CA7: Only 60 hours of GPS surveillance distinguishes Maynard‘s 28 days

Only 60 hours of GPS surveillance was not as intensive as Maynard’s 28 days, so Maynard is distinguished. United States v. Cuevas-Perez, 640 F.3d 272 (7th Cir. 2011):

We are called on to decide whether the factually straightforward case before us implicates the concerns articulated in Maynard, or whether it is subject to the residual principle derived from Knotts and Garcia, that GPS tracking does not constitute a search. We believe that the present case is not like Maynard, and accordingly, we believe that the analysis of that case does not apply here.

The aspects of the search in Maynard that affected the court’s decision are absent here. The 28-day surveillance in Maynard was much lengthier than the 60-hour surveillance in the case before us. Moreover, the Maynard court repeatedly distinguished the surveillance at issue there from surveillance during a single journey. See Maynard, 615 F.3d at 558, 560, 562, 565. For instance, the court stated, “[s]urveillance that reveals only what is already exposed to the public—such as a person’s movements during a single journey—is not a search.” Id. at 565 (citing Knotts, 460 U.S. at 285). The case before us, so far as the record reveals, involves such a “single-trip” duration of surveillance. Unlike in Maynard, the surveillance here was not lengthy and did not expose, or risk exposing, the twists and turns of Cuevas-Perez’s life, including possible criminal activities, for a long period. As the Maynard court noted, the chances that the whole of Cuevas-Perez’s movements for a month would actually be observed is effectively nil—but that is not necessarily true of movements for a much shorter period.

As to the objection that the actual course of the GPS use is not known until long after the need for a warrant might arise, that may be true, but it is beside the point: the need vel non for a warrant depends on the purpose of the GPS use. And the purpose of the GPS attachment would generally be known ex ante, even though the actual facts of its use would only be known ex post. No different from any other case, the police here were obliged to decide ex ante whether their contemplated surveillance activities would require a warrant. Here, the purpose of the GPS was apparently only to record Cuevas-Perez’s trip across the country from Arizona. Therefore, assuming no significant deviation from the indicated purpose, no warrant would be required even if the Maynard analysis were applied. In that regard, it may be that the present state of precedent provides only piecemeal guidance, but this is unexceptional in the case of Fourth Amendment issues, and is only a reason that law enforcement may wish to obtain a warrant in close cases.

Update: Orin Kerr on Volokh Conspiracy.