DE: Exclusionary rule not designed to prohibit extra-territorial GPS tracking with warrant

In this post-conviction case, defense counsel didn’t raise the question of extraterritorial monitoring of a warrant installed GPS device. It was installed in 2015 [post-Jones] to track defendant who was an accomplished [except for getting caught] burglar. The court doesn’t find prejudice because it’s doubtful that the state supreme court, which has never decided this issue, and neither has SCOTUS, would find in his favor. This is akin to the warrant execution issue not being a Fourth Amendment issue. The exclusionary rule would not be served by applying it here where there was already a warrant issued on probable cause and otherwise lawful execution of the tracking warrant. It also is a novel enough issue that defense counsel wasn’t ineffective for not raising it. State v. Lewis, 2021 Del. Super. LEXIS 238 (Mar. 23, 2021):

Lewis’ second problem here is proving prejudice. To show defendant was prejudiced, Lewis must show a likelihood that as a result of counsel’s dereliction, defendant was deprived of a fair trial. This requires a showing that the defendant has suffered a harm that undermined confidence in the outcome. Here, the argument is that the evidence derived from the collection of extra-territorial data from the GPS tracker prejudiced him. The argument presumes that the collection of such extra-territorial data was a harm that should have been suppressed at trial. The Court disagrees.

The remedy of suppression of evidence is reserved for that class of seizures that violate a constitutional guarantee. Although suppression is necessary to vindicate constitutional rights, it is also admittedly in derogation of the trial’s function as a “search for the truth.” The point is that before we conclude that the capture of extra-territorial GPS data is subject to suppression, we must first identify what constitutional harm is committed by the acquisition of extra-territorial GPS data.

In U.S. v. Jones, law enforcement placed a GPS tracker on the defendant’s car without a judicially authorized warrant. The U.S. Supreme Court ruled that the attachment of GPS tracking devices on an individual’s vehicle constitutes a search or seizure within the meaning of the Fourth Amendment and may only be sanctioned if authorized by a warrant. The theoretical underpinnings of the Jones opinion are worth considering.

According to Justice Scalia, the attachment of the GPS device was a common law trespass on the personal property of the defendant and this brought it within the ambit of the Fourth Amendment. For Justice Sotomayor in her concurrence, the critical inquiry was the defendant’s reasonable expectation of privacy and not simply whether authorities had trespassed on defendant’s property. Because citizens may reasonably expect that tracking devices will not be placed on their cars, Jones had a reasonable expectation of privacy that the Fourth Amendment must protect.

The different approaches to the Fourth Amendment question raised in Jones demonstrate that the critical event for Fourth Amendment purposes was not the data produced by the GPS unit, but rather the attachment of the GPS device on the suspect’s vehicle. The Court did not question or suggest that the data produced by the GPS device was subject to some second or different Fourth Amendment analysis. The point of intrusion on the vehicle was the event requiring a probable cause finding. The Court scarcely mentioned the data pushed out by the GPS unit or what jurisdiction the vehicle was in when it did so. It would seem, therefore, that the constitutional “harm,” sought to be prevented by the warrant requirement is the placement of the tracker, not the data emitted as a result thereof from wherever it is generated. Neither Jones nor the Fourth Amendment support the proposition that data produced in a different jurisdiction is somehow off-limits to law enforcement when it is received pursuant to a lawfully issued warrant.

We might also consider the Supreme Court’s jurisprudence with respect to the knock-and-announce rule. In Hudson v. Michigan the U.S. Supreme Court held that while the rule that police must knock and announce before forcing entry with a warrant is a constitutional principle, a violation of the rule does not require suppression of all evidence found in the subsequent search. The court found that the interests protected by the knock-and-announce rule do not include one’s interest in preventing the government from seeing or taking evidence described in a warrant, finally ruling that suppression of all evidence found in the search was not required.

Similarly here, the interests sought to be protected by requiring a warrant before placing a GPS tracker are the privacy (or property) interests of the suspect. Suppression of evidence seized without a warrant for a GPS tracker is the tool used to enforce those interests. The defendant has not articulated any specific right beyond that privacy interest that might be protected by suppressing data generated by the GPS tracker when the tracker leaves the jurisdiction. Thus, suppression of out of state GPS data “would not serve the purpose of the rule” requiring a warrant for the placement of a GPS tracker.