The D.C. Circuit held on Friday that a warrant is needed for prolonged GPS surveillance, recognizing People v. Weaver from New York and limiting Knotts. [This is a highly important decision. Every criminal and constitutional lawyer needs to read it.] United States v. Maynard, 615 F.3d 544 (D.C.Cir. August 6, 2010):
Two circuits, relying upon Knotts, have held the use of a GPS tracking device to monitor an individual’s movements in his vehicle over a prolonged period is not a search, United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), but in neither case did the appellant argue that Knotts by its terms does not control whether prolonged surveillance is a search, as Jones argues here. Indeed, in Garcia the appellant explicitly conceded the point. …
In a third related case the Eighth Circuit held the use of a GPS device to track a truck used by a drug trafficking operation was not a search. United States v. Marquez, 605 F.3d 604 (2010). …
In each of these three cases the court expressly reserved the issue it seems to have thought the Supreme Court had reserved in Knotts, to wit, whether wholesale, or mass electronic surveillance of many individuals requires a warrant. Marquez, 605 F.3d at 610; Pineda-Moreno, 591 F.3d at 1216 n.2; Garcia, 474 F.3d at 996. As we have explained, in Knotts the Court actually reserved the issue of prolonged surveillance. That issue is squarely presented in this case. Here the police used the GPS device not to track Jones’s movements from one place to another, Knotts, 460 U.S. at 281, but rather to track Jones’s movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place to place.
…
Two considerations persuade us the information the police discovered in this case — the totality of Jones’s movements over the course of a month — was not exposed to the public: First, unlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one’s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more — sometimes a great deal more — than does the sum of its parts.
a. Actually exposed?
The holding in Knotts flowed naturally from the reasoning in Katz: ―What a person knowingly exposes to the public … is not a subject of Fourth Amendment protection,. 389 U.S. at 351. See Knotts, 460 U.S. at 281–82 (movements observed by police were ―voluntarily conveyed to anyone who wanted to look.). The Government argues the same reasoning applies here as well. We first consider the precedent governing our analysis of whether the subject of a purported search has been exposed to the public, then hold the information the police discovered using the GPS device was not so exposed.
. . .
As with the mosaic theory, often invoked by the Government in cases involving national security information, what may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene. CIA v. Sims, 471 U.S. 159, 178 (1985) (internal quotation marks deleted); see J. Roderick MacArthur Found. v. F.B.I., 102 F.3d 600, 604 (D.C. Cir. 1996). Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.
Other courts have recognized prolonged surveillance of a person’s movements may reveal an intimate picture of his life. See Galella v. Onassis, 353 F. Supp. 196, 227–28 (S.D.N.Y. 1972) (Plaintiff’s endless snooping constitutes tortious invasion of privacy …. [he] has insinuated himself into the very fabric of Mrs. Onassis’ life.) (aff’d in relevant part 487 F.2d 986, 994 & n.12 (2nd Cir. 1973) (if required to reach privacy issue would be inclined to agree with district court’s treatment)). Indeed, they have reached that conclusion in cases involving prolonged GPS monitoring. See People v. Weaver, 909 N.E. 2d 1194, 1199 (N.Y. 2009) (Prolonged GPS monitoring yields … a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits.); State v. Jackson, 76 P.3d 217, 224 (Wash. 2003) (en banc) (In this age, vehicles are used to take people to a vast number of places that can reveal preferences, alignments, associations, personal ails and foibles. The GPS tracking devices record all of these travels, and thus can provide a detailed picture of one’s life.).
See Orin Kerr in the Volokh Conspiracy and eff.org’s Court Rejects Warrantless GPS Tracking, EFF-ACLU Arguments Against Always-On Surveillance Win The Day.
