Is ‘real-time’ GPS tracking constitutional?
A federal appeals court last week considered whether police crossed some constitutional threshold by using a GPS device that provided real-time updates as to the whereabouts of a suspected drug trafficker’s automobile.
To date, most Fourth Amendment cases addressing Global Positioning System (GPS) tracking devices have involved surreptitiously installed devices that store data about a vehicle’s location. Police later obtain the data when they recover the device from the suspect’s automobile.
But federal agents and local police used a new-fangled GPS tracking unit when they decided to find out what Juan Cuevas-Perez was up to back in 2009. The GPS device that police attached to his Jeep Laredo was programmed to send detectives text message updates of its location every four minutes.
Cuevas-Perez had come to the attention of federal Immigration and Customs Enforcement (ICE) agents and Phoenix, Arizona, police in connection with a drug distribution investigation.
Around noon on February 6, 2009, Phoenix detective Matthew Shay attached a GPS tracking unit to Cuevas-Perez’s Jeep while it was parked in a public space. The detective had not obtained a search warrant beforehand.
For the next 60 hours, the device allowed Detective Shay to track Cuevas-Perez as he traveled through New Mexico, Texas, Oklahoma, Missouri and Illinois.
Finally, ICE agents in touch with Detective Shay asked the Illinois State Police to take up visual surveillance. On February 8, Illinois state troopers pulled Cuevas-Perez over for a minor traffic violation and a drug-detection brought to the scene alerted to presence of narcotics.
Sure enough, the officers discovered nine packages of heroin when they searched the Jeep.
Cuevas-Perez argued before a federal judge in Illinois that the warrantless use of the GPS device violated his Fourth Amendment rights.
The lower court denied Cuevas-Perez’s motion to suppress, following 7th Circuit precedent that GPS tracking does not constitute a search under the Fourth Amendment.
On appeal, Cuevas-Perez argued that circuit precedent addressing crude GPS devices that merely recorded and stored a vehicle’s location did not govern the lawfulness of more sophisticated GPS devices that provide real-time tracking information to law enforcement.
This issue split the 7th Circuit panel that heard Cuevas-Perez’s appeal. Unfortunately for Cuevas-Perez, the majority sided with the government in upholding his drug conviction last week.
Judge Richard Cudahy wrote for the majority that “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. …
“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.” (U.S. v. Cuevas-Perez)
Judge Diane Wood expressed frank concern with the Orwellian aspect of real-time GPS tracking by government agents.
In her dissent, Judge Wood argued that a warrant should be a prerequisite for using the type of GPS device used to nab Cuevas-Perez.
“To conclude that open-ended, real-time GPS surveillance is not a ‘search’ invites an unprecedented level of government intrusion into every person’s private life,” Wood wrote. “The government could, without any metric of suspicion, monitor the whereabouts of any person without constitutional constraint. Under the majority’s view, such surveillance is tolerable.”
- Pat Murphy
