Defendant bought a used car that the dealer had GPS installed in if necessary to recover it. The police accessed that information without a warrant to connect him to a murder. The contract for the vehicle told defendant about the GPS and that it was the property of the dealership until the car was paid off. It thus was third party information. Moreover, it was not as detailed and intrusive as CSLI in Carpenter. People leave their cars, but cell phones go everywhere. Wharton v. State, 2024 Tex. App. LEXIS 8188 (Tex. App. – Houston (1st Dist.) Nov. 26, 2024):
One Florida court has held that, under similar circumstances, GPS data like that at issue here is not comparable to CSLI because, unlike “[t]he privacy-penetrating capacity of cell phones,” cars have “‘little capacity for escaping public scrutiny’ as they largely only travel through public thoroughfares.” See Bailey v. State, 311 So.3d 303, 314 (Fl. Dist. Ct. App. 2020) (citing Carpenter, 585 U.S. at 311). And, as acknowledged in Carpenter, “individuals regularly leave their vehicles.” 585 U.S. at 311.
Moreover, a vehicle is frequently operated and driven by others, as Wharton’s was here,23Link to the text of the note and thus must be distinguished from a cell phone which is treated as “almost a ‘feature of human anatomy.'” Bailey, 311 So.3d at 314 (citing Carpenter, 585 U.S. at 311). “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.” Id.
Critically, allowing the collection of GPS data without a warrant in this context would be limited to only those car owners who have affirmatively consented to the collection and sharing of such tracking information. This is in stark contrast to the collection of CSLI, which “is not truly ‘shared’ as one normally understands the term.” Carpenter, 585 U.S. at 315. Rather, CSLI is generated by virtually any activity on the cell phone and “without any affirmative act on the part of the user beyond powering up.” Id.
Furthermore, because CSLI “is continually logged for all of the 400 million devices in the United States—not just belonging to persons who might happen to come under investigation—this newfound tracking capacity runs against everyone.” Id. at 312. As the Court explained:
Whoever the suspect turns out to be, he has effectively been tailed every moment of every day of five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment. Only the few without cell phones could escape this tireless and absolute surveillance.
Id. (emphasis added). The same cannot be said of GPS tracking devices installed on vehicles with the consent of their owners.
Lastly, we agree with our sister court in Fort Worth that, at the most basic level, there remains a fundamental difference between CSLI from a cell phone and information obtained from a vehicle GPS-tracking device. See LopezGamez v. State, 622 S.W.3d 445, 455 (Tex. App.—Fort Worth 2020, pet. ref’d). Although the primary purpose of a cell phone is to communicate, cell phone technology also allows for the tracking of the user’s location and movements. Id. In contrast, “the essential purpose of a GPS device is to track a person’s movements. When a person permits a GPS device to be installed on a vehicle, that person has an affirmative expectation that his or her movements and locations will be tracked.” Id. In light of this fundamental difference, the Fort Worth Court of Appeals declined to extend Carpenter and Jones to the retrieval of real-time GPS location information—particularly where the appellant had agreed, as a condition of the purchase of his vehicle, to allow the dealership access to the vehicle’s location via a real-time GPS tracking device. Id. at 454-55.
With these principals in mind, we note that the holding in Carpenter is decidedly narrow and limited to the warrantless collection of CSLI. The Court in Carpenter explicitly stated that it was not addressing other business records that might incidentally reveal location information. Although Wharton urges this Court to follow the Northern District of Illinois decision in Diggs in extending Carpenter and Jones beyond CSLI to historical GPS data, we decline to do so. Instead, for all the reasons detailed above, we conclude that the GPS data here is qualitatively different than the “tireless and absolute surveillance” afforded through collection of CSLI. See Carpenter, 585 U.S. at 312. And we therefore reject Wharton’s argument that Carpenter and Jones compel suppression here.
