FL1: No REP in GPS installed in car def borrowed from a friend

Defendant had taken a car from a friend, and the car had a GPS installed by agreement between the owner and the finance company. The car owner didn’t know whether it had been stolen, and reported it to the police. The police obtained the GPS coordinates of the car without a warrant. Defendant had no reasonable expectation of privacy in the GPS of a car he didn’t own. Bailey v. State, 2020 Fla. App. LEXIS 16295 (Fla. 1st DCA Nov. 16, 2020):

We reject Appellant’s argument that Carpenter and Jones compel suppression here. The holding in Carpenter is explicitly limited to the warrantless collection of CSLI and did not address other business records that might incidentally reveal location information. Appellant argues that the GPS data at issue here is factually analogous to CSLI. We, however, agree with the State that the two types of data are qualitatively different in that the data at issue here is not the type of arbitrary, all-encompassing surveillance at issue in Carpenter.

As explained in Carpenter, the harm inherent in a government’s warrantless gathering of CSLI is primarily borne of the virtual attachment of the device to its owner—allowing for all-encompassing, perpetual tracking which penetrates private spheres—and of the fact that the overwhelming majority of individuals more or less must own a cell phone. 138 S. Ct. at 2218. On these key points, the GPS data at issue is not comparable. The privacy-penetrating capacity of cell phones has been distinguished from cars, which have “little capacity for escaping public scrutiny” as they largely only travel through public thoroughfares. Id. (quoting Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (noting that individuals regularly leave their cars whereas cell phones are compulsively carried at all times)). Because cars do not bear the same attachment to their owners and cannot penetrate private spaces to the same degree, government acquisition of a vehicle’s GPS data does not give rise to the same risk of all-encompassing surveillance as CSLI. An individual often moves about—both publicly and privately—away from their vehicle. Additionally, as an owner’s vehicle is frequently in operation and driven by others, GPS tracking of cars does not provide police the level of personal surveillance contemplated with CSLI. Because cell phones are treated as “almost a ‘feature of human anatomy,'” tracking of a cell phone is tracking of the owner. Id. (quoting Riley v. California, 573 U.S. 373, 385 (2014)).

An individual cannot claim the same figurative attachment to a vehicle, particularly one that they do not actually own. Here, the GPS data tracked the Honda, while other evidence was required to put Appellant in it. Further, the collection of GPS data in this context encompasses only those car owners who have affirmatively consented to collection of tracking information. Adding further consideration of third-party principles, the consent to tracking on the part of the car owner further dilutes the argument that the precedent of Carpenter controls. Although the Court in Carpenter forbid the government from warrantlessly accessing seven days of historical CSLI from a target’s wireless carriers, it refused to address whether one’s “reasonable expectation of privacy in the whole of his physical movements” extends to shorter periods of time or to other location tracking devices. 138 S. Ct. at 2217 n.3, 2219.

Likewise, Jones does not mandate a conclusion in this case that acquisition of the GPS monitoring constitutes a search. The Supreme Court expressly limited the holding of Jones which found only that the installation of the GPS device on the defendant’s car constituted a trespass, and therefore, was a search. The case did not present the issue of “reasonableness” of such a search. Rather, the conclusion in Jones is grounded in the fundamentals of the relevant facts and applicable law.

Instead, we find Knotts controlling. In Knotts, the Supreme Court permitted the use of a beeper to follow a vehicle because “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 460 U.S. at 281. We acknowledge the Court’s statement that the “limited use which the government made of the signals from this particular beeper” during a discrete “automotive journey” and reserved the question of whether “different constitutional principles may be applicable” if “twenty-four hour surveillance of any citizen of this country [were] possible.” Id. at 283-85 (internal quotation marks omitted).

The fact that GPS data is historical in nature does not alone provide Appellant a reasonable expectation of privacy regarding the information. According to Knotts, Appellant had no reasonable expectation of privacy regarding his travels over public thoroughfares. Although technically historical, GPS records of the Honda’s location during the commission of the offense remain simply records of his public travels. The fact remains that Appellant chose to operate a car on public roads—a car owned by another who consented to GPS tracking. The police played no role in the recording of the information and simply availed themselves of the advantages afforded by the electronic recording. Under these circumstances, any expectation of privacy on Appellant’s part was not objectively reasonable.

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