Question: Is attaching and monitoring a GPS device on a suspect’s vehicle a Fourth Amendment “search”?
Quick answer: Yes. You should get a warrant first.
Facts: The FBI suspected Jones of drug trafficking. The agency arranged for surveillance of Jones’ nightclub, placing cameras on the front entrance of the nightclub and wiretapping Jones’ cell phone. A joint task force also got a warrant to install a GPS device on Jones’ Jeep Grand Cherokee. But the task force did not install the GPS until the day after the warrant expired. The task force then monitored Jones’ movements for the next 28 days. Based on the evidence collected from the GPS, Jones was convicted of conspiracy to commit drug trafficking.
Why the case is important: While most officers are trained on the “reasonable expectation of privacy” test, the Supreme Court instead found that the government violated the Fourth Amendment on a more basic level — by physically trespassing on a private citizen’s property to collect information. But the court explained that, depending on the type of government intrusion, a physical trespass test or a “reasonable expectation of privacy” test could apply to the intrusion.
Keep in mind: Under this case law, you should remember that an intrusion on a person’s physical property will be a Fourth Amendment violation even when the property is in public and there is no “expectation of privacy.” So before installing a GPS device on a suspect’s vehicle, get a warrant and make sure to install and monitor the GPS within the limits of the warrant.
You also should speak with legal counsel about whether to end all current warrantless GPS monitoring because that evidence now may be suppressed and the case may get dismissed. Also, if warrantless GPS evidence was used as probable cause to arrest a suspect, you should mention this to counsel because it also may cause a future legal problem.
to read the entire opinion.