MA: Passenger in car can challenge GPS, too

Data from GPS devices do not fall within the language of the Massachusetts wiretap statute. Here, there was probable cause for installation of a court ordered GPS tracking device in the investigation of serial arsons. The Massachusetts court also determined that the passenger had standing to challenge the use of GPS too because his movements were also logged because he was in the car. Commonwealth v. Rousseau, 465 Mass. 372, 990 N.E.2d 543 (2013):

With these [opinions from Jones, majority and concurring] in mind, we now proceed to determine whether Dreslinski and Rousseau have standing to challenge the GPS warrant. As to Dreslinski, whether we characterize the government’s intrusion as a “seizure” under Connolly or a “search” under Jones, by attaching a GPS device to his vehicle and tracking its movements, the government invaded Dreslinski’s property and “controll[ed] and use[d]” it for its own purposes. Connolly, supra at 823. See Jones, supra at 949, 950 n.3. Consequently, he has standing under both the Fourth Amendment and art. 14 to challenge the GPS warrant.

The harder question, not directly considered in Connolly or Jones, is whether Rousseau has standing to make a similar challenge given that he was a “mere passenger” having no possessory interest in Dreslinski’s pickup truck. With respect to Rousseau, the government’s actions are neither a “seizure” of his property under art. 14, because the police did not “control and use” Rousseau’s vehicle, Connolly, supra at 823, nor a search of an “effect” in which he had a property interest protected by the Fourth Amendment. Jones, supra at 949.

Thus, we must decide whether our property-based analysis in Connolly represents the outer limits of the protections afforded by art. 14 or whether, even in the absence of a property interest, the government’s contemporaneous electronic monitoring of one’s comings and goings in public places invades one’s reasonable expectation of privacy. We conclude that under art. 14, a person may reasonably expect not to be subjected to extended GPS electronic surveillance by the government, targeted at his movements, without judicial oversight and a showing of probable cause. See Jones, supra at 954-955 (Sotomayor, J., concurring). See, e.g., People v. Weaver, 12 N.Y.3d 433, 444-447, 909 N.E.2d 1195, 882 N.Y.S.2d 357 (2009) (defendant had reasonable expectation of privacy in location of vehicle and placing GPS device on vehicle constituted search under art. I, § 12, of Constitution of State of New York). Although we need not decide how broadly such an expectation might reach and to what extent it may be protected, the fact that police monitored Rousseau over a thirty-day period is sufficient to establish that he had standing to challenge the validity of the warrant.

Back to blog