EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, November 1, 2009

Recalculating, Take 6: Supreme Judicial Court Of Massachusetts Finds Installation Of GPS Device On Suspect's Vehicle Constitutes A Seizure

I have written four previous posts (hereherehere, and hereabout court opinions and articles addressing the issue of whether police should be required to obtain a search warrant before attaching a GPS device to a suspect's vehicle  Those posts analyzed precedent from across the country and concluded that most courts have found that nothing in the federal constitution requires the obtainment of a warrant but that certain protections in state constitutions could require a warrant. The latest court to address this question was the Supreme Judicial Court of Massachusetts in Commonwealth v. Connolly, 913 N.E.2d 356 (Mass. 2009), which found in dicta that a warrant is required.

In Connolly,

[a] Superior Court jury convicted [Everett Connolly] of trafficking in cocaine...and distribution of cocaine....Much of the evidence at trial was obtained as the result of a warrant that was issued to search the defendant's minivan....The affidavit attached to the application for the warrant contained information obtained from informants, from police investigation, and from a global positioning system (GPS) device. The GPS device had been installed in the defendant's minivan pursuant to a warrant previously issued.

Connolly thereafter appealed, claiming, inter alia, that "he should receive a new trial because a warrant is required for the use of a GPS device, and, while a warrant in fact issued in this case, the police obtained data from the GPS device after the warrant had expired, thereafter using that data to obtain the other search warrant as well as to locate his minivan in order to stop and search it."

In resolving this claim, the Supreme Judicial Court of Massachusetts started by noting that the few federal courts that have addressed the claim that the warrantless installation of a GPS violates the Fourth Amendment of the federal constitution have rejected it, relying upon Supreme Court precedent such as United States v. Karo, 468 U.S. 705 (1984), and United States v. Knotts, 460 U.S. 276 (1983). The court then noted that some state courts had found that the warrantless installation of GPS devices was unconstitutional under state constitutional provisions. The court pointed out that most of these courts reached this conclusion by finding that the GPS installation was a search but observed that "[w]hile no State court has explicitly addressed the question whether use of a GPS tracking device constitutes a seizure, the [Supreme Court of Washington in State v.Jackson, 76 P.3d 217 (Wash. 2003] concluded, without further distinguishing the two subjects, that installation and use of a GPS device was both a search and a seizure."

The court then found that the installation of the GPS device in the case before it constituted a "seizure" pursuant to Article XIV of the Massachusetts Declaration of Rights, which provides that

Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws. 

According to the court,

We conclude that a warrant was required here because the initial installation of the particular device clearly constituted a seizure under art. 14. The installation required not only entry by the police into the minivan for one hour, but also operation of the vehicle's electrical system, in order to attach the device to the vehicle's power source and to verify that it was operating properly. Moreover, operation of the device required power from the defendant's vehicle, an ongoing physical intrusion....

In addition, and apart from the installation of the GPS device, the police use of the defendant's minivan to conduct GPS monitoring for their own purposes constituted a seizure....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. The owner of property has a right to exclude it from "all the world,"...and the police use "infringes that exclusionary right."...The interference occurs regardless whether the device draws power from the vehicle and regardless whether the data is transmitted to a monitoring computer. It is a seizure not by virtue of the technology employed, but because the police use private property (the vehicle) to obtain information for their own purposes.

As stated, in gathering and using the GPS data by means of the minivan, the police used the defendant's minivan for government purposes, and did so without the defendant's knowledge or authorization. Tracking of the GPS data by the police constituted use and control of the defendant's minivan by them, and interfered with the defendant's right to exclude others from his vehicle....Although the defendant was not deprived of the ability to drive the minivan, by using the GPS device on the vehicle to track its movements the police asserted control over it, converting the minivan to their own use notwithstanding the defendant's continued possession. The continual monitoring of the GPS data also substantially infringed on another meaningful possessory interest in the minivan: the defendant's use and enjoyment of his vehicle....Accordingly, we conclude that the monitoring and use of data from GPS devices requires a warrant under art. 14.

Based upon this conclusion, the court did not need to address the issue of whether the GPS installation also constituted a search. The court, however, also did not need to address the issue of whether the GPS installation was a seizure. Why? According to the court, "the tracking warrant had not expired when the minivan was seized," meaning that there was no constitutional violation.



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