The police obtained a commerically available GPS unit off the internet and attached it to defendant’s car while it was in a public place. It was later retrieved, and its memory downloaded, and it placed defendant near a suspected meth lab on another’s property, and the police got consent to enter from the owner and retrieved the lab. The defendant then showed up at the land while they were searching. The use of the GPS device violated no right of the defendant. United States v. Garcia, 474 F.3d 994 (7th Cir. February 2, 2007):<\/p>\n
The defendant’s contention that by attaching the memory tracking device the police seized his car is untenable. The device did not affect the car’s driving qualities, did not draw power from the car’s engine or battery, did not take up room that might otherwise have been occupied by passengers or packages, did not even alter the car’s appearance, and in short did not “seize” the car in any intelligible sense of the word. But was there a search? The Supreme Court has held that the mere tracking of a vehicle on public streets by means of a similar though less sophisticated device (a beeper) is not a search. United States v. Knotts<\/em>, 460 U.S. 276, 284-85, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983). But the Court left open the question whether installing the device in the vehicle converted the subsequent tracking into a search. Id.<\/em> at 279 n. 2; see also United States v. Karo<\/em>, 468 U.S. 705, 713-14, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984). The courts of appeals have divided over the question. Compare United States v. McIver<\/em>, 186 F.3d 1119, 1127 (9th Cir. 1999), and United States v. Pretzinger<\/em>, 542 F.2d 517, 520 (9th Cir. 1976) (per curiam), holding (and United States v. Mic<\/em>hael, 645 F.2d 252, 256 and n. 11 (5th Cir. 1981) (en banc), and United States v. Bernard<\/em>, 625 F.2d 854, 860-61 (9th Cir. 1980), intimating) that there is no search, with United States v. Bailey<\/em>, 628 F.2d 938, 944-45 (6th Cir. 1980); United States v. Shovea<\/em>, 580 F.2d 1382, 1387-88 (10th Cir. 1978), and United States v. Moore<\/em>, 562 F.2d 106, 110-12 (1st Cir. 1977), holding the contrary. Several of the cases actually take intermediate positions, such as requiring reasonable suspicion rather than probable cause (a possible interpretation of Michael<\/em>), or probable cause but no warrant — Shovea<\/em> and Moore<\/em>. This court has not spoken to the issue.<\/p>\n
If a listening device is attached to a person’s phone, or to the phone line outside the premises on which the phone is located, and phone conversations are recorded, there is a search (and it is irrelevant that there is a trespass in the first case but not the second), and a warrant is required. But if police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite imaging as in Google Earth, there is no search. Well, but the tracking in this case was by satellite. Instead of transmitting images, the satellite transmitted geophysical coordinates. The only difference is that in the imaging case nothing touches the vehicle, while in the case at hand the tracking device does. But it is a distinction without any practical difference.<\/p><\/blockquote>\n
Daytime search that started at 8:58 p.m. when 9:00 p.m. was the latest under state law was valid. The search must start before 9:00 p.m., but it need not be completed by 9:00 p.m. United States v. McCarty, 475 F.3d 39 (1st Cir. February 2, 2007):<\/p>\n
The search continued until 10:35 P.M., but we have held that a search which began during the daytime but which continued through the nighttime is not necessarily unreasonable. Young<\/em>, 877 F.2d at 1104-05; see also State v. Sargent<\/em>, 2005 ME 78, 875 A.2d 125, 127-28 (Me. 2005) (finding no grounds for suppression where a search began before 9:00 P.M. but concluded at 11:00 P.M.). In fact, the search of McCarty’s apartment was significantly less intrusive than the valid search conducted in Young<\/em>, which began in the morning, and continued throughout the night and for two additional days. 877 F.2d at 1104.<\/p><\/blockquote>\n
Comment:<\/em> Since a nighttime search under F.R.Crim.P. 41(a)(2)(B) is 10 p.m. to 6 a.m., reliance on state law is irrelevant. I won a state law nighttime search issue because the search took place at 9 p.m. where state law says 8 p.m., and the feds took it over and the 8th Cir. held that Rule 41 governed because the case was in federal court, notwithstanding that a state judge issued the warrant. United States v. Appelquist, 145 F.3d 976 (8th Cir. 1998).<\/p>\n
Defendant’s live-in girlfriend could consent to the search that located the evidence against defendant because she had apparent authority. United States v. Powell, 215 Fed. Appx. 143 (3d Cir. 2007)* (unpublished).<\/p>\n
Defendant’s contention that he would not consent to a search because he distrusted the police, but claimed no coercion, was belied by his written consent. United States v. Bowman, 216 Fed. Appx. 325 (4th Cir. 2007)* (unpublished).<\/p>\n","protected":false},"excerpt":{"rendered":"
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