MA: SW needed to track GPS under state constitution

Massachusetts had already held that a search warrant was required for installation of a GPS tracking device on defendant’s minivan. Commonwealth v. Balicki, 436 Mass. 1, 8 (2002). It now holds that a warrant was required to track the vehicle after installation. Commonwealth v. Connolly, 454 Mass. 808, 913 N.E.2d 356 (2009):

We conclude that a warrant was required here because the initial installation of the particular device clearly constituted a seizure under art. 14. The installation required not only entry by the police into the minivan for an hour, but also operation of the vehicle’s electrical system, in order to attach the device to the vehicle’s power source and to verify that it was operating properly. Moreover, operation of the device required power from the defendant’s vehicle, an ongoing physical intrusion. See Karo, supra at 729 (Stevens, J., dissenting) (insertion of beeper in vehicle is physical invasion and seizure because it infringes on owner’s exclusionary right).

In addition, and apart from the installation of the GPS device, the police use of the defendant’s minivan to conduct GPS monitoring for their own purposes constituted a seizure. When an electronic surveillance device is installed in a motor vehicle, be it a beeper, radio transmitter, or GPS device, the government’s control and use of the defendant’s vehicle to track its movements interferes with the defendant’s interest in the vehicle notwithstanding that he maintains possession of it. The owner of property has a right to exclude it from “all the world,” see Karo, supra at 729 (Stevens, J., dissenting), and the police use “infringes that exclusionary right.” Id. The interference occurs regardless whether the device draws power from the vehicle and regardless whether the data is transmitted to a monitoring computer. It is a seizure not by virtue of the technology employed, but because the police use private property (the vehicle) to obtain information for their own purposes.