ID: GPS “search” claim not preserved, and not plain error since law unsettled

Defendant’s claim that GPS tracking was a “search” in violation of the Fourth Amendment was not preserved by his general foundation argument. Under plain error review, the court cannot find that it was fundamental error since the law is in disarray. State v. Danney, 2010 Opinion No. 73, 2010 Ida. App. LEXIS 89 (November 5, 2010)*:

Danney’s claim of fundamental error does not satisfy this test, for the law is not settled on whether use of a GPS device to track a vehicle&s movements constitutes a “search” subject to the strictures of the Fourth Amendment. Neither the United States Supreme Court nor Idaho appellate courts have spoken to this issue, nor have the vast majority of the federal circuit courts. See People v. Weaver, 909 N.E.2d 1195, 1202 (N.Y. 2009) (noting that both the United States Supreme Court and most federal circuit courts had not yet ruled on the issue). To the extent that it has been addressed, the jurisprudence in this area is conflicting. The United States Supreme Court’s decision that is closest on point is United States v. Knotts, 460 U.S. 276 (1983), where the Court examined the constitutionality of the warrantless use of a “beeper” device planted on a vehicle and used to track the progress of the vehicle by officers following the beeper’s signals. The Court concluded that law enforcement officers did not conduct a “search” cognizable under the Fourth Amendment by using the beeper to track a vehicle because “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281. This was so, the Court said, because the particular route taken, stops made, and ultimate destination are apparent to any member of the public who happens to observe the vehicle’s movements, and “[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” Id. at 282. At least two federal circuit courts have held that the Knotts analysis applies equally to the more technologically advanced GPS devices now used by law enforcement, concluding that the warrantless placement of a GPS tracking device on a vehicle does not implicate the Fourth Amendment. United States v. Pineda-Moreno, 591 F.3d 1212, 1216 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007). See also Osburn v. State, 44 P.3d 523, 525-26 (Nev. 2002) (holding that the police use of an electronic mobile tracking device does not infringe a reasonable expectation of privacy). Of course, if Knotts, Pineda-Moreno, and Garcia control on this issue, then Danney has not only failed to show fundamental error, he has failed to show any error at all, for the officers’ employment of a GPS device to track Danney’s vehicle would not be deemed violative of the Fourth Amendment.

Danney points, however, to decisions of several state supreme courts that have held the use of a GPS tracking device without a warrant was impermissible under their respective state constitutions. See Commonwealth v. Connolly, 913 N.E.2d 356, 369 (Mass. 2009); Weaver, 909 N.E.2d at 1202; State v. Campbell, 759 P.2d 1040, 1041 (Or. 1988). Danney urges that we adopt the analysis of the Weaver court which, although deciding the issue according to state law, also strongly suggested that Knotts should be inapplicable to GPS technology. The Weaver court observed that while “[a]t first blush it would appear that Knotts does not bode well for Mr. Weaver, for in his case, as in Knotts, the surveillance technology was utilized for the purpose of tracking the progress of a vehicle over what may be safely supposed to have been predominately public roads and, as in Knotts, these movements were at least in theory exposed to anyone who wanted to look,” this was where the similarity ended. Weaver, 909 N.E.2d at 1198-99 (quoting Knotts, 460 U.S. at 281). The court focused on the disparity in the technology, noting that the device used in Knotts was a “very primitive tracking device” which was “fairly described … as having functioned merely as an enhancing adjunct to the surveilling officers’ senses …,” while “GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability.” Weaver, 909 N.E.2d at 1199. …

While the Weaver opinion presents an analysis by which the Knotts decision could be deemed inapplicable to the use of GPS tracking devices, it hardly demonstrates that there is settled law holding the warrantless use of such devices to constitute a search governed by Fourth Amendment standards. It is evident that the constitutionality of warrantless use of GPS technology to track vehicle movements is not “obvious” such that the admission of this evidence was plainly error. Accordingly, this issue is not one of fundamental error under the Perry standard that we can consider for the first time on appeal, and for that reason we do not reach the merits.