Cal.1st: No reasonable expectation of privacy in not being GPS tracked by the phone you stole

Defendant stole a woman’s purse at gunpoint. In her purse was a smart cell phone with GPS. Tracking the GPS to locate the defendant violated no right of his. People v. Barnes, 216 Cal. App. 4th 1508, 157 Cal. Rptr. 3d 853 (1st Dist. 2013).* [Law.com article here from 6/27] This opinion is six times longer than it needed to be because the Jones tracking argument was completely irrelevant:

Although defendant no longer equates police use of GPS technology with a standing violation of the Fourth Amendment, he is still deeply uneasy with what he fears is the onset of an irresistible erosion of personal privacy. Both defendant and the Attorney General have obviously given the matter considerable thought, and the briefs reflect research that has reached into academic journals and unpublished federal decisions.

Because there was no physical trespass or intrusion,fn4 the question becomes how defendant fares under “Katz’s reasonable-expectation-of-privacy test” because “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” (Jones, supra, 565 U.S. ___ [132 S.Ct. 945, 953].) Put more precisely, did defendant have a legitimate expectation of privacy in the cell phone he had stolen. The answer is an emphatic “No.” As stated most baldly by the Ninth Circuit: “The Fourth Amendment does not protect a defendant from a warrantless search of property that he stole, because regardless of whether he expects to maintain privacy in the contents of stolen property, such an expectation of privacy is not one that society is prepared to accept as reasonable.” (United States v. Caymen (9th Cir. 2005) 404 F.3d 1196, 1200.) The principle enjoys wide acceptance. (State v. Jackson (La. 2010) 42 So.3d 368, 372; State v. Soukharith (Neb. 1997) 253 Neb. 310 [570 N.W.2d 344, 356]; United States v. Tropiano (2d Cir. 1995) 50 F.3d 157, 161–162 and decisions cited; United States v. Bailey (6th Cir. 1980) 628 F.2d 938, 944; United States v. Soto (D. Mass. 2011)779 F.Supp.2d 208, 218.)

4. The only trespass here was committed by defendant who committed it when he took Fey’s purse. (See Jones, 565 U.S. ____[132 S.Ct. 945, 962] (conc. opn. of Alito, J.) [“Trespass to chattels has traditionally required a physical touching of the property”].)