Rule

An interesting new decision from the Fourth Circuit -- although I'm not sure it's right.


The Fourth Circuit handed down a new Fourth Amendment decision last week, United States v. Terry, that raises fascinating questions about the law of installing GPS devices, the role of warrants, and the exclusionary rule. The court ruled for the defendant and suppressed the evidence, but I'm not sure the court was correct. I thought I would explain my thinking.

I. The Facts

Terry was suspected of being involved in the drug trade. The police saw Terry and followed him to a parking lot, where they had a conversation with him. Having identified Terry's car, an officer secretly placed a GPS device on the car. Later that day, the officers applied for and obtained tracking warrants to "ping" Terry's phone and to place the GPS on his car. The warrant application did not tell the magistrate judge that the officers had already installed the GPS device earlier that day.

Two days later, officers used the GPS data they were receiving to track Terry and to follow him on the highway. Noting that Terry was speeding 5 miles per hour, the officers decided to pull over Terry. The traffic stop led to the discovery of drugs on Terry. Terry was charged with drug trafficking based on that discovery, and he moved to suppress the evidence. During the suppression hearing, the officer testified that he knew that he needed a warrant to place the GPS device and that he "had affixed GPS trackers to cars without first obtaining a warrant in other instances as well." The trial court ruled the drugs admissible, and Terry was convicted by a jury and sentenced to a long prison sentence.

II. The Fourth Circuit's Ruling

On appeal, the Fourth Circuit overturned the conviction. According to the court, the officers had installed the GPS device in "flagrant disregard for the well-established warrant requirement set forth by the Supreme Court in United States v. Jones. See 565 U.S. 400, 404 (2012)." They knew they needed a warrant to install the GPS, but they installed the GPS device without a warrant. That made the discovery of the drugs a fruit of the poisonous tree of the unlawful GPS installation.

The government argued that Terry's speeding was an intervening cause of the stop so that the exclusionary rule should not apply under Utah v. Strieff. The court disagreed, and reasoned that even if the speeding was an intervening cause, the flagrancy of the violation made the exclusionary rule appropriate: "The agents' purposeful disregard for the warrant requirement in this case renders wholly unavailing the government's attempts to reframe the agents' misconduct as justified by exigency or mere mistake"

III. Why I'm Not Sure the Decision is Correct

I'm not sure what to make of the Fourth Circuit's decision. I should stress that most of my concerns go beyond the briefs filed in the case (or at least not well-developed in them). The briefs were narrowly focused, and the court largely stuck to the narrow issues raised. But there was a lot going on in this case that the briefs didn't address, and it seems worth flagging those issues to get a sense of why I'm not sure I'm persuaded by the court's opinion based on the facts.

1. It's not obvious to me that the Fourth Amendment was violated at all. Assuming that the government needs a warrant to install a GPS device, I'm not sure why the Fourth Amendment doesn't permit the governemnt to install a GPS device on an exigent circumstances theory without a warrant when the government knows the location of the car as long as the government has probable cause and gets a warrant right away to allow its use. In the context of seizures, for example, the government has well-established powers to detain a package in the mail for a few hours without a warrant if they quickly go get a warrant to open the package. Given that, it's not obvious to me why there isn't an analogous power to put on a GPS without a warrant if the officers quickly get a warrant to track its location. In both cases, you could argue, the government has to search/seize without a warrant temporarily before it then gets a warrant authorizing obtaining information from the property initially search/seized. Not sure where I come out on that theory, but I'm not sure why it is wrong.

The Fourth Circuit reasons that the government flagrantly disregarded the rule in Jones that a warrant was required to install a GPS device on a car. But putting aside the possible exigent circumstances exception to that rule above, it's worth noting that Jones did not actually announce such a holding. Jones held that installing the GPS device was a search. But Jones did not rule on whether a warrant was required for that search. The government briefed reasonableness, but the Supreme Court did not address that argument because it was not raised below and was therefore forfeited. Granted, some circuit courts have held that a warrant is required—see, for example, this post from 2013 about the Third Circuit's ruling on this issue. But just based on a quick Westlaw skim, I'm not sure the Fourth Circuit has ruled on the question. I found a 2014 case, United States v. Stephens, that notes the government's argument that no warrant was needed (footnote 8) but does not reach it. So at least as of 2014 the issue was open, and I don't know of cases that settled it before the 2016 events in this case.

It's true that the officers obtained a warrant to install the GPS device and did not tell the magistrate that the GPS had already been installed. But it's somewhat hard to know what to make of that under existing Fourth Amendment precedents. The lack of candor is certainly troubling. But note that in Franks v. Delaware, which deals with false statements in warrant affidavits, the Supreme Court seemed mostly focused on when a lack of candor rose to the level of defeating probable cause. Here there doesn't seem to be a claim that the lack of candor had any effect at all on probable cause. So I'm not sure how this fits under Franks.

2. Assuming the Fourth Amendment was violated by the installation of the device, what's the remedy here? It does seem that under the flagrancy analysis in Strieff that the officer's subjective intent is important. It seems that the officer here had a subjective belief that he was violating the Fourth Amendment. He seems to have thought he needed a warrant, and he seems to have had a regular practice of installing GPS devices first and then getting warrants—what he thought was unconstitutional. Strieff suggests that the subjective view of the officer is relevant, making this focus on the subjective fair as a matter of precedent if you believe the Fourth Amendment was vioalted.

3. At the same time, it also seems relevant that the officers actually did have a warrant for the GPS device at the time the location tracking occurred. They installed the GPS and obtained the warrant on April 18th, and they tracked the car and made the traffic stop on April 20th. The court seems to ignore this part; the court seems to treat the warrant as a nullity. But I'm not sure why. Why isn't the attenuating circumstance here the obtaining of the warrant? As far as I can tell, the only difference that the "install first, warrant second" strategy made to the April 20th tracking is that it ensured that the officers had a chance to install the GPS device. If the officers had obtained the warrant first, they might not have found the car and been able to install the GPS device by April 20th to track its location then. Other than that, the officers did the same tracking they would have done with the same warrant. And that difference cuts both ways, too. Although the court seems to view that as a reason to suppress (the violation caused the tracking information to exist), it is also the basis for the exigent circumstances argument that there was no violaton at all (the idea being the officers needed to track to ensure they could find the car to install the GPS).

4. I wonder if what you make of the case depends on what the warrant said or what particular kind of warrant is required. GPS tracking with a physical device has two stages: Installing the device first and using it second. If a warrant is required to install and use the device, it may be important in this case to break down the particular role of the warrant. Is the warrant required only for the installation? Is the warrant required only for the use? You could imagine a rule that installation is a search but that the warrant requirement is only for the use under the Jones concurences (as implicitly adopted, to some degree, in Carpenter). If so, you'd want to know what exactly this warrant permitted, and whether possible deviations from what the warrant authorized and what the officers did made the execution of the warrant the kind of flagrant disregard of the warrant's terms that tends to lead to suppression.

5. Finally, as I said, I'm not necessarily blaming the Fourth Circuit for not getting into all of these issues. The briefs in the case didn't address most of the issues I raised above, at least well, and the Fourth Circuit stuck with the narrow framing of the issues by the parties. But I think this is a case where I'm not sure the result is correct based on the facts.

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  1. Imagine they bug your house, and only listen through the microphone after getting the warrant. Same scenario, really, and both raise the same issue; Why should we believe that, having installed the device without a warrant, the police actually waited on a warrant to use it? They didn’t even run a test to see that it was working? Really?

    The truth is, we should not believe that they installed it without a warrant, and then waited until they had one to use it. We should rather presume the opposite, because they’ve already demonstrated their willingness to act without a warrant.

    Anyway, side note: Just 5mph over the speed limit? I believe in many states they’re not allowed to pull you over for that, on the theory that it’s within the margin of error of radar and speedometers.

    1. Brett, I am impressed by your ability to know facts not in the record in a case you haven’t heard of before. But assuming, you are right, how is that relevant? The motion to suppress concerns evidence discovered after they obtained the warrant.

      Also, your belief that you get a freebie of 5mph over the limit before the police can pull you over is one of those things people hear that is not found in the law.

      1. I’m not talking about “knowledge”, I’m talking about “presumptions”.

        Just as in the case of spoliation, the destruction of evidence creates the presumption that it was damaging to the person who destroyed it, I’m asserting that that the installation of a surveillance device without first obtaining a warrant should create a presumption that they weren’t any more law abiding in their use of it.

        “Should”; I’m not even talking about what courts actually do, just what I think they should do.

        As for the last point, some research confirms that you’re right, and the morning drive time radio host is wrong.

        1. Brett, thanks for the response. To be clear, though, I am assuming your presumption is correct: I am then asking why it matters.

          1. A fair question.

            The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

            The underlying right is the right not to be subject to unreasonable searches and seizures, not to be spared having their results used against you in court. The right is violated even if the police never actually use the results of the illegal search in a legal proceeding. Arguably, once the illegal search has taken place, actually using the products of it against you isn’t even a further violation of the Constitution.

            So, yes, we should care if the illegal installation of the surveillance device implies illegal surveillance itself took place, even if the products of that surveillance weren’t used in court. We should care because that surveillance is the actual constitutional violation!

            1. The exclusionary principle attempts to discourage illegal searches by rendering them unproductive. It only vindicates the constitutional right to the extent that it succeeds at this.

              But using the product of a search in court isn’t the only productive use of illegal searches. Guiding investigatory actions is another use of them. So the exclusionary principle under deters illegal searches, if we don’t take cognizance of searches whose fruits are never presented in a court.

              The logic of the exclusionary principle demands, then, that we also reject the product of investigations that were guided by illegal searches, even where the actual products of the illegal searches aren’t used in court. Parallel construction and the like need to be taken seriously.

              1. I like your reasoning. Of course it would be hard to get a court to rule on this ‘play by the rules, damnit, or don’t play” basis. One of the underlying principles open which the courts rule is that lawn forcement MUST be allowed to function at some level, and one gets very little action by asking “why?”.

      2. ===Also, your belief that you get a freebie of 5mph over the limit before the police can pull you over is one of those things people hear that is not found in the law.===

        Certainly not a freebie, but I have trouble with putting on a facade of concern for safety to pull someone over for a completely different reason.

        1. In most places, at only 5mph over the speed limit, he would have been the slowest car on the road.

          1. On most Texas Interstates, 5mph over the limit will get you run over, unless you happen to be driving through one of the Speed Trap Counties. For example, driving east from Dallas on your way to Shreveport, LA on IH-20, there are two known counties where 5mph over WILL get you a ticket; the rest of the way traffic averages at 85mph or more. Same heading south from Dallas to Houston on IH-45, if you aren’t doing 85-90, you sure as hell better stick to the slow lane.

      3. A Pennsylvania, statute provides a six- to ten-mile-per-hour cushion to drivers with respect to police authority to tag speeders; the cushion varies with the type of device used to measure speed.

        If the link doesn’t work, check subsection 3368(c) of title 75 of Pennsylvania’s consolidated statutes.

        1. That refers to convictions, yes? “(4) No person may be convicted upon evidence obtained through the use of devices authorized by paragraphs (2) and (3) unless the speed recorded is six or more miles per hour in excess of the legal speed limit.”

          I would think that the validity of a stop does not turn on whether the officer possessed sufficient evidence to actually end up convicting the driver.

          1. I believe an officer could issue a citation for a general ‘too fast for conditions’ standard without evidence satisfying the statute, but I am tentatively inclined to expect to find that a stop for speeding without statutory evidence would be be improper.

    2. “Imagine they bug your house. . . ”

      WOW! That’s a huge leap from a tracker on a vehicle (where there is ZERO right to privacy while traveling on public roads) to installing a surveillance device in someone’s private residence.

      1. The point was, that there’s no privacy violation in either case, if the surveillance device isn’t activated. So, why, by Orin’s reasoning, should you care that the police bug your house? Install a camera in your bedroom?

        If you assume the police aren’t going to turn it on without a warrant, everything up to and including Orwell’s telescreen is unobjectionable.

        But assuming the police aren’t going to turn it on without a warrant is stupid. If they’ll install it without a warrant, they’ll use it without a warrant.

        That’s why just installing it has to matter.

      2. “ZERO right to privacy while traveling on public roads”

        Aren’t you a “liberal”?

        1. No. He’s a leftist. Big difference.

      3. “ZERO right to privacy while traveling on public roads”

        You have ZERO right to use a Strawman fallacy.

        It’s the right to be secure against unreasonable searches that’s at issue, not the right to hide the fact that you’re wearing your wife’s panties in public.

        Listening to you via a hidden microphone to obtain evidence against you would be a search.

        1. “It’s the right to be secure against unreasonable searches that’s at issue, not the right to hide the fact that you’re wearing your wife’s panties in public.”

          Normally that would require a strip search, which would be unreasonable under most circumstances. So I feel safe about it. (Actually, it’s the liners I use. Darned prostate surgery!)

    3. I would argue against bugging a house. That must happen with a warrant, since the house can’t move.

      On the other hand, I can see the argument for a car being a matter of opportunity. One thing that isn’t mentioned is the time frame. If the warrant was issued later the same day, I can accept this a lot more than if they waited three weeks.

      The two things that truly bother me:
      1: The officer thought he was breaking the constitution and did it anyway
      2: The warrant did not note that it was already installed.

      If they had included it on the warrant and the judge had been fully briefed on the circumstances, then I would support the argument raised in the article. However, the police’s willingness to break the constitution and then deceive the court is inexcusable.

  2. A car is very different than a package for two reasons.

    (1) How necessary is there for an exception?

    If the package is delivered and opened by the intended recipient, the opportunity to search the package is destroyed forever. Not so with a car. The car still exists. So, in contrast to the package case, the only gain here is convenience.

    (2) How intrusive is the exception to the security interests that the Fourth Amendment is designed to protect?

    The reason we have a warrant system is that presumably, sometimes warrants will be denied. It is inherently creepy for anyone to install a GPS tracker in your car without your knowledge. Vague promises that the GPS tracker will never be used should not be trusted in a world where some government employees are “bad apples.” Two points. First, even the attachment of the foreign object, even if it is not turned on, is an intrusion. Second, the average person is not really in a good position to verify that the tracking device was not used.

    A detained package is also a burden. No one wants their delivery to be delayed by a day and there is still some risk due to the rogue employee. But the burden is less and the risk of losing the evidence permanently is higher.

    One premise behind the 4th Amendment is that we cannot blindly trust people because they happen to be government employees. Going with that premise, rather than extending the package precedent, we should curtail it.

    1. Not a fan of the automobile exception, David? 🙂

      1. Your inference is correct. Not a fan. 🙂

        In general, I think the attempt to make modern doctrine balance out the Warren Court’s perceived excesses has produced some excesses of its own.

        Also, some of these older decisions don’t fit as well with modern technology. The comprehensiveness of the surveillance that can be done at scale with GPS trackers means we ought to be more cautious. Detaining individual packages is labor intensive. Tracking even multitudes of vehicles with GPS trackers is not. One dude with multiple monitors can track multiple suspects. With AI, you can scale that even more, so that systems alerts when “interesting” patterns are found, perhaps based on criteria specific to the suspect. So, what I would suggest here, as a larger theme is, that to the extent that technology has obliterated some of the “natural” economic obstacles to surveillance at scale, we may look to the 4th Amendment for some legal obstacles.


        1. I had a very different attitude in the past about privacy. In the past, I kind of had an attitude like, if you didn’t do anything wrong, you have nothing to hide. But being in multiple relationships with girls who really take any privacy violations so seriously made me realize, that there is a significant dignitary and psychological component here that I had been overlooking. There are real psychological harms done by violations of privacy. Many people need personal space to even function properly. So, in my mind, installing a GPA tracker is not a no harm, no foul situation. If they find out about it, you are going to cause the person tracked to become more paranoid, in many instances.

          In a way, in the package case, the fact that the person who was under surveillance likely never knew it in cases where the warrant was denied is a sort of plus. If you put a GPS tracker on a persons car and they find it, I think you might be creating some psychological problems for that person, in many cases. Some people may be “‘Meh, so I had a GPS tracker installed on my car, no big deal. May they know that I eat donuts in excess.” But I am beginning to suspect that this may be a minority reaction. Also, if someone finds a GPS tracker on their car, they aren’t going to automatically know that it was installed by law enforcement either.

          Anyway, I think the warrant should be approved before the intrusion, not after, in this case.

    2. The reason we have a warrant system is that presumably, sometimes warrants will be denied.

      And, in this case, if it is denied, the GPS device will still be there. Are we really to trust the police not to use it anyway? Before answering, consider that these are the same police who didn’t mind planting the device without a warrant.

      1. Yep.

        And failed to disclose it.

        The failure to disclose is, to me, extremely powerful evidence that the cops were knowingly violating the Fourth Amendment and wanted to make sure they could illegally get the warrant.

        Dishonesty on search warrant applications is a huge problem. There is no adversary and cops, like all humans, exercising unchecked power are corrupt and dishonest.

        I am inclined to say the courts should attempt to invalidate on any grounds any search authorized through any form of police dishonesty and misconduct. That’s the only hope of keeping cops honest.

  3. As far as the speed limits go, the common phrase – or variants – is nine you’re fine, ten you’re mine. I have personally heard this from numerous patrol LEOs. This is not written law and technically, even 1 mph over the limit is a violation.

    The fact that the cops illegally planted the tracker and used a thinly veiled excuse to make a traffic stop shows a police dept that needs to be retrained in how to obey the law itself. Would that stop have been made if they were not already looking for any excuse to make a stop? How many stops for 5 over have they made in the past? These may have been a part of the Court’s considerations in overturning this conviction – even if not explicitly addressed in the decision.

    I am amazed at the arrogant and nonchalant attitude of the police in illegally planting the tracker. He knew it was illegal and just went ahead anyway. I lean towards Brett’s position that this attitude indicates we should presume other behavior outside legal limitations.

    IANAL, (haven’t even played one of TV) so this is just a civilian perspective.

    1. Yeah I think we are going to see a lot of right-left agreement on this one.

  4. Agree with Prof. Kerr that the Fourth Circuit’s decision was incorrect.

    While we like to think “the law” is clear and sterile, in the real world it’s not.

    Obviously the cops should have been better prepared–they already had Terry under suspicion and probably could have obtained a warrant earlier.

    At the same time, I don’t see any egregious wounds to personal liberty, society, or the Constitution by their actions.

    1. One point about the standard implicit in this statement:

      “I don’t see any egregious wounds to personal liberty, society, or the Constitution by their actions.”

      The wounds have to be egregious before they are addressed? By this formula, I am not even sure that the original acts by the King’s agents in executing general warrants were egregious either. If you weren’t smuggling good and didn’t have illegal contraband, why would you object to government agents rifling through your things to make sure, right? There is nothing egregious about making sure the law is upheld, is there?

      I actually think your idea that government actions have to produce an “egregious wound” to be of concern kind of turns things on its head. The core idea behind the 4th Amendment is that we cannot blindly trust government agents, who, at the end of the day, are just people like the rest of us. If we could blindly trust them, there would be no need for a 4th Amendment, right? If you are to pay taxes to the government to pay for law enforcement, why shouldn’t you pay also pay a “tax” in the form of your personal belonging being randomly searched?

      To put it another way, the 4th Amendment is designed to prevent egregious wounds in the first place. Not simply address them after they have already happened. If you have a habit of blind trust of government agents (even though, most of them are people of integrity), I think that is something to think more carefully about.

      1. I wasn’t developing a standard–just stating in this particular case, there isn’t a big problem.

        Just FYI, I don’t have a blind trust in govt agents.

        I will say, as a retired federal agent, you should trust govt agents as much or as little as you trust a priest, doctor, lawyer, banker, teacher, etc.

        They’re regular people just like you and I after all.

        1. I trust them less because (1) they have more unchecked power and (2) many people self-select for law enforcement because they are bullies, and agencies do not do nearly enough to keep people like that from getting jobs.

    2. The egregious wounds happen later, after you’ve given the police an incentive to apply for warrants dishonestly. Responding to incentives, they will make such dishonesty their regular procedure.

    3. “I don’t see any egregious wounds to personal liberty, society, or the Constitution by their actions”

      Words fail. Police can track you just because the want to and then they can lie about it to a court.

  5. Always default to the maximum penalty for government agents.

    Reverse the conviction and dismiss the charges with prejudice.

    The police agency should fire the government agents for knowingly violating a person’s civil rights.

  6. Blatant disregard for the law is blatant disregard for the law.
    The cop was a trained officer, knowledgeable of the warrant procedure. The car was known, and could have been located later for legal placement of the tracking device. The courts are there to protect us from this type of illegal behavior. In a just world, the officer would be disciplined.
    Quis custodiet ipsos custodes?

  7. Accepting the validity of an exigence exception, where was the exigence here? They located his car by following it from his home where he parked the thing, and tracking it didn’t turn up interesting data until two days later, so why was it so urgent that they plant the device in the parking lot before getting the warrant? Convenient, yes, but convenience is not exigence.

  8. Orin, strictly off the cuff speculation but many, maybe nearly all, automobiles in the past 15 or so years have GPS already installed for ’emergency services’, i.e, GM’s “Onstar” system; typically they are integrated with a hands free cell phone and send location data under certain circumstances. Why that may be relevant is two fold; first, if your car already does this, then is there an expectation of privacy in not having your location sent to a third party? If you’re already sharing it with others, what’s the harm in this? Second, I can kind of see an argument that the installation, per se, of the GPS unit is not the violation of the 4th amendment but the ‘turning it on so the police can track you’; imagine, for a moment, the police did not install GPS unit but instead, had the GPS unit already in car turned on and they tracked the car by installed GPS unit. I think they would need a warrant for that; but only for having it turned on and accessing the data. Just putting the unit in the car, upon probable cause, doesn’t necessarily strike me as 4th amendment violation.

    1. I don’t think Onstar actually tracks your car continuously. Only when you tell it to, or it is triggered by indications of a collision.

      So, yeah, you do have an expectation of privacy, much as you have an expectation of your personal location being private, despite carrying around a phone with GPS capabilities.

      In fact, I recently rejected a proposal from my auto insurance carrier to lower my rates, because it required GPS tracking, (Supposedly only to determine drying style.) and I objected to the privacy violation.

      1. It’s cute you think you have privacy in public.

        With ubiquitous cameras (poles/bldgs/cells), cell phone towers, police license plate readers, toll readers (EZ Pass and now some states just read your license plate), there’s very little–if any–privacy in public.

        1. I have privacy in public at the moment, in the sense that the government can’t continuously track me with minimal difficulty, as they could if my phone GPS were continuously on and reporting to them.

          Not, of course, in the sense of being invisible…

        2. Remember that anything that isn’t the government isn’t so much restricted by the 4th. It isn’t privacy from everything and everyone. It’s privacy from the government. In your list, only government owned cameras and LPR’s are accurate in reducing public privacy as it applies to the 4th.

          Toll readers, cell towers, privately owned cameras; those are not the government. The protection of the warrant being required applies to all those. So yes, there is still a good bit of ‘privacy from the government’ even in public places.

          1. Agree but BB was talking about keeping his driving patterns private from an insurance company so. . . .

            1. Well, what with the third party doctrine, it very much weighs on privacy from government.

  9. It makes sense that a fraudulently obtained warrant wouldn’t qualify as “supported by Oath or affirmation”. The 4th Amendment is supposed to protect. How does it protect if police are allowed to be intentionally dishonest on warrant applications?

  10. Placing a tracking device on anything without a warrant before the placement seems very intrusive. What if they put a listening device in the car. Wouldn’t they need a warrant for that even if they don’t turn it on? It seems to be the potential for abuse of the tracker (or listening device) is very high during the period of time between placing the device and getting the warrant and even afterwards. It is easier to verify a package is not opened then whether a tracker or bug is turned on temporarily as a practical matter.

  11. I’m not sure why the Fourth Amendment doesn’t permit the governemnt to install a GPS device on an exigent circumstances theory without a warrant when the government knows the location of the car as long as the government has probable cause and gets a warrant right away to allow its use.

    My personal opinion is that the definition of exigent circumstances needs to be significantly narrowed.

    Mere convenience for the police should not qualify. Only two things should qualify as exigent circumstances:

    1. The police have probable cause to believe that someone will die without immediate action.

    2. The police have probable cause to believe that the destruction of specific evidence is imminent.

    Even with those two cases, such a circumstance that was created by the police themselves does not qualify as exigent.

    1. I think perhaps one that specifies not just destruction, but that allows for a lack of availability to access the item.

      Say if the car were going on a long trip (we’ll go with a nefarious line here and say it’s a drug pick up) and they learn it’s going to happen in a short time-frame that is prohibitive of getting a warrant and getting the tracker on in time prior to it’s departure.

      Not sure how that would be worded, but imminent unavailability seems apt.

      Not arguing against narrowing, I agree with that part.

      1. “but imminent unavailability seems apt.”

        I disagree. As long as it still exists, it can become available again later. This just amounts of convenience for the police.

  12. Jones held that installing the GPS device was a search

    Apart from the incidental “search” that would happen as part of looking at the car to install it, I can’t see how that’s a “search”.

    Now, using the GPS device to get information about the car is a search, yes.

    But that’s a super-important difference; “installing it” vs. “actually tracking it/receiving and storing the data” seems significant, just like the difference between “stopping that piece of mail” vs. “opening it up to look inside”.

    (I don’t want a State that installs GPS trackers willy-nilly, either, which is why a “installation must be immediately followed by a warrant application” is a fine guideline.

    Not sure how they’re gonna manage to uninstall it if the warrant is denied, but equally if any tracking data is simply not listened for/kept, that’s not terrible – especially since without a warrant none of it will be admissible in court and is likely to poison any evidence it leads to.)

    1. “but equally if any tracking data is simply not listened for/kept, that’s not terrible ”

      If you actually believe that it’s not listened for/kept. Which you shouldn’t.

      ” especially since without a warrant none of it will be admissible in court and is likely to poison any evidence it leads to.”

      If you actually believe they’ll tell the court that the evidence they’re relying on was led to by the evidence they illegally collected. Which you shouldn’t.

      Let’s not pretend that parallel construction isn’t a thing in American law enforcement.

  13. The delay of a package is not really relevant here at all because it’s a question of bailment – the government already has nominal possession (through the USPS) and is simply delaying handover (and scheduling mail delivery is already part of the function of the USPS). For the mail equivalent to be relevant you’d have to assume the suspect handed his car over to a valet and the government called up the valet and said “tell him there’s a problem and delay handing over the car until we can get there with a warrant and a GPS unit.” There’s no actual search involved there.

    I’d also say suppression is the proper result if the court found a constitutional violation because any other result encourages further violations. It’s why the exclusionary rule came into existence – the court disagreed with Cardozo’s view of the blundering constable. As Judge Friendly found “The sole reason for exclusion is that experience has demonstrated this to be the only effective method for deterring the police from violating the Constitution.”

    1. Why do the police care if occasionally a violation results in evidence suppression? They don’t get punished and their superiors don’t care unless it happens in a high profile case.

      Judge Friendly perhaps should have considered that money damages are superior to punishing law abiding citizens by letting criminals go free.

      Get rid of qualified immunity, violations will go down.

  14. If they couldn’t get the warrant first because they would have possibly lost access to the car, oh well. Terry wouldn’t have been the only bad guy getting away that day.

  15. Suppose all cars came with a GPS device, that you can’t lawfully remove, and that the cops could access it, but only if they have a warrant?

    1. On what grounds could Congress pass a law requiring all cars to have GPS and forbidding you from disabling it without themselves violating the Fourth Amendment? The law itself would be unconstitutional.

      1. When you assume the answer to the question, that certainly makes it easy enough.

  16. While I agree that certain arguments could have been made for inclusion of the evidence; if my memory serves correctly courts have found that officers are allowed qualified immunity if they reasonably believed they were not taking unconstitutional actions, shouldn’t the opposite also apply? If the officer believed he was taking unconstitutional action (as he stated was so) shouldn’t the results of that action be tainted?

    1. No, it’s one of those “heads I win, tails you lose” deals.

    2. Reasonable to infer that officers knew that action was unconstitutional by the fact that they chose not to mention to the judge that they had already planted the device.

  17. We can look to the police’s actions to determine whether they believed that their action was in violation of the law. That the police chose to cover up the fact the GPS was already planted suggests that they knew this was wrong. Had they chosen to be fully above board, told the judge that the GPS was planted on the car as a matter of exigency, and demonstrated to the judge that should the warrant be denied that they had a means to remotely and permanently deactivate the GPS (no fair using the GPS to find the GPS), then all could be forgiven.

    But the police behaved as if it was wrong to have placed the GPS first, and thus we should take their inference into consideration, desiring to err on the side of rights for the accused.

  18. One of the big reasons not to allow this would be to avoid a good faith exception. Imagines police officer A places a GPS without a warrant, knowing it’s constitutionally impermissible. But what if another police officer, who doesn’t know whether or not there is a warrant (or is lied to that there is a warrant or has some other reason to believe there actually is a warrant) does the tracking? That evidence might get admitted in court anyway then regardless of the violation.

    1. In fact, a standard form of parallel construction already in use by American police.

  19. re: #1 – No because there is no inherent time-sensitivity in a case involving a car like there is for the mail. If you don’t immediately stop the mail, it passes out of your custody and can not be recovered before it is delivered. In a car, you can fairly easily find the car again. It may take a day or two but the car is highly unlikely to be destroyed or lost in the meantime.

    If that adds a delay to your case, well, so do lots of things that we still require warrants for.

    re: #2 – Subjective intent is only relevant because precedents have said that subjective intent the other way. If police are allowed a good-faith exception, then there should certainly be a legitimate inquiry when you have actual evidence of bad faith.

    Personally, I think that entire standard should be junked. Police should be held to a standard as experts on the law. Maybe not for minutia about complex environmental law but the basics of how to comply with the First, Fourth and Fifth Amendments seems like something you should know pretty darned well before you’re allowed out of training. At the very least, they should be held to the same standard they hold us to – ignorance is no excuse.

    1. I’d settle for a significant increase in tactical arms usage training–like when NOT to shoot, de-escalation techniques, and alternative use-of-force methods.

  20. This case seems fairly straight-forward and correctly decided. Jones was decided on the basis that the police committed trespass and thus an illegal search. Can a warrant cure that trespass? Or can we just ignore it and pretend that the trespass is readily divorced from subsequent searching done pursuant to a warrant?

    Consider if police secretly installed a camera in your living room and got a warrant after-the-fact, only turning it on or using recording from that point. Whatever technical trickiness or mere ickiness there is, the prophylactic exclusionary rule is designed to stomp out such overreach.

    The exigent circumstance argument is one potential avenue, but absent truly special circumstances would be such a broad avenue as to entirely vitiate the trespass rule of Jones as it pertains to installing GPS devices on cars.

    Another consideration given these facts is whether the warrant application was untruthful or otherwise in bad faith. What evidence were the police expecting to find via GPS tracking? Or was it pretext, expecting to find a violation of traffic law sufficient to authorize a stop that would allow collection of possible drug evidence? Otherwise wouldn’t the police wait until the GPS brought them to the evidence they were after? A pretext can be fine, of course, but here it flowed from an illegal search, as the placement of the GPS was held in Jones, and raises major questions about the warrant application itself.

  21. Installation of a “tracker” without a warrant is unreasonable per se in my view. Looking for a kidnpap victim might be the only exception.

    The police can obtain the registered address of the car owner at any time so can just wait for the car to reappear after the warrant is issued.. No need to bug first, warrant second.

  22. Interesting that neither the Fourth Circuit nor district court opinions cites Fed. R. Crim. P. 41(b)(4): “[A] magistrate judge with authority in the district has authority to issue a warrant to INSTALL within the district a tracking device.” Seems somewhat of a slippery slope to allow ACTIVATION of surreptitiously pre-installed devices.

  23. “Assuming that the government needs a warrant to install a GPS device, I’m not sure why the Fourth Amendment doesn’t permit the [government] to install a GPS device on an exigent circumstances theory without a warrant when the government knows the location of the car as long as the government has probable cause and gets a warrant right away to allow its use.”

    What does “exigent circumstances” mean? In lay English, it means situations such as: somebody’s life is in danger, or a house might be about to catch fire. Situations of this type seem to not apply here. Nobody was going to die and no house was going to catch fire if they didn’t attach the GPS device.

    Is it an exigent circumstance if somebody goes free who might (speculatively) have been dealing in drugs? In Missouri v. McNeely the Supreme Court wrote:

    (continued in next comment due to size limit)

  24. (continued from previous comment)

    A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement’s need to provide emergency assistance to an occupant of a home, … engage in “hot pursuit” of a fleeing suspect, … or enter a burning building to put out a fire and investigate its cause. As is relevant here, we have also recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence.

    These examples don’t seem to apply here. No need for emergency assistance, no hot pursuit, no imminent destruction of evidence. Merely a desire to catch a suspected (not known) drug dealer with no obvious threat of violence to person or property.

    As a matter of public policy, we need to make sure “exigent circumstances” really are exigent. If the precedents say otherwise, they need to be overridden.

  25. [I]t also seems relevant that the officers actually did have a warrant for the GPS device at the time the location tracking occurred. … Why isn’t the attenuating circumstance here the obtaining of the warrant?

    Obtaining the warrant doesn’t seem like an attenuating circumstance because it is not necessarily an intervening event. The officers may have gotten the warrant precisely because they had the GPS unit installed already.

    Think of it by analogy to a confirmatory search. Officers obtain probable cause to search a residence. But rather than take that probable cause directly to a magistrate, they first enter the residence unlawfully to make sure it is worth going to the trouble of going to a magistrate. If they do this, many courts will consider the subsequent warrant tainted.

    The same applies here. Officers gained probable cause. Then they effected an unlawful search. And because they had attached the GPS unit already, it was worth going to the trouble of going to the magistrate.

    Now, I hear you say, “but officers can obtain probable cause to search a residence, then control access to the residence while they apply for the search warrant.” Sure, and maybe they should be able to control access to the vehicle while they apply for a GPS warrant. But controlling access is like detaining a package. Actually placing the GPS unit is like opening the package or entering the residence.

  26. “The warrant application did not tell the magistrate judge that the officers had already installed the GPS device earlier that day.”

    Full stop. Jail the officer for perjury and toss anything from the poison tree.

  27. “The warrant application did not tell the magistrate judge that the officers had already installed the GPS device earlier that day.”

    Full stop. Jail the officer for perjury and toss anything from the poison tree.

  28. It is cases like this that lead lawyers to make excuses for the police and come up with new exceptions to the Fourth Amendment. And thus our Constitution is slowly eroded. The default must always be “get a warrant” unless absolutely necessary, and this case, along with many others over the years, does not come close.

  29. IANAL. I get so frustrated with our whole approach to adjudication. Given phones with GPS, and cars with factory GPS standard, the whole issue of police-installed trackers is nearly moot. (Is there a word for incipient mootness? 🙂

    But because of the rules of standing, it will take 10-20 years of abuse before abuse of today’s new gadgets come before SCOTUS. Then when it gets there, the justices will use tortuous Talmudic analogies to obsolete technology to make a decision, and by the time they render it, the specific technology will be history anyhow. (For example, they are still making analogies to the pen register from Smith v Maryland, even though today’s technology make pen registers as old as stone tablets.)

    In a world where changes come at accelerating rates, the slow judicial system makes the courts ineffective in protecting our rights contemporaneously. IMO, we need decisions that are forward-looking and technology-independent and based on principles that don’t change so fast, not analogies to past decisions.

  30. Everyone seems to neglect that the GPS device is always on, the search is active from the point in time it was attached. It has to be listening in order to dump the data it has accumulated. Otherwise they would have to access the car again to flip the switch to the “ON” position, negating the advantage of placing before they have a warrant.

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