W.D.Tex.: Only two hours of warrantless GPS monitoring doesn’t offend Jones

Two hours of GPS monitoring didn’t implicate Jones’s reasonable expectation of privacy standard because it wasn’t long term. Defendant didn’t own the vehicle with the GPS device on it, but he was an authorized driver, and that gives him standing. The standing case law supports that even pre-Jones, and Jones did nothing to alter standing analysis. United States v. Devora, 2015 U.S. Dist. LEXIS 46621 (W.D. Tex. April 6, 2015):

A long line of cases applying the Katz inquiry in this and other Circuits has consistently held that the short-term use of a broadcasting beeper or GPS device to monitor the movements of a suspect on public thoroughfares does not implicate the Fourth Amendment. See Hernandez, 641 F.3d at 220-21 (collecting cases). Indeed, the Supreme Court has explicitly held as much: a “person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” United States v. Knotts, 460 U.S. 276, 281 (1983). Jones did not abrogate this holding. Even Justice Alito’s concurring opinion, which applied the Katz test to the monitoring at issue in Jones, concluded that under Knotts “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.” Jones, 132 S. Ct. at 964 (Alito, J., concurring).

The monitoring at issue here was not sufficiently extensive to intrude on Defendant’s reasonable expectation of privacy. The testimony of Special Agent Shary revealed that Defendant’s movements were monitored while he traveled from Providence Hospital to 331 Temple Court, in El Paso, and the entire episode concluded in a matter of hours. That is not the kind of extensive electronic surveillance that the Jones plurality found impinges on recognized expectations of privacy. Because there was no trespass to Defendant’s possessory interests or an invasion of his reasonable expectation of privacy, the Court denies Defendant’s Motion. See Hernandez, 647 F.3d at 221 (finding no Fourth Amendment violation where the defendant’s “movements were recorded over a single cross-country trip” and the defendant “was not subject to continuous, around-the-clock electronic surveillance over [an extended period of time]”).

I don’t have to agree with them; I just report them, sometimes with comments from the plain and ordinary to outright snarky. Alito’s concurrence isn’t the crux of Jones, and this is wrong. Whether the Fifth Circuit will agree is another matter. [You should see what I put up with at home from result oriented decisions from my state supreme court, but I don’t give up. Remember Pepé Le Pew memorialized down the right margin.]