The Supreme Court of Massachusetts ruled this month in Commonwealth v. Connolly that a police officer must first obtain a warrant before placing a GPS tracking device on a car, because doing so constitutes a seizure under the Massachusetts Constitution.
When an electronic surveillance device is installed in a motor vehicle, be it a beeper, radio transmitter, or GPS device, the government's control and use of the defendant's vehicle to track its movements interferes with the defendant's interest in the vehicle notwithstanding that he maintains possession of it.
Right now, the government needs probable cause and a warrant to search a home or to seize personal property, but no search warrant is needed if the police have lawful access to the property or vehicle...
Found on the EPIC site: the New York Court of Appeals ruled that the police must first obtain a warrant before installing a GPS tracking device on an individual vehicle, but the Wisconsin Appeals Court authorized warrantless GPS surveillance by police.
According to the Wisconsin Court, The State aptly relies on United States v. Garcia, 474 F.3d 994 (7th Cir. 2007). The Garcia court concluded that attaching a GPS device to a car while the car was in a public place did not convert the subsequent tracking into a Fourth Amendment search.
The court reasoned:
[I]f 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.
Like the Seventh Circuit, we discern no privacy interest protected by the Fourth Amendment that is invaded when police attach a GPS device to the outside of a vehicle, as long as the information obtained is the same as could be gained by the use of other techniques that do not require a warrant.
Sveum [defendant] might respond that, unlike Garcia, the police here did not attach the GPS device while his car was parked in a public place. However, the circuit court concluded that Sveum’s driveway was not constitutionally protected “curtilage,” and Sveum does not challenge this ruling or otherwise present a developed argument as to why the police engaged in a search or seizure by entering his driveway.
So the issue is still about the location of the vehicule at the time the beeper is attached: curtilage, or not curtilage? Do we have an expectation of privacy?
In the United States v. Knotts case, government agents had planted a “beeper” inside a five-gallon drum, which then allowed the agents to track the vehicle transporting that drum and determine that it had entered the defendant’s premises. The Court held that this did not invade any legitimate expectation of privacy and thus did not constitute a search or seizure under the Fourth Amendment: A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. According to SCOTUS, our expectation of privacy is 'diminished' while being in a car: a car travels in plain view, on public roads.
It is only if the police enters a private dwelling such as a garage that a warrant is required. However, there is no need for warrant if the police already determined that the container contains contraband, because one has no expectation of privacy in contraband. Or if the device is placed into the container before the suspect buys it, no warrant is required because one has no expectation of privacy in a container before it is bought.
In United States v. Karo, 468 U.S. 1250 (1984), the facts were different than in the Knotts case. The container of ether, bought by the defendant to produce illegal drugs, had entered the home of the defendant at one point, and did not stay in the car all the time as in Knotts. The beeper had given the agents information about the suspect’s home, the beeper was monitored while it was inside a home, and therefore it is a search, and one needs a warrant, because the government had used the beeper to obtain 'information that it could not have obtained by observation from outside the curtilage of the house."
These cases should be monitored by everybody concerned about their locational privacy, and not only drug dealers. As the 7th Circuit pointed out in the Garcia case:
Technological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive. Whether and what kind of restrictions should, in the name of the Constitution, be placed on such surveillance when used in routine criminal enforcement are momentous issues that fortunately we need not try to resolve in this case.
Either using the notion of curtilage to define our expectation of privacy needs to be updated, or its definition must be expanded. We no longer live enclosed in the privacy of our homes, leaving our living room at 7.00 am only to go the the adjacent garage, go to our car, and leave for our enclosed office. My laptop, my cell phone, are part of my "curtilage" as I travel carrying them. Yet, they can now be so easily used as tracking devices.
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