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July 27, 2011

Supreme Court to Decide GPS Case

The United States Supreme Court is going to decide next year whether the warrantless use of a GPS tracking device on a defendant's vehicle to monitor its movements on public streets violated the Fourth Amendment. The case is United States v. Jones, Supreme Court Docket No. 10-1259.   (You can read my various takes on this issue here.)

TruckA related —  but equally important —  question involves who has standing to challenge GPS tracking.

This issue was raised in United States v. Hernandez (Fifth Circuit No. No. 10-10695, July 18, 2011).

  In this case, federal agents inserted a GPS device on the defendant’s brother’s truck. The agents later learned through a wiretap that the defendant would be driving the truck to pick up drugs. Using the GPS device, the agents tracked the defendant, stopped him, and discovered 20 pounds of methamphetamine.

In this case, the government argued that the defendant did not have standing to challenge the placement or use of the GPS device. Under Fourth Amendment doctrine, the ability to raise a challenge to a search does not require an ownership interest (athough this is important), but just a legitimate expectation of privacy.  For example, people have a legitmate interest of privacy in hotel rooms and phone booths. 

The court concluded that the defendant lacked standing to challenge the placement of the GPS device on his brother's truck. This is because he did nto own the truck or, apparently, regularly use it.  However, the defendant did have standing to challenge the use of the GPS device while he was driving the truck.  The court based its conclusion on that idea that “where a person has borrowed an automobile from another, with the other's consent, the borrower becomes a lawful possessor of the vehicle and thus has standing to challenge its search.”

The court went on to hold that the government's use of the GPS device without a warrant did not violate the Fourth Amendment.  Since the Supreme Court will be deciding this issue, I won’t discuss this aspect of the opinion. 

The standing issue is interesting, however.  The court seemed to focus on the property rights aspect – whether someone could lawfully be in the in the car when it was tracked.  But this analysis seems too simplistic.  A better approach would be to have the court consider whether the person being tracked had a privacy interest independent from a property interest.  Either way the question is analyzed, this opinion suggests that if the Supreme Court prohibits the warrantless use of GPS devices, passengers and others who are permitted in a car will be permitted to raise the issue in court.  If the court had ruled differently, then police would be able to place a GPS device on a car and use the information obtained against passengers even if the owner’s or driver’s rights were violated.




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