By on April 29, 2011

The US Court of Appeals for the Seventh Circuit ruled yesterday in favor of police officers who attach GPS tracking devices to vehicles without first obtaining a warrant. The three-judge panel insisted searches of this sort do not violate the Fourth Amendment after considering the case of Juan Cuevas-Perez.

On February 6, 2009, Phoenix, Arizona detective Matthew Shay attached a tracking device to Cuevas-Perez’s Jeep Laredo while it was parked on the street. He did not bother to ask a judge for a warrant. By February 8, the device had tracked the Jeep driving through Missouri. After sixty hours of use the GPS battery died so Shay had other law enforcement agencies track the Jeep to its ultimate destination in Illinois. After following Cuevas-Perez for forty miles, an Illinois State Police pulled him over for “remaining in the left-hand passing lane,” a violation almost never enforced by the department. A subsequent drug dog search uncovered nine packages of heroin.

Seventh Circuit already ruled in a 2007 case that secretly installing a GPS device on a vehicle did not constitute a search because the unit provided the same information that could be had from an officer physically following the car. In light of the November US v. Maynard decision from the DC Circuit striking down GPS searches lacking judicial approval (view ruling), the Seventh Circuit judges re-examined the issue. The judges concluded that the twenty-eight-day surveillance in DC could not be compared to the sixty-hour tracking in the present case.

“Unlike in Maynard, the surveillance here was not lengthy and did not expose, or risk exposing, the twists and turns of Cuevas-Perez’s life, including possible criminal activities, for a long period,” Judge Richard D. Cudahy wrote for the majority. “As the Maynard court noted, the chances that the whole of Cuevas-Perez’s movements for a month would actually be observed is effectively nil — but that is not necessarily true of movements for a much shorter period.”

Lawyers for Cuevas-Perez also argued that the tracking device in this case was far more advanced than those used in prior precedents. The device was capable of sending real-time location updates every minute, whereas the systems in previous cases required physical retrieval of stored information.

“We do not consider this particular advancement to be significant for Fourth Amendment purposes in general: real-time information is exactly the kind of information that drivers make available by traversing public roads,” Cudahy wrote. “The historical data gathered and stored on comparatively primitive GPS devices is actually less akin to the publicly-exposed information on which the Fourth Amendment permissibility of GPS tracking is based.”

Judge Diane P. Wood disagreed with the majority’s interpretation, arguing it leaves open the possibility of mass surveillance restrained only by the financial resources of the police department.

“If the Fourth Amendment is out of the picture, then it makes no difference whether a police officer subjectively had a good reason to activate a device that he attached, if he acted on a whim, or if he was systematically using devices put on every car in a bad part of town to see where the drivers might be going,” Judge Wood wrote in her dissent.

Wood argued that Congress could step in and provide appropriate requirements for use of surveillance devices as it has done in the past. Judge Joel M. Flaum agreed with Cudahy’s reasoning but added that the implications of the ruling are troubling.

“If the doctrine needs clarifying, tweaking, or an overhaul in light of technologies employed by law enforcement, that additional guidance should come from the Supreme Court,” Flaum wrote in a concurring opinion. “The matter is, as they say, above our pay grade.”

A copy of the decision is available in a 300k PDF file at the source link below.

Source: PDF File US v. Cuevas-Perez (US Court of Appeals, Seventh Circuit, 4/28/2011)


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37 Comments on “Federal Court Endorses Warrantless GPS Tracking...”

  • avatar

    “After following Cuevas-Perez for forty miles, an Illinois State Police pulled him over”

    Holy crap – can you imagine how nervous he was after being followed for FORTY MILES with 9 kilos of heroin in the car?

  • avatar

    The dumb part is how everyone keeps calling the tracking transmitters “GPS devices”. Oh well.

    • 0 avatar

      A “GPS device” can receive (time) signals from GPS satellites and perform calculations with the information in those signals to to determine the position of the receiver. A “GPS device” has no way to transmit the information – it can be displayed on the receiver or stored in memory. I would guess the addition of a “transmission” part would be done with some cellphone radio consisting of text messages or various messages on an internet connection through the cellphone radio. Or some other kind of radio system. But a simple GPS device itself has no transmission capability.

  • avatar

    The author’s sentence about the Illinois state cops pulling the guy over for left-lane camping, that it is was a seldom-enforced infraction, was the best part. Apparently we’re supposed to summon up some sympathy for the poor, beleaguered heroin trafficer at this point? Interesting.

    Glad see that at least once, someone’s state highway police got after a left-lane bandit!

    • 0 avatar

      The issue here isn’t how criminals are treated, but how citizens (including you) are treated.

      Keep in mind the presumption of innocence, and the fact that you can’t really tell criminals from citizens without a court hearing. In other words, this could happen to you or me, and with the large number of laws that are passed every year, you might not even know you’re a criminal for having or doing something in a state you happen to be visiting….

      • 0 avatar

        You can take off your tin foil hat, Luke.

        For the police to want to use a GPS tracker, they are going to need some information on you and what are you are doing. Else, it is a complete waste of time for them. Departments don’t have huge budgets to track everyone.

        No also, on the “large numbers of laws passed every year” and not knowing you are doing something wrong in a different state, again, pretty much nonsense. It is up to the citizen to know the laws. If it is one of these “criminal offenses”, you should already have a pretty good idea of what those are. There aren’t too many criminal laws passed every year. Civil offenses are different, like speeding tickets and other minor things. But again, as a citizen of the country, it is your responsibility to know this.

  • avatar

    I have no sympathy for the heroin trafficker but this was a horrible decision to anyone who cares about civil liberties at all. There has been too much abuse of civil liberties in the name of the drug war already. Like it or not police are only human and do abuse their power too. It’s not worth complete safety if we becomme a police state.

  • avatar

    The next logical step is tracking the rest of us routinely, since that is what the goal is. The UK government is blazing a trail already in that regard. It doesn’t matter that he had 20 lbs of H in the car, that’s not the point. Just because a really bad actor was taken out it doesn’t justify the means it was done. This is how precedence is set for future laws and rules of behavior.
    Maybe a number of you don’t mind being tracked, some of us don’t. If it’s such a great thing volunteer by signing up for Onstar or some other service that watches over you in case you need help but can’t ask for it. Check on your teenagers with this technology, after all they are under your roof, or if your job demands it have your company know where you are at all times.
    But for heaven’s sake let’s not grant The State a data stream on our movements suitable for data mining. The avenues for abuse are numerous, including revenue enhancement, hacking, or just general tom foolery by agencies with less than honorable intentions.
    Rather than depend on court decisions to shape this issue encourage those you vote for to draft legislation that clarifies what is acceptable. In the absence of leadership anything is possible.

    • 0 avatar

      You know, police officers who can get GPS tracking devices to put on cars just have a huge amount of time lying around to do this to everyone. If everyone has all this time available, it would be the same as doing this the old fashion way of stakeouts with taking pictures. This didn’t require a warrant either.

      GPS tracking does the same thing, without photos, and saves money for the department. It is a good tool for them to have.

  • avatar

    VERY well said, GS650G!

  • avatar

    While I agree the same information could’ve been gathered by following the car, the difference is the assumption of privacy.

    Police all over the country are pinning felony wiretapping charges on people, ruining their lives, for them taking video and photos of officers who are out in public, on duty. I’d say there’s no assumption of privacy for an on-duty cop on the street, but there is an assumption of privacy driving down the street with nobody following you. Can’t have it both ways. If this is legal, then so should be taking video of cops.

    • 0 avatar

      It’s amazing how much of the US population has no problem with double standards. [shakes head sadly]

    • 0 avatar

      Carve, your post isn’t 100% true.

      Audio recordings without the consent of all parties can be illegal in different states. Video is not the problem, but video with audio is. To legally get wiretaps, police must have warrants. Again, this has nothing to do with officers and photos. This has to do with recording audio and who knows that they are being recorded.

  • avatar

    Strictly speaking, the Fourth is not violated since “tracking” (ie, following electronically) is neither a search nor a seizure. The wording of the amendment clearly expresses what the Founders meant. Not that the courts have often gone along with the Framer’s intent, but they should.

    Now, people may not like an “intrusion” into one’s “privacy” (this begs the question as to how private one can be on a public street?), but if we go by the wording of the Constitution, it is difficult not to understand the ruling. And for those who worry about “civil liberties,” I only want to point out that the Framers were not libertarians in the modern sense of the word, at all.

  • avatar
    gator marco

    Love the last line: “The matter is, as they say, above our pay grade.” So Appeals court judges believe that 4th Amendment violations are above their pay grade? Yup, then the STATE will take over all our lives. We just exist to work to pay taxes.

  • avatar
    Robert Schwartz

    Judge Diane P. Wood is the alpha liberal on that circuit. She was short listed by BO when he appointed the Wise Latina and the Fat Girl to SCOTUS.

    • 0 avatar

      Maybe he should have appointed her to parlay with the four alpha conservatives on the Supreme Court – to use your quaint language, the black one, the italian mafiosa one, the bald one and the white patrician one

      • 0 avatar
        M 1

        Maybe you should double-check the origin of “Wise Latina.”

      • 0 avatar

        M1 – I know the origin, but in arguably a different context (context does matter). Fat Girl I don`t believe was spoken by Kagan so the wordplay I did still stands.

        On the more substantive point I do agree with MikeAR that give anyone (police included) too much power and bad things will happen. I also agree that the Framers were not libertarins in the 21st century meaning of the word.

    • 0 avatar

      I can’t speak to Judge Wood but the judge who wrote the majority opinion is a Carter appointee: On May 22, 1979, Cudahy was nominated by President Jimmy Carter to a new seat on the United States Court of Appeals for the Seventh Circuit.

  • avatar

    There are two parts to this.

    1. Left-lane-lookieloos aren’t pulled over EVERY time. They SHOULD BE.

    Waitaminute, what was the other thing?

  • avatar
    M 1

    “the unit provided the same information that could be had from an officer physically following the car”

    So it’s legal for police to put someone under surveillance 24/7 without a warrant?
    (I’m really asking, I don’t know.)

  • avatar

    Well I wonder how it will be before jammers for these devices are made illegal? If I was doing something illegal, that would be the first thing I would purchase. As a matter of fact, we should all purchase one anyway.

  • avatar

    If you find one on your car, reattach it to the mail truck. Or a westbound semi. Or a container ship bound for China. Or my favorite, a cop car.

    I read a rather humorous story about how the spooks came looking for their device when it was discovered, removed, identified and disabled. They wanted property of the government back that was attached to private property. Didn’t get any info off the tracker but they had destruction of government property as a charge.

    While we ponder the constitutionality of creating a database on our movements, in a plain building somewhere a nerd is creating software linking data feeds from test vehicles in a really cool app. You and I won’t know about it but just think of the possibilities.

    Fortunately there are not too many places to hide these toys on my bicycle. And I get to run through yellow lights with cameras without getting a big ticket in the mail too.

    • 0 avatar
      SVX pearlie

      This story?

      Apparently, the Fourth Amendmend doesn’t apply if you’re Muslim and exchange any e-mail with a someone who suspected to be a “terrorist”.

      Imaging if that other guy were into kiddie pr0n. Probably he’d be hanging by his thumbs in a windowless jail…

  • avatar

    How about we put a tracker on every judge’s car? And every cop’s personal vehicle, while we’re at it.

  • avatar

    You all don’t get it, do you? You get hung up on the blatently conspicuous issues like warrantless tracking of individuals when the government already is tracking your every move through Facebook, Twitter, Amazon, Google, cell phones and a dozen wayys you haven’t even thought of yet. In fact, just by writing this now, have endangered my safety. have talked too much already. must go now. Men in suits are knockin on my door as we speak.

  • avatar

    I get the whole civil liberties thing; I really do. But we’re not talking about wire taps or hidden shower cams or arbitrary “data mining” of innocent civilians. We’re talking about following a vehicle which is in plain public view, and for which there is probable cause to believe that the driver is transporting illegal drugs.

    It’s called police work. And it prevented nine packages of heroin from reaching the local high school. Bring me a case of an innocent person being harassed by the police and we’ll talk.

    • 0 avatar

      You are kidding, right? I’d rather have nine packages of H delivered daily than have the police given free reign to trespass on my property and put trackers on my car. At what point do we sell ourselves down the river in the name of “Law and Order”? Spare me the line that if you are doing nothing wrong you have nothing to worry about. America is trading away everything that made this country something special. By the time people wake up it is going to be too late.

      People are harassed by the police all the time. When I was in college I watched a floormate get abused by a cop who was being a total a-hole. He wound up being arrested and a story in the local paper had the guy as being rounded up for disorderly conduct, open containers, and public intoxication. In fact all he did was mutter a-hole under his breath to the cop when John law stepped on his foot while looking out for the serious crime of inspecting a bar video game for a license to operate sticker. A trivial story, perhaps. But you know as well as anybody else that this type of behavior happens every day, and it only gets more serious. If that’s what we are supposed to take from the man, no thanks. That’s not the America I want. And if a few criminals slip by to protect our rights, well, I am totally fine with that!

      • 0 avatar

        Try again, golden2husky.

        The police did not trespass on the suspect’s property; he was parked on the street. And the story had nothing to do with some guy in a bar being harassed for mouthing off. It was about a drug trafficker being charged under criminal law.

        We might agree that your friend should have the right to swear at police without being arrested. But to use this as an excuse for letting drug traffickers off the hook just doesn’t make any sense.

      • 0 avatar

        Uh, you should try again. I said I don’t want illegal tresspass, but I sure don’t think it is justifiable to do so even it the car is in a public lot. The police should have a court order to track a vehicle, period. You open up a bad door if cops are allowed free reign to snoop on your wherabouts. Just look at what the police are now doing with cellphones…stealing your personal information at will…THIS is the path being opened and the point of my post. Didn’t mean to blur the content with the trespass comment which in my opinion makes it worse. And the bar story was simply an example of why beating the Law and Order line is BS because the police can overstep the existing laws -they do it all the time- and I don’t want to give them even more power to do so. In the case of the drug dealer, I find it hard to believe that they had so litte on him that they couldn’t have obtained a warrant. Lazyness? Maybe. But we should all be wary of allowing more erosion of our rights in the name of “public safety”…

      • 0 avatar

        golden, you are just wrong here. The police can run a stakeout without a warrant. They can have physical surveillance of a suspect without a warrant. GPS tracking allows for the same thing with even less data really. GPS tracking doesn’t allow you to see who the tracked person is meeting with. GPS tracking doesn’t allow you to see what the person did at any place. GPS tracking using some technology to do a similar job with less expenses.

        Could this be abused, sure. So can physical surveillance. So can many other things. This just saves money.

        Your story at the bar really doesn’t mean anything to do with GPS tracking. I have also had many pleasant meetings with police officers. That also doesn’t have anything to do with GPS tracking.

        As long as there is no trespassing taking place to put the GPS unit on the vehicle there is no problem. For those interested, having your car parked in front of your house in your drive way doesn’t necessarily constitute trespassing. If the car is in the garage, that is different.

    • 0 avatar

      “The police should have a court order to track a vehicle, period.”

      Horsefeathers. They can already track a vehicle by simply following it, even using an unmarked car to hide their presence if they like. It’s how bad guys are caught.

      “You open up a bad door if cops are allowed free reign to snoop on your wherabouts.”

      First of all it is hardly “free reign to snoop”. The tracking is limited to an automobile (not a person) tagged in a public place (not your bathroom), for as long as the device battery lasts (not permanent). This is a far cry from Logan’s Run.

      Second, we already open up a “bad door” by allowing cops to carry guns and badges. Shall we take those away too?

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