Tied up in knotts? GPS technology and the fourth amendment

UCLA Law Review

Volumn 55, Issue 2, 2007, Pages 409-465

  Hutchins, Renée McDonald ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 38949125488     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (379)

1. Admittedly, the U.S. Supreme Court has determined that "when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities." United States v. Jacobsen, 466 U.S. 109, 117 (1984). There is much that is objectionable about the Court's use of the assumption of risk doctrine in defining the scope of Fourth Amendment protection. See, e.g., Smith v. Maryland, 442 U.S. 735, 750 (1979) (Marshall, J., dissenting) (observing that "to make risk analysis dispositive in assessing the reasonableness of privacy expectations would allow the government to define the scope of Fourth Amendment protections"). However, in this Article, I do not make the case for rejecting that doctrine. Rather, this Article assumes for the sake of discussion that disclosure of discrete units of information to particular private sources may somewhat undercut a privacy claim with regard to the disclosed units. I nonetheless maintain that the aggregation of such information by a single government source triggers Fourth Amendment concerns. For a fuller discussion,
2. see infra note 244 and accompanying text.
3. U.S. CONST. amend. IV.
4. Noted scholars have suggested that protection against invasive technologies should be provided primarily by legislative enactment and not by the Fourth Amendment. See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 MICH. L. REV. 801, 806 (2004). However, at least with regard to Global Positioning System (GPS) tracking, resort to legislative protections is, at this point, more aspiration than reality. As an initial matter, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 governs the use of electronic monitoring devices.
5. See 18 U.S.C. §§ 2510-2513, 2515-2522 (2000 & Supp. IV 2004). It regulates private as well as government conduct. Id. § 2511. However, Title III does not apply to electronic transmitting devices that trace locations. Id. § 2510(12)(C). Only the Fourth Amendment regulates the use of this technology.
6. See United States v. Gbemisola, 225 F.3d 753, 758-59 (D.C. Cir. 2000). Moreover, even if the provisions were interpreted to cover GPS tracking, Title I of the Electronic Communications Privacy Act of 1986, the successor to Title III, regulates the use of electronic surveillance for purposes of domestic law enforcement. See Pub. L. No. 99-508, §§ 101-111, 100 Stat. 1848 (amending scattered sections of 18 U.S.C.). The Act, in turn, looks to the Foreign Intelligence Surveillance Act (FISA) to define electronic surveillance.
7. See 18 U.S.C. § 2511(2)(a)(ii). FISA limits the definition of electronic surveillance to "the installation or use of an electronic, mechanical, or other surveillance device . . . under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes." 50 U.S.C. § 1801(f)(4) (2000). Thus, until courts determine that law enforcement's use of GPS technology triggers the protections of the Fourth Amendment, the protections afforded by Title I would arguably remain inapplicable.
8. See also 18 U.S.C. § 3117 (2000).
9. See, e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 759 (1994) ("Fourth Amendment case law is a sinking ocean liner - rudderless and badly off course - yet most scholarship contents itself with rearranging the deck chairs.");
10. Stephen A. Saltzburg, The Fourth Amendment: Internal Revenue Code or Body of Principles?, 74 GEO. WASH. L. REV. 956, 1018 (2006) ("Fourth Amendment law resembles the Internal Revenue Code in its complexity. It need not. A principled approach to the Fourth Amendment remains an option.").
11. See infra Part 1 for a full discussion of the functioning of GPS as a system that can be used for enhanced surveillance.
12. See, e.g., NAT'L WORKRIGHTS INST., ON YOUR TRACKS: GPS TRACKING IN THE WORKPLACE 6 (2004), http://www.workrights.org/issue_electronic/ NWI_GPS_Report.pdf.
13. State v. Jackson, 76 P.3d 217, 220-21 (Wash. 2003) (reflecting that a GPS device secretly and continuously monitored the location of the suspect's truck from October 26, 1999, until November 13, 1999).
14. See, e.g., id. at 221, 223-24. The technological precursor to GPS, the beeper, is a battery-operated device that emits a weak radio signal that can be followed using a receiver. Beepers do not provide pinpointed targeting of suspects and do not permit the remote tracking of targets.
15. See Kyllo v. United States, 533 U.S. 27, 33-34 (2001);
16. United States v. Knotts, 460 U.S. 276, 283-84 (1983).
17. See, e.g., DEF. SCI. BD. TASK FORCE, DEP'T OF DEF., THE FUTURE OF THE GLOBAL POSITIONING SYSTEM 4, 25-26 (2005), http://www.acq.osd.mil/dsb/reports/2005-10-GPS_Report_Final.pdf.
18. NAT'L WORKRIGHTS INST., supra note 6, at 5.
19. Id. at 6.
20. See Alan Zeichick, GPS Explained: How the Global Positioning System Lets You Know Where You Stand, RED HERRING, Jan. 30, 2001, at 80, available at http://www.redherring.com/Article.aspx?a=790# (article may be accessed through a free subscription). Alan Zeichick is a technology analyst at Camden Associates and is the editor-in-chief of BZ Media's SD Times.
21. Id.
22. Id.
23. SCOTT PACE ET AL, RAND CORP., THE GLOBAL POSITIONING SYSTEM: ASSESSING NATIONAL POLICIES, app. B at 243-46 (1995), available at http://www.rand.org/pubs/monograph_reports/MR614.
24. Apart from the now defunct Block I satellites, there are five generations of satellites currently in existence (though not all in orbit). They are the Block II and Block IIA, which were manufactured by Rockwell International; the Block IIR and Block IIR-M, which were manufactured by Lockheed-Martin; and the Block IIF, which were manufactured by Boeing. In early 2005, the GPS constellation consisted of one Block II satellite, fifteen Block IIA satellites, and twelve Block IIR satellites. In December 2005, a Block IIR-M was added to the group. DEF. SCI. BD. TASK FORCE, supra note 10, at 44-45.
25. Id. at 9.
26. See U.S. DEP'T OF DEF. ET AL., 2005 FEDERAL RADIONAVIGATION PLAN 2-2 to 2-3 (2005), http://www.navcen.uscg.gov/pubs/frp2005/2005%20FRP%20WEB.pdf.
27. Id.
28. Id.
29. See Statement by the President Regarding the United States' Decision to Stop Degrading Global Positioning System Accuracy, 1 PUB. PAPERS 803 (May 1, 2000).
30. Id.
31. Id.
32. Though the government in 2000 did away with the intentional random errors that were introduced into the civilian transmission, in the event of a national emergency, it reserves the right to selectively deny civilian access to the GPS signals being sent. Id.
33. See Zeichick, supra note 13.
34. DEF. SCI. BD. TASK FORCE, supra note 10, at 27; see also Zeichick, supra note 13.
35. Zeichick, supra note 13.
36. Id.
37. Id.
38. DEF. SCI. BD. TASK FORCE, supra note 10, at 28.
39. Id.
40. Because New York City blocks tend to be longer from east to west than from north to south, the five-block area surrounding Grand Central Station would look more like an oval than a circle. But, for the sake of simplicity, I have described the bounded areas as circles.
41. Richard B. Langley, In Simple Terms, How Does GPS Work? (Jan. 6, 2006), http://gge.unb.ca/Resources/HowDoesGPSWork.html.
42. See Zeichick, supra note 13.
43. PACE ET AL., supra note 16, app. A at 220.
44. This increased accuracy is due to the augmentation of GPS with NDGPS, the Nationwide Differential GPS, and WAAS, the Wide-Area Augmentation System. DEF. SCI. BD. TASK FORCE, supra note 10, at 10, 40.
45. PACE ET AL., supra note 16, app. A at 227;
46. see also DEF. SCI. BD. TASK FORCE, supra note 10, at 89 (noting that accuracies of "better than [ten] centimeters" have been achieved in civil applications).
47. PACE ET AL., supra note 16, app. A at 227.
48. Id.
49. Id.
50. Langley, supra note 34.
51. See id.
52. Id.
53. See State v. Jackson, 76 P.3d 217, 221 (Wash. 2003) (stating that the discovery of a missing nine-year-old victim's body was made possible by detailed information provided by a GPS tracking device, which included identification of locations visited by the suspect's truck and an exact indication of the time the truck spent motionless at each location).
54. See id.
55. Richard Winton, LAPD Pursues High-Tech End to High-Speed Chases, L.A. TIMES, Feb. 3, 2006, at B1;
56. LAPD to Chase GPS Darts, TECHTREE, Feb. 4, 2006, http://www.techtree.com/techtree/jsp/article.jsp?article_id=71159&cat_id= 549.
57. Winton, supra note 47, at B1;
58. see also Posting of David Pescovitz to BoingBoing, http://www.boingboing.net/2006/02/03/gpsenabled_dart.html (Feb. 3, 2006, 04:27:21 PM) (describing GPS-enabled dart); StarChase, http://www.starchase.org (last visited Jan. 30, 2007) (official website of the only current commercial provider of GPS-enabled dart technology).
59. Brandon Bain, Workers Object to Babylon's Tracking System, NEWSDAY, Mar. 13, 2006, at A6.
60. Id.
61. See James C. White, People, Not Places: A Policy Framework for Analyzing Location Privacy Issues 1 (Spring 2003) (unpublished masters memo, Duke University), available at http://www.epic.org/privacy/location/ jwhitelocationprivacy.pdf;
62. see also NAT'L WORKRIGHTS INST., supra note 6, at 5.
63. Dan Farmer & Charles C. Mann, Surveillance Nation, TECH. REV., Apr. 2003, at 34, 38.
64. Compact GPS Tracks Footsteps Around the World, GPS WORLD, Jan. 2006, at 64, 64, available at http://www.gpsworld.com/gpsworld/article/ articleDetail.jsp?id=267159&searchString= %22Compact%20GPS%20Tracks%20Footsteps%20around%20the%20World;
65. see also Press Release, Digital Angel Corp., Digital Angel Miniaturizes GPS Transmitting Technology: Matchbook-Size Device Opens Way to Monitor People, Animals and Objects Anywhere (July 15, 2006), available at http://www.digitalangelcorp.com/about_pressreleases.asp?RELEASE_ID=64.
66. Compact GPS Tracks Footsteps Around the World, supra note 53, at 64.
67. GPS Goes One Up, GPS WORLD, Feb. 2006, at 18, available at http://www.gpsworld.com/gpsworld/article/articleDetail.jsp? id=302702&searchString=%22GPS%20goes%20one%20up%22.
68. Id.
69. DEF. SCI. BD. TASK FORCE, supra note 10, at 45-46.
70. Id.
71. Id. at 60.
72. Id. In addition to the improvements in the American system, both the Europeans and the Russians are launching their own satellite networks. See Galileo Gets Up - Sat Launched, Signal Received, Contract Signed, GPS WORLD, Feb. 2006, at 15, 18, available at http://www.gpsworld. com/gpsworld/article/articleDetail.jsp?id=300336&searchString= %22Galileo%20gets%20up%22. In December 2005, the European Union launched GIOVE-A, the first satellite in its Galileo project. Id. at 15. Ultimately, a full constellation of thirty satellites will comprise the Galileo system. Id. at 17.
73. Temex Times Galileo, GPS WORLD, Feb. 2006, at 58, available at http://www.gpsworld.com/gpsworld/article/articleDetail.jsp? id=300299.
74. Id.
75. Farmer & Mann, supra note 52, at 38; see also White, supra note 51, at 12.
76. Kyllo v. United States, 533 U.S. 27, 36 (2001).
77. See Simon Romero, Location Devices' Use Rises Prompting Privacy Concerns, N.Y. TIMES, Mar. 4, 2001, § 1, at 1.
78. 533 U.S. 27.
79. Id. at 36.
80. U.S. CONST. amend. IV.
81. Johnson v. United States, 333 U.S. 10, 13-14 (1948).
82. Id. at 14-15.
83. WILLIAM W. GREENHALGH, THE FOURTH AMENDMENT HANDBOOK: A CHRONOLOGICAL SURVEY OF SUPREME COURT DECISIONS 1 (2d ed. 2003).
84. Id. at 2.
85. The Fourth Amendment prohibits both searches and seizures. Horton v. California, 496 U.S. 128, 133 (1990) ("A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property.") In the case of GPS-enhanced tracking, the installation of a device would presumably be evaluated under the seizure provisions of the amendment, while the monitoring of any such device would be evaluated under the search terms. See United States v. Karo, 468 U.S. 705, 712-13 (1984) (distinguishing between the constitutional issues raised by the installation and the monitoring of a tracking device). In this Article, I limit my analysis to the search prong of the Fourth Amendment. There is of course an equally interesting line of analysis raised by the question of whether installation of such a device constitutes a seizure. However, the Court has, to this point, left open the question of whether installation triggers constitutional concerns. See United States v. Knotts, 460 U.S. 276, 279 n.** (1983);
86. see also United States v. Garcia, No. 05-CR-155-C, 2006 WL 298704, at *8 (W.D. Wis. Feb. 3, 2006) (finding that installation of a GPS-monitoring device required at least a reasonable suspicion of criminal activity). For now, I defer consideration of that issue.
87. BRADFORD P. WILSON, ENFORCING THE FOURTH AMENDMENT: A JURISPRUDENTIAL HISTORY 4 (1986);
88. see also Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring) (observing that "[t]he course of true law pertaining to searches and seizures . . . has not -to put it mildly - run smooth"); Irvine v. California, 347 U.S. 128, 134 (1954) (describing the Court's Fourth Amendment case law as "inconstant and inconsistent").
89. In 1998, Justice Scalia, writing in concurrence, described the two-pronged Katz test as a "fuzzy" standard poorly suited for the threshold question of application. Minnesota v. Carter, 525 U.S. 83, 91-92 (1998) (Scalia, J., concurring);
90. see also id. at 97 (criticizing the Katz test as "notoriously unhelpful" and "self-indulgent"). However, just three years later, Justice Scalia, writing for the majority in Kyllo v. United States, lauded that same test as a readily workable touchstone, which he used to determine whether a search of the interior of a home had occurred. 533 U.S. 27, 32-34 (2001).
91. I use the terms "sense-enhancing aids" and "enhanced surveillance" to include not only technological enhancements like spike mikes and thermal imagers, but also drug-sniffing dogs. Indeed, in United States v. Jacobsen, 466 U.S. 109 (1984), Justice Brennan warned of the ready progression from canine-assisted to technology-assisted methods of surveillance. Id. at 137-38 (Brennan, J., dissenting) (warning that adherence to the conclusion that dog sniffs are not searches "may very well have paved the way for technology to override the limits of law in the area of criminal investigation").
92. 389 U.S. 347 (1967).
93. 277 U.S. 438 (1928), overruled by Katz, 389 U.S. 347, and Berger v. New York, 388 U.S. 41 (1967).
94. Roy Olmstead was suspected by the government of running a major liquor smuggling ring. The venture employed more than fifty people and grossed in the neighborhood of $2 million annually. Id. at 455-56.
95. Id. at 456-57.
96. The Olmstead Court surveyed its decisions in seven prior cases and found that, in each, it had maintained or expanded the application of the Fourth Amendment's protections. Id. at 458-62 (discussing Boyd v. United States, 116 U.S. 616 (1886);
97. Weeks v. United States, 232 U.S. 383 (1914);
98. Ex parte Jackson, 96 U.S. 727, 733 (1877);
99. Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920);
100. Amos v. United States, 255 U.S. 313 (1921);
101. Gouled v. United States, 255 U.S. 298 (1921);
102. Agnello v. United States, 269 U.S. 20 (1925)). However, signaling its reluctance to find a constitutional violation in the case before it, the Olmstead Court further noted that in Gouled v. United States, one of the later cases in the series of seven, it had "carried the inhibition against unreasonable searches and seizures to the extreme limit." Id. at 463.
103. In a prescient dissent, Justice Brandeis observed that "[c]lauses guaranteeing to the individual protection against specific abuses of power, must have a . . . capacity of adaptation to a changing world." Id. at 472 (Brandeis, J., dissenting). Criticizing the majority for its overly technical reading of the amendment, Justice Brandeis noted: "[I]n the application of a Constitution, our contemplation cannot be only of what has been, but of what may be." The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Id. at 474 (quoting Weems v. United States, 217 U.S. 349, 373 (1910)).
104. Id. at 464-66.
105. 316 U.S. 129 (1942).
106. Id. at 131.
107. Id. at 131-32.
108. Id. at 132.
109. Id. at 135-36. In language reminiscent of Justice Brandeis's dissent in Olmstead, Justice Murphy, writing in dissent, cautioned that the Goldman majority's interpretation of the Fourth Amendment was insufficiently mindful of potential technological advance: [T]he search of one's home or office no longer requires physical entry, for science has brought forth far more effective devices for the invasion of a person's privacy than the direct and obvious methods of oppression which were detested by our forebears and which inspired the Fourth Amendment. Surely the spirit motivating the framers of that Amendment would abhor these new devices no less. . . . Such invasions of privacy, unless they are authorized by a warrant . . . or otherwise conducted under adequate safeguards defined by statute, are at one with the evils which have heretofore been held to be within the Fourth Amendment and equally call for remedial action. Id. at 139-40 (Murphy, J., dissenting) (footnote omitted).
110. Id. at 135.
111. See Clinton v. Virginia, 377 U.S. 158, 158 (1964) (Clark, J., concurring) (finding that the physical intrusion made by a small listening device that the police had inserted into a party wall was sufficient to constitute "actual trespass" and thereby violate the Fourth Amendment);
112. Lopez v. United States, 373 U.S. 427, 430-31, 439-40 (1963) (relying upon the lack of any "unlawful physical invasion of petitioner's premises" to find that the petitioner's Fourth Amendment rights were not violated when an individual who the petitioner knew to be an IRS agent secretly recorded conversations the two had in the petitioner's office);
113. Silverman v. United States, 365 U.S. 505, 511-12 (1961) (finding that the police use of a "spike mike," which made contact with a heating duct in the defendant's home, was a sufficient trespass to trigger Fourth Amendment protection);
114. Irvine v. California, 347 U.S. 128, 132, 136-38 (1954) (finding that the police "flagrantly, deliberately, and persistently violated the fundamental principle declared by the Fourth Amendment" when they repeatedly entered defendant's home surreptitiously to install a listening and recording device, but affirming conviction after refusing to impose the federal sanction of evidentiary exclusion on the states);
115. On Lee v. United States, 343 U.S. 747, 751-54 (1952) (finding no violation of the Fourth Amendment because, inter alia, petitioner could not establish trespass by the wired undercover agent, who was present on the property with petitioner's consent);
116. cf. Berger v. New York, 388 U.S. 41, 44 (1967) (finding that New York's eavesdropping statute violated the Fourth Amendment because, inter alia, it authorized "trespassory intrusion into a constitutionally protected area");
117. Osborn v. United States, 385 U.S. 323, 327 (1966) (distinguishing Silverman, but citing Lopez with approval); Lanza v. New York, 370 U.S. 139, 142-47 (1962) (citing with approval Silverman's trespass-based notion of searches, but declining, in dicta, to extend the constitutional protections recognized there to electronic eavesdropping conducted in the visitors' room of a public jail).
118. 389 U.S. 347 (1967).
119. Id. at 354 n.14.
120. Id. at 348, 354 n.14.
121. Id. at 348-49.
122. Id. at 353. Justice Brennan suggested in his dissent in Lopezthat the Court actually rejected a link between trespass and Fourth Amendment protection long before the Katzdecision in 1967. 373 U.S. at 460-61 (Brennan, J., dissenting). Citing Silverman, 365 U.S. at 505, Justice Brennan stated "the Court . . . has expressly held . . . that an actual trespass need not be shown in order to support a violation of the Fourth Amendment." Lopez, 373 U.S. at 460-61 (Brennan, J., dissenting). Justice Brennan is correct that the Silverman Court found a Fourth Amendment violation without first requiring proof of a technical trespass within the meaning of local property law.
123. See Silverman, 365 U.S. at 505, 511 ("Inherent Fourth Amendment rights are not inevitably measurable in terms of ancient niceties of tort or real property law."). However, the Silverman Court did require evidence of an actual physical invasion. Id. at 512 ("[Our] decision here does not turn upon the technicality of a trespass upon a party wall as a matter of local law. It is based upon the reality of an actual intrusion into a constitutionally protected area."). Consequently, notwithstanding Justice Brennan's observation in Lopez, Silverman cannot be read as a rejection of the physical invasion requirement first established in Olmstead.
124. See also Desist v. United States, 394 U.S. 244, 248 (1969) (refusing retroactive application of its decision in Katz because "[h]owever clearly our holding in Katz may have been foreshadowed, it was a clear break with the past").
125. Katz, 389 U.S. at 352 (citing Olmstead v. United States, 277 U.S. 438, 457, 464, 466).
126. Id. at 353 (alteration in original) (quoting Warden v. Hayden, 387 U.S. 294, 304 (1967)).
127. Id. at 351. Some scholars have suggested that Katz should not be read to completely redefine the Court's approach to the Fourth Amendment. For example, Orin Kerr posited that the case reflects little more than the adoption of a "looser" property-based model.
128. See Kerr, supra note 3, at 820-23. However, in light of the Court's own pronouncements regarding its intentions in the case,
129. see, e.g., Desist, 394 U.S. at 248, I side with those who interpret the case as a "clear break" with the past,
130. see, e.g., Sherry F. Colb, A World Without Privacy: Why Property Does Not Define the Limits of the Right Against Unreasonable Searches and Seizures, 102 MICH. L. REV. 889, 894 (2004) ("Protecting property . . . has in the past largely encompassed protecting privacy as well, and it is thus misleading to characterize the Fourth Amendment, textually or historically, as relevant to property but not to privacy.").
131. Katz, 389 U.S. at 351. Notwithstanding the Katz Court's pronouncement that the Fourth Amendment "protects people, not places," subsequent cases make clear that Katz should not be read as a complete rejection of the concept that some places are indeed protected by the amendment.
132. See Alderman v. United States, 394 U.S. 165, 175 (1969).
133. Katz, 389 U.S. at 352.
134. Id. at 361 (Harlan, J., concurring).
135. See Kyllo v. United States, 533 U.S. 27, 32 (2001);
136. California v. Ciraolo, 476 U.S. 207, 211 (1986).
137. Stephen E Henderson, Nothing New Under the Sun? A Technologically Rational Doctrine of Fourth Amendment Search, 56 MERCER L. REV. 507, 546 (2005);
138. see also Thomas K. Clancy, What Does the Fourth Amendment Protect: Property, Privacy or Security?, 33 WAKE FOREST L. REV. 307, 339 (1998) (arguing that use of privacy notions to define the amendment's protection leaves the amendment subject to "the vagaries of shifting Court majorities, which are able to manipulate the concept to either expand or contract the meaning of the word at will").
139. As Justice Brennan has observed, the right to privacy encompasses the dual (and independent) interests of security and secrecy. Illinois v. Andreas, 463 U.S. 765, 776 n.4 (Brennan, J., dissenting). Security is the Fourth Amendment interest intruded upon by the government's physical intrusion into a space. Secrecy, on the other hand, is the interest potentially implicated by nonphysical forms of government surveillance. Id.
140. Smith v. Maryland, 442 U.S. 735, 740 (1979) (quoting Katz, 389 U.S. at 351). The first prong of the Katz test has alternatively been described as examining whether the defendant "acted in such a way that it would have been reasonable for him to expect that he would not be observed." United States v. Taborda, 635 F.2d 131, 137 (2d Cir. 1980).
141. In Ciraolo, the Court found that the defendant's construction of two fences - one six feet tall and a second ten feet tall - around the entire perimeter of his property, 476 U.S. at 209, demonstrated a "subjective intent and desire to maintain privacy as to his unlawful agricultural pursuits," id. at 211. However, the Court went on to observe that Ciraolo had taken no steps to shield his backyard from aerial views. Id. at 211-12. This failure, the Court found, left open the question of whether Ciraolo possessed "a subjective expectation of privacy from all observations . . . ." Id. at 212. Similarly, in Florida v. Riley, 488 U.S. 445 (1989), the Court observed that the defendant's failure to completely cover his greenhouse defeated any claim that he possessed a subjective expectation of privacy in the interior of the structure. Id. at 450.
142. See, e.g., Bond v. United States, 529 U.S. 334, 338-39 (2000);
143. Ciraolo, 476 U.S. at 209, 211.
144. Smith, 442 U.S. at 740-41.
145. Id. at 741 n.5.
146. See Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 384 (1974) ("An actual, subjective expectation of privacy obviously has no place in a statement of what Katz held or in a theory of what the fourth amendment protects.").
147. The Court's decision in Oliver v. United States, 466 U.S. 170 (1984), is a salient example of a constitutional analysis driven by the objective reasonableness prong. Id. at. 177 ("The Amendment does not protect the merely subjective expectation of privacy, but only those 'expectation[s] that society is prepared to recognize as reasonable.'" (alteration in original) (internal quotation omitted) (quoting Katz v. United States, 389 U.S. 347, 361 (1967))). In Oliver, the defendant was charged with growing marijuana on his property in a field behind his house. Id. at 173. There was little dispute that the defendant had demonstrated a clear subjective expectation of privacy with regard to the field. Id. Indeed, to get to the marijuana, the police traveled onto defendant's property and around a locked gate posted with a "No Trespassing" sign. Id. Several hundred yards past the gate, a barn, and a parked camper, they found the defendant's crop. Id. The trial court, suppressed the evidence, finding that the defendant "had done all that could be expected of him to assert his privacy in the area of the farm that was searched." Id. (referring to the trial court's decision). However, while acknowledging that the defendant made clear his subjective desire for privacy, the Court concluded that that desire ought not to be given legal validity. Id. at 179; see also California v. Greenwood, 486 U.S. 35, 41 (1988) (concluding that society was not prepared to recognize as reasonable defendant's expectation of privacy in "trash left for collection in an area accessible to the public"); Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978) ("Obviously . . . a 'legitimate' expectation of privacy by definition means more than a subjective expectation of not being discovered.").
148. Smith, 442 U.S. at 740 (quoting Katz, 389 U.S. at 361).
149. Oliver, 466 U.S. at 182-83 (footnote omitted);
150. see also id. at 182 n.13 ("Certainly the Framers did not intend that the Fourth Amendment should shelter criminal activity wherever persons with criminal intent choose to erect harriers and post 'No Trespassing' signs.").
151. See Hudson v. Palmer, 468 U.S. 517, 525 n.7 (1984);
152. Smith, 442 U.S. at 741 n.5 (noting that "a normative inquiry would be proper").
153. Rakas, 439 U.S. at 153 (Powell, J., concurring).
154. Id. at 152-53.
155. Minnesota v. Carter, 525 U.S. 83, 88 (1998) (quoting Rakas, 439 U.S. at 143 n.12).
156. United States v. Jacobsen, 466 U.S. 109, 122-23 (1979) (finding that a field test that revealed only the presence of cocaine was not a search).
157. Katz v. United States, 389 U.S. 347, 352 (1967);
158. see also id. at 353 ("The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone boom . . . ." (emphasis added)).
159. Smith v. Maryland, 442 U.S. 735, 742 (1979) (characterizing the pen register used by the government as a form of technology with "limited capabilities" because it revealed only the numbers punched into the keypad, but not the contents of any communication).
160. See, e.g., Ric Simmons, The Two Unanswered Questions of Illinois v. Caballes: How to Make the World Safe for Binary Searches, 80 TUL. L REV. 411, 436, 438-39 (2005) (suggesting that the intrusiveness inquiry should be discarded entirely because it signals a resurgence of the physical intrusion trigger). To the extent that Ric Simmons suggests only that application of Fourth Amendment search doctrine should not turn on the question of physical invasion, we are in agreement. However, I cannot agree, and the case law does not support, the further notion that the "intrusiveness" of government conduct (when properly defined as the quality and quantity of information potentially revealed by surveillance) is irrelevant to the existence of a search.
161. In his article, Simmons cites the Supreme Court's decision in Bond v. United States, 529 U.S. 334 (2000), as evidence that application of an intrusiveness inquiry constitutes a revitalisation of the physical invasion trigger. Simmons, supra note 121, at 437. In Bond, the Court found that a Border Patrol agent's physical manipulation of a bus passenger's luggage constituted an unreasonable search. 529 U.S. 334. While Simmons's reading of Bond arguably finds some traction in the Court's language, a closer reading of the case reveals that the Bond Court did not in fact conflate the two concepts. As Simmons noted, the Court did observe that '"[p]hysically invasive inspection is simply more intrusive than purely visual inspection.'" Simmons, supra note 121, at 436 (alteration in original) (quoting Bond, 529 U.S. at 337). However, beyond this observation, at no time did the Court go on to equate Fourth Amendment intrusiveness with notions of trespass. In Bond, the greater intrusion for purposes of the Fourth Amendment resulted from the quality and quantity of information revealed by the officer's manipulation, not the physical nature of that inspection. Indeed, that the Court did not intend for the intrusiveness inquiry to resuscitate the physical invasion trigger is made clear by the Court's observation that not all physical contact with the bag was constitutionally objectionable. Bond, 529 U.S. at 338-39 ("[A] bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here." (emphasis added)). In other words, though Simmons deems the terms "physical invasion" and "intrusiveness" as legally interchangeable, the Court does not. Intrusiveness is a term of art for purposes of Fourth Amendment analysis and one that has developed a rich and significant, history in the context of analyzing the constitutionality of surveillance aids. Under these circumstances, rigorous adherence to a precise use of the language is crucial.
162. See United States v. Place, 462 U.S. 696, 707 (1983) (concluding that any expectation of privacy the owner had in his luggage was not unreasonably violated by a dog sniff because "no other investigative procedure . . . is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure" (emphasis added)); see also Illinois v. Caballes, 543 U.S. 405, 409 (2005) (quoting Place, 462 U.S. at 707, for the proposition that a dog sniff "discloses only the presence or absence of narcotics, a contraband item" (emphasis added)); Jacobsen, 466 U.S. at 124 (finding that a warrantless field test for cocaine did not intrude upon any legitimate expectations of privacy where "the manner in which information is obtained through this investigative technique is much less intrusive than a typical search" (emphasis added) (quoting Place, 462 U.S. at 707)). It should be noted that the proposition that dog sniffs are limited inspections, which reveal only the presence or absence of contraband, has been called into question.
163. See, e.g., Caballes, 543 U.S. at 411 (Souter, J., dissenting) ("The infallible dog, however, is a creature of legal fiction.").
164. See, e.g., Place, 462 U.S. at 707.
165. See infra Part II.C.2.
166. 440 U.S. 741 (1979).
167. 442 U.S. 735 (1979).
168. 460 U.S. 276 (1983). Prior to Caceres, the Court considered five cases involving enhanced surveillance without specifically examining the intrusiveness of the challenged government conduct. In each of these cases, however, the narrow nature of the question before the Court, or the broader inapplicability of Katz, precluded the intrusiveness inquiry. See United States v. Chadwick, 433 U.S. 1, 4 (1977) (observing without further comment that the challenged search of the defendant's footlocker was preceded by a dog sniff);
169. United States v. U.S. Dist. Court, 407 U.S. 297, 299 (1972) (examining whether presidential authorization of enhanced surveillance in matters of national security could constitutionally replace prior judicial authorization);
170. United States v. White, 401 U.S. 745, 754 (1971) (refusing to give retroactive application to Katz);
171. Desist v. United States, 394 U.S. 244, 246 (1969) (same); Alderman v. United States, 394 U.S. 165, 174, 180 (1969) (limiting analysis to a question of standing and the procedures to be applied in the lower court on remand).
172. Caceres, 440 U.S. at 743.
173. Id. at 751-52.
174. Id. at 750 (quoting United States v. White, 401 U.S. 745, 751 (1971), for the proposition that "'a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without . . . otherwise violating the latter's Fourth Amendment rights'").
175. Id. at 751 (quoting White, 401 U.S. at 751).
176. Significantly, where the location of the search in Smith v. Maryland, 442 U.S. 735 (1979), was a private home, the Court's discussion of the intrusiveness of the technology mimics that of the intrusiveness discussion in Kyllo v. United States, 533 U.S. 27 (2001). In both cases, the searched location was a home, an area typically excluded from the intrusiveness inquiry. Thus, it should have mattered little how the technology worked in either case. Nonetheless, the majority in each case found it necessary to categorize the technology at issue before assessing the constitutionality of its use without a warrant. As noted above, in Kyllo, in which Fourth Amendment protection was extended, the majority's description of the thermal imager suggests that the devise is extrasensory. 533 U.S. at 34. In contrast, in Smith, in which the Fourth Amendment was found not to apply, the pen register was characterized as sense augmenting. 442 U.S. at 744.
177. Smith, 442 U.S. at 736.
178. Id. at 744.
179. Id. at 741 (quoting United States v. N.Y. Tel. Co., 434 U.S. 159, 167 (1977)). It would also be plausible to suggest that the Court's decision in Smith turned upon a determination that the scope of information potentially revealed by the pen register was extremely limited. For a fuller discussion of the impact of the potential disclosure inquiry on constitutional treatment, see infra Part II.C.2.
180. 460 U.S. 276 (1983). Three months after issuing its decision in Knotts, the Court decided United States v. Place, 462 U.S. 696 (1983). The extrasensory surveillance aid at issue in Place was a drug-sniffing dog. Id. at 697-98. The next year, the Court decided United States v. Jacobsen, 466 U.S. 109 (1984), in which it determined that a warrant was not needed to conduct a chemical field test for cocaine. Id. at 125.
181. Knotts, 460 U.S. at 277.
182. Id.
183. United States v. Moore, 562 F.2d 106, 112 (1st Cir. 1977).
184. Knotts, 460 U.S. at 280-81.
185. Id.
186. Id. at 282.
187. Id. at 281;
188. see also id. at 282 (noting that "[v]isual surveillance from public places along [codefendant] Petschen's route . . . would have sufficed to reveal all of these facts to the police"); id. at 283-84 (observing that both the beeper at issue in Knotts and the pen register at issue in Smith did nothing more than a human tracker or live operator would have been able to do); id. at 284 (criticizing the lower appellate court, which rejected the warrantless use of the beeper, for ignoring the "limited use which the government made of the signals from this particular beeper"); id. at 285 (commenting that "[a] police car following Petschen at a distance throughout his journey could have observed him leaving the public highway and arriving at the cabin owned by respondent"); id. (noting that "the beeper was [not] used in any way to reveal information . . . that would not have been visible to the naked eye from outside the cabin").
189. Id. at 284-85.
190. Arguing that application of the Fourth Amendment should bear no relationship to the type of information revealed by a particular technology or to the way in which the technology operates, at least one commentator has suggested that the Court's Kyllo decision in fact was a repudiation of the longstanding distinction between sense augmenting and extrasensory.
191. See Simmons, supra note 121, at 433-34. There are two problems, however, with Simmons's conclusion. First, the Court has never suggested that functionality alone is the key to constitutional treatment. Rather, as the Court has made clear, both the functionality of a particular form of technology and the scope of information it can potentially disclose are relevant to its constitutional treatment.
192. See, e.g., United States v. Jacobsen, 466 U.S. 109, 122-23 (1984). Moreover, the suggestion that Kyllo is a repudiation of the Court's longstanding categorization of technology simply cannot be reconciled with the clear language of the majority and dissenting opinions in the case, both of which took great pains to objectively categorize the type of information revealed by the thermal imager in question. Simmons is correct to suggest that a functionality analysis alone is ill-advised. However, this statement does little to advance a meaningful discussion of the existing analytical framework, which incorporates analysis of both the functionality of government surveillance equipment and the quantity of information potentially revealed by its use.
193. Kyllo v. United States, 533 U.S. 27, 29 (2001).
194. Id.
195. Id. at 29-30.
196. Id. at 30.
197. Id. at 38 n.5;
198. see also id. at 29 (observing that the thermal imager detected "infrared radiation, which virtually all objects emit but which is not visible to the naked eye");
199. id. at 35 n.2 (disputing the dissent's description of the thermal imager as a sense-augmenting device by noting that "on the night of January 16, 1992, no outside observer could have discerned the relative heat of Kyllo's home without thermal imaging").
200. Id. at 40;
201. see also id. at 38 n.5 (commenting that the Kyllo decision should be read to vindicate the notion that a constitutional line is crossed whenever technology permits perception of that which is otherwise imperceptible).
202. Id. at 43 (Stevens, J., dissenting).
203. Id. at 34 (majority opinion) ("We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical 'intrusion into a constitutionally protected area' constitutes a search." (intetnal citation omitted) (quoting Silverman v. United States, 365 U.S. 505, 512 (1961))).
204. Id. at 43 (Stevens, J., dissenting).
205. See, e.g., United States v. Place, 462 U.S. 696, 707 (1983) (examining both the type of information revealed by the challenged dog sniff and the quantity of information disclosed).
206. 476 U.S. 227 (1986).
207. Id. at 229.
208. Id. at 231.
209. Id. at 234.
210. Id. at 238 ("Here, EPA was not employing some unique sensory device that, for example, could penetrate the walls of buildings and record conversations in Dow's plants, offices or laboratories . . . .");
211. see also id. ("The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems."). Interestingly, the district court's decision in the case, which found that the Fourth Amendment had been breached, was grounded in reasoning that the aerial camera used by the Environmental Protection Agency (EPA) was better categorized as an extrasensory device. Dow Chem. Co. v. United States, 536 F. Supp. 135.5, 1367 (E.D. Mich. 1982) (rejecting the EPA's contention that "the camera can't see what the eye can't see," and finding that the camera captured "a great deal more than the human eye could ever see").
212. Dow Chem., 476 U.S. at 238-39 n.5.
213. Id. at 239.
214. Id. at 238;
215. see also id. at 250 n.12 (Powell, J., dissenting) (complaining that the majority opinion "holds that Dow had no reasonable expectation of privacy from surveillance accomplished by means of a $22,000 mapping camera, but that it does have a reasonable expectation of privacy from satellite surveillance and photography"); California v. Ciraolo, 476 U.S. 207, 215 n.3 (1986).
216. See supra note 143 and accompanying text.
217. United States v. Knotts, 460 U.S. 276, 281 (1983).
218. As discussed in greater detail below in Part III.A, some lower courts and legal commentators read the Knotts decision as a blanket authorization of warrantless tracking in public spaces. However, where such a reading of the case ignores the important limitations that the Court itself placed on the holding, that reading should be rejected.
219. Knotts, 460 U.S. at 283.
220. Id. at 284.
221. Only two binary search methods are presently being effectively employed by lawenforcement agents: the dog sniff and the chemical field test for drugs. See generally Simmons, supra note 121.
222. 462 U.S. 696 (1983).
223. Id. at 697-99.
224. Id. at 707 ("A 'canine sniff by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view . . . .").
225. Id.
226. 466 U.S. 109 (1984).
227. Id. at 111.
228. Id. at 115, 118-22.
229. Id. at 122.
230. Id. at 124 n.24 (noting that the Place decision was grounded not in the absence of any "physical invasion of Place's effects" but rather in the limited information revealed by the dog sniff at issue in that case);
231. see also Illinois v. Caballes, 543 U.S. 405, 409-10 (2005) (observing that the different outcomes in Caballes and Kyllo could be justified in part by the amount of information revealed in each case).
232. See, e.g., Kyllo v. United States, 533 U.S. 27, 37 (2001) ("The Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of information obtained.").
233. Id. at 40 ("We have said that the Fourth Amendment draws a firm line at the entrance to the house." (internal quotation omitted)).
234. Cf. Irvine v. California, 347 U.S. 128, 132, 136-38 (1954) (refusing to impose the federal exclusionary rule as a sanction in that case upon the state actors, despite their repeated intrusions into the petitioner's home to install a concealed microphone, intrusions which the Court characterized as "flagrantly, deliberately, and persistently violat[ing] . . . the Fourth Amendment").
235. See, e.g., Alderman v. United States, 394 U.S. 165, 191 (1969) (Harlan, J., concurring in part and dissenting in part) (complaining that "we have not buried Olmstead, so far as it dealt with the substance of Fourth Amendment rights, only to give it new life in the law of standing. Instead we should reject traditional property concepts entirely, and reinterpret standing law in the light of the substantive principles developed in Katz" (emphasis added)).
236. Id. at 180.
237. Compare United States v. Knotts, 460 U.S. 276 (1983), with United States v. Karo, 468 U.S. 705 (1984).
238. Karo, 468 U.S. at 714;
239. see also Knotts, 460 U.S. at 281-82 (acknowledging the limited nature of information revealed by beeper technology, but nonetheless suggesting that the warrantless use of such technology in the home would be constitutionally impermissible).
240. The Court has seemed somewhat less inclined to include within this analytical perimeter areas beyond a home's four walls, regardless of proximity to the home. See Florida v. Riley, 488 U.S. 445 (1989) (applying the objective reasonableness test to permit warrantless aerial observation of a greenhouse located within a few feet of defendant's home); California v. Ciraolo, 476 U.S. 207 (1986) (applying the objective reasonableness test to permit warrantless aerial surveillance of the defendant's fenced backyard).
241. Arguably, the decision in Smith v. Maryland, 442 U.S. 735 (1979), is a notable exception to the Court's general pattern of assuming the objective reasonableness of one's subjective expectation of privacy with regard to activities conducted inside the four walls of one's home. In Smith, the Court was asked to consider whether the government's use of a pen register to track the numbers dialed from the defendant's home telephone was a violation of the Fourth Amendment. Id. at 736. In finding that the pen register's use did not constitute a search, the Court held that "even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation" was not reasonable. Id. at 743. Notwithstanding the seeming conflict between this ruling and the Court's otherwise consistent policy, it is possible to reconcile the two. The logic underlying reconciliation is weaved throughout the Smith opinion itself. According to the Court, Smith knowingly transmitted the telephone numbers he dialed from his home telephone to the telephone company. Id. at 743. This knowing transmission to a third party, according to the Smith Court, defeated any expectation of privacy Smith might otherwise have claimed in the information. Id. at 743-44. Described somewhat differently, Smith's conduct was analytically akin to leaving the sides and top of his greenhouse exposed and, therefore, deserving of no greater respect by the Court. See Riley, 488 U.S. at 450 (finding that an officer's observations through gaps in a greenhouse's roof and sides was not a search within the meaning of the Fourth Amendment). I do not broach in this Article the numerous concerns raised by the Smith Court's "assumption of risk" analysis.
242. See generally Smith, 442 U.S. at 750 (Marshall, J., dissenting) (noting that "[i]t is idle to speak of 'assuming' risks in contexts where, as a practical matter, individuals have no realistic alternative").
243. Amsterdam, supra note 110, at 400.
244. This number does not include three federal court decisions that mention GPS tracking - United States v. Eberle, 993 F. Supp. 794 (D. Mont. 1998);
245. United States v. McIver, 186 F.3d 1119 (9th Cir. 1999);
246. United States v. Levit, 39 F. App'x 97 (6th Cir. 2002). Though the police installed a GPS device on the defendant's car in Eberle, 993 F. Supp. at 796-98, the legality of that action was never reached by the district court. A radio transmitter was simultaneously placed on the car by law enforcement and was, according to the district court's opinion, the only signal monitored by the surveillance team. Id.;
247. see also McIver, 186 F.3d at 1123 (reviewing the convictions of Eberle and his codefendant McIver, and observing that use of the GPS tracking device was not at issue where that device malfunctioned, making the radio beeper the only technology used during the challenged surveillance);
248. Levit, 39 F. App'x at 99 (observing, without further comment, that a GPS device was installed on the defendant's vehicle).
249. This number does not include two state court decisions that mention GPS tracking-State v. Clifton, 580 S.E.2d 40 (N.C. Ct. App. 2003), and Whitehead v. State, 574 S.E.2d 351 (Ga. Ct. App. 2002). In Clifton, the police located a car stolen by the defendant using the vehicle's factory-installed GPS technology. 580 S.E.2d at 42. However, the defendant never challenged this action. Id. Similarly, in Whitehead, the police tracked the location of a confidential informant using a GPS receiver. However, the defendant never raised the legality of this action as a ground for relief on appeal. Whitehead, 574 S.E.2d at 354-55.
250. In United States v. Berry, 300 F. Supp. 2d 366 (D. Md. 2004), the court found it unnecessary to resolve the question of whether the use of a GPS device constitutes a search and seizure. Id. at 368. However, three state courts have concluded (or assumed) that the use of a GPS device requires some form of prior judicial authorization.
251. See People v. Obujen, No. H026715, 2005 WL 519233, at *10 (Cal. Dist. Ct. App. May 7, 2005) ("Assuming, without deciding, that the GPS surveillance of defendant's vehicle was a search within the meaning of the Fourth Amendment . . . .");
252. People v. Lacey, No. 2363N/02, 2004 WL 1040676, at *8 (N.Y. Nassau County Ct. May 6, 2004) (finding that a warrant is required to install a GPS tracking device on a vehicle);
253. State v. Jackson, 76 P.3d 217, 230-31 (Wash. 2003) (finding that a warrant is required prior to installation and use of a GPS device). In contrast, a fourth state court and two federal courts have found that law enforcement's surreptitious use of GPS surveillance triggers no Fourth Amendment concerns at all.
254. See United States v. Moran, 349 F. Supp. 2d 425, 467 (N.D.N.Y. 2005) (finding that "there was no search or seizure and no Fourth Amendment implications in the use of the GPS device");
255. People v. Gant, 802 N.Y.S.2d 839, 846 (N.Y. Westchester County Ct. 2005) (reading Knotts to support the limitless proposition that "a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another");
256. United States v. Garcia, No. 0.5-CR-155-C, 2006 WL 298704, at *8 (W.D. Wis. Feb. 3, 2006) (recognizing that vast amounts of information may be gathered through warrantless GPS tracking, but finding that "[h]owever Orwellian and outrageous this may seem, it was settled in favor of the government in Knotts").
257. 349 F. Supp. 2d 425.
258. 802 N.Y.S.2d 839.
259. 2006 WL 298704.
260. See supra note 192. It should be noted that the court in Garcia did find that the installation of a GPS-monitoring device constituted a seizure within the meaning of the Fourth Amendment, requiring at least a reasonable suspicion on the part of law enforcement that the defendant was engaging in criminal activity. Garcia, 2006 WL 298704, at *7 ("There is no persuasive authority for the proposition that the government may, on nothing more than its say-so, surreptitiously apply monitoring devices to the outside of private motor vehicles.").
261. In Gant, a New York state trial court did not discuss the intrusive capabilities of GPS. Rather, the Gant court assumed sub silentio that GPS-enabled tracking merited the same constitutional treatment that had previously been afforded to beeper technology. Gant, 802 N.Y.S.2d at 846-47. Similarly, in Moron, 349 F. Supp. 2d at 467, the court treated use of GPS-enabled devices as indistinguishable from mere visual surveillance.
262. Moran, 349 F. Supp. 2d at 467.
263. Id.
264. Id.
265. Id. at 468.
266. 460 U.S. 276 (1983).
267. Moran, 349 F. Supp. at 467.
268. Knotts, 460 U.S. at 284 ("[I]f such dragnet type law enforcement practices as [Knotts] envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.").
269. See, e.g., People v. Obujen, No. H026715, 2005 WL 519233, at *10 (Cal. Dist. Ct. App. May 7, 2005) (recognizing that beeper tracking is not "equivalent to GPS surveillance, because the electronic monitoring device merely allowed police to maintain their visual surveillance of the defendant's vehicle").
270. See, e.g., id. (finding GPS surveillance of the defendant's vehicle permissible under California law where the defendant was a probationer and the search was legitimately related to law enforcement interests);
271. People v. Lacey, No. 2463N/02, 2004 WL 1040676, at *4 (N.Y. Nassau County Ct. May 6, 2004) (finding, in a somewhat convoluted decision, that article 1, section 12 of the New York State Constitution extends the protections of the Fourth Amendment to the installation of a GPS device incorporating cellular technology).
272. 76 P.3d 217 (Wash. 2003).
273. Id. at 220.
274. Id.
275. Id. at 220-21.
276. Id. at 221.
277. Id.
278. Id.
279. Id. at 222.
280. Id.
281. Id. at 223.
282. Id. at 222 (quoting State v. Young, 123 Wash. 2d 173, 182 (1994)).
283. Id. ("[T]he nature and extent of information obtained by the police, for example, information concerning a person's associations, contacts, finances, or activities is relevant in deciding whether an expectation of privacy an individual has is one which a citizen of this state should be entitled to hold.").
284. Id. at 223-24.
285. Id. at 223.
286. Id. (observing that the information revealed by GPS devices was qualitatively different from that revealed by sense-augmenting forms of technology like binoculars or flashlights).
287. Id.
288. Id.
289. 442 U.S. 735 (1979).
290. Id. at 744.
291. Dow Chem. Co. v. United States, 476 U.S. 227, 238 (1986).
292. Jackson, 76 P.3d at 223.
293. Id.
294. Id. at 224.
295. The Jackson court repeatedly noted the limitations of its holding.
296. See, e.g., id. at 222 n.1 ("Jackson does not claim or suggest in his petition for review that the Fourth Amendment was violated. Accordingly, there is no issue before us under the Fourth Amendment.").
297. See supra note 206.
298. 300 F. Supp. 2d 366 (D. Md. 2004).
299. Id. at 367.
300. Id. at 368 ("The Supreme Court's analysis may or may not cover a GPS, which, unlike a beeper, is a substitute for police surveillance.").
301. Id. ("The Supreme Court might conclude, however, that the new technology is so intrusive that the police must obtain a court order before using it.").
302. Id.
303. See, e.g., Eva M. Dowdell, You Are Here! - Mapping the Boundaries of the Fourth Amendment With GPS Technology, 32 RUTGERS COMPUTER & TECH. L.J. 109, 137 (2005) (concluding that "GPS defies the boundaries of established doctrines");
304. Mark G. Young, Note, What Big Eyes and Ears You Have! A New Regime for Covert Governmental Surveillance, 70 FORDHAM L. REV. 1017, 1021 (2001) (proposing a "fundamental rethinking" of Fourth Amendment protections).
305. See, e.g., John S. Ganz, Comment, It's Already Public: Why Federal Officers Should Not Need Warrants to Use GPS Vehicle Tracking Devices, 95 J. CRIM. L. & CRIMINOLOGY 1325, 1337 (2005).
306. Cf. GREENHALGH, supra note 71, at 4 (concluding that the Fourth Amendment "does not extend its protective umbrella over land in the public domain, such as streets, sidewalks, roads, or parks").
307. Ganz, supra note 238, at 1337.
308. Katz v. United States, 389 U.S. 347, 351 (1967).
309. Id. at 351-52;
310. see also United States v. Davis, 326 F.3d 361, 365 (2d Cir. 2003).
311. 460 U.S. 276, 283-84 (1983).
312. Commentator Stephen Henderson, advocating a "limited third party" approach to Fourth Amendment doctrine, has observed that though a driver "conveys his or her position to pedestrians and other drivers to avoid an accident . . . most drivers would not think they were conveying their entire driving route to bystanders." Henderson, supra note 103, at 547-48.
313. Under the existing intrusiveness rubric for technologically enhanced surveillance, the Court has arguably only once found a sense-augmenting form of surveillance to trigger Fourth Amendment concerns based upon the quantity of information revealed. Compare Katz, 389 U.S. at 352 (imposing a warrant requirement where conversations were recorded), with Smith v. Maryland, 442 U.S. 735, 741 (1979) (refusing to apply Fourth Amendment protections where only the numbers dialed were revealed). However, the Court has repeatedly reaffirmed in theory the notion that information that is not noteworthy for its quality may nonetheless be constitutionally noteworthy for its sheer quantity.
314. See Dow Chem. Co. v. United States, 476 U.S. 227, 238 (1986); Knotts, 460 U.S. at 284.
315. See, e.g., Kerr, supra note 3, at 838.
316. See Colb, supra note 98, at 897 (observing that, historically, "because privacy tended to correspond most closely with the ability to exclude others physically, it followed that privacy rights would closely track (although not mirror entirely) property rights").
317. Cf. Amsterdam, supra note 110, at 379 ("Even if our growing crime rate and its attendant mounting hysteria should level off, there will remain more than enough crime and fear of it in American society to keep our legislatures from the politically suicidal undertaking of police control.").
318. See supra Parts II.A.2, II.B.
319. Katz, 389 U.S. at 361.
320. State v. Jackson, 76 P.3d 217 (Wash. 2003).
321. United States v. Taborda, 635 F.2d 131, 137 (2d Cir. 1980).
322. See, e.g., Henderson, supra note 103, at 547-48 ("On the one hand, a driver intentionally conveys his or her position to pedestrians and other drivers to avoid an accident. On the other hand, most drivers would not think they were conveying their entire driving route to bystanders, though they surely recognize the possibility that another vehicle will travel the same route and thereby gather that information. That probability, however, decreases as the route becomes more lengthy or complex.").
323. Cf. California v. Ciraolo, 476 U.S. 207, 211 (1986) (accepting, at face value, the respondent's assertion of a "subjective intent and desire to maintain privacy as to his unlawful agricultural pursuits").
324. Katz, 389 U.S. at 361 (Harlan, J., concurring).
325. Smith v. Maryland, 442 U.S. 735, 740 (1979) (citing Katz, 389 U.S. at 361 (Harlan, J., concurring)).
326. See, e.g., Katz, 389 U.S. at 352-53;
327. Smith, 442 U.S. at 742, 744.
328. United States v. Berry, 300 F. Supp. 2d 366, 368 (D. Md. 2004) (observing that GPS surveillance could either be viewed as a high-tech "substitute for police surveillance" or simply as a "more sophisticated beeper"); see State v. Jackson, 76 P.3d 217, 223 (Wash. 2003).
329. See Berry, 300 F. Supp. 2d at 368 ("A GPS merely records electronically what the police could learn if they were willing to devote the personnel necessary to tail a car around the clock.").
330. See Kyllo v. United States, 533 U.S. 27, 33 (2001).
331. See United States v. Caceres, 440 U.S. 741, 750-51 (1979).
332. United States v. Knotts, 460 U.S. 276, 284 (1983) ("[I]f such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.").
333. Id. at 281.
334. Illinois v. Caballes, 543 U.S. 405, 416 n.6 (2005) (Souter, J., dissenting) (citation omitted).
335. Kyllo, 53.3 U.S. at 33.
336. For an example of the type of photographs that are currently available at no cost on the Internet, visit Google Maps (http://maps.google.com) to search any address or neighborhood in the country. It will provide you with a labeled (hybrid) or unlabeled (satellite) photograph of virtually any location in the country. The image of most residences allows you to clearly identify the residence and surrounding objects, including the type of cars parked in the driveway and larger items left in the open, such as children's play equipment, recycling bins, and trash cans.
337. See United States v. Poller, 43 F.2d 911, 914 (2d Cir. 1930) (Hand, J.) ("[T]he real evil aimed at by the Fourth Amendment is the search itself, that invasion of a man's privacy which consists in rummaging about among his effects to secure evidence against him."). To narrowly restrict the meaning of search, therefore, or to define so loosely the contours of its existence as to allow most things to be deemed nonsearches at the whim of individual decisionmakers, is to gut the heart of the amendment.
338. Amsterdam, supra note 110, at 400.
339. Lopez v. United States, 373 U.S. 427, 463 (1963) (Brennan, J., dissenting).
340. Helene Stapinski, Op-Ed., Shrugging All the Way, N.Y. TIMES, Dec. 10, 2006, § 14NJ, at 21 (discussing the use of a wiretap in the corruption case of Hudson County Executive Robert Janiszewski).
341. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973) (acknowledging that society holds a "deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice"); On Lee v. United States, 343 U.S. 747, 762 (1952) (Frankfurter, J., dissenting) ("[E]ncouragement to lazy, immoral conduct by the police does not bode well for effective law enforcement. Nor will crime be checked by such means.").
342. GREENHALGH, supra note 71, at 4.
343. U.S. CONST, amend. IV.
344. See Katz v. United States, 389 U.S. 347, 357 (1967) (observing that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment"). However, it must be noted that the legitimacy of the warrant requirement is the subject of considerable debate. Compare Amar, supra note 4, at 761 (arguing that the "words of the Fourth Amendment . . . do not require warrants, even presumptively, for searches and seizures"),
345. with Carol S. Steiker, Second Thoughts About First Principles, 107 HARV. L. REV. 820, 830 (1994) (arguing that "the fact that colonial history does not support the warrant requirement does not suggest that nothing supports it").
346. 333 U.S. 10 (1948).
347. Id. at 13-14.
348. Id. at 14;
349. see also United States v. Lefkowitz, 285 U.S. 452, 464 (1932) (observing that "[s]ecurity against unlawful searches is more likely to be attained by resort to search warrants than by reliance upon the caution and sagacity of petty officers while acting under the excitement that attends the capture of persons accused of crime");
350. Go-Bart Imp. Co. v. United States, 282 U.S. 344, 357-58 (1931) (finding that the warrantless search of the defendant's office "was a lawless invasion of the premises and a general exploratory-search in the hope that evidence of crime might be found");
351. Agnello v. United States, 269 U.S. 20, 32 (1925) ("The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws.").
352. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) ("Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant." (citation omitted)); Chapman v. United States, 36.5 U.S. 610, 617-18 (1961) (finding that the state police's warrantless search of the petitioner's rented house was unconstitutional despite the landlord's express authorization of the search);
353. cf. Payton v. New York, 445 U.S. 573, 576 (1980) (finding that the Fourth Amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest"); Beck v. Ohio, 379 U.S. 89, 96 (1964) ("An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause.").
354. But see Amar, supra note 4, at 757 (criticizing the inconsistency of Fourth Amendment law with the observation that "warrants are not required-unless they are").
355. Katz, 389 U.S. at 357.
356. Warden v. Hayden, 387 U.S. 294, 298 (1967) ("[N]either the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, 'the exigencies of the situation made that course imperative.'" (quoting McDonald v. United States, 335 U.S. 451, 456 (1948))).
357. Terry v. Ohio, 392 U.S. 1, 27 (1968) ("[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.").
358. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (defining the state's burden for establishing consent to search).
359. See Chimel v. California, 395 U.S. 752 (1969) (confirming that following arrest, an officer may search the arrestee's person and any areas within his immediate control for weapons or destructible evidence);
360. see also New York v. Belton, 453 U.S. 454 (1981) (modifying the Chimel rule, as applied to cars, to allow the search of the entire interior of an automobile, and any containers-open or closed-contained therein, following the arrest of its occupants);
361. Thornton v. United States, 541 U.S. 615 (2004) (permitting the search of the interior of a car under the Belton doctrine, even though the suspect was already outside of his car at the time of arrest);
362. United States v. Robinson, 414 U.S. 218 (1973) (broadening the principle of Chimel to allow the "full search" of an arrestee's person).
363. See Carroll v. United States, 267 U.S. 132, 154 (1925) (finding the warrantless stop and search of cars permissible where the police have "probable cause for believing that [the] vehicles are carrying contraband or illegal merchandise").
364. See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971).
365. See New York v. Burger, 482 U.S. 691, 707-09 (1987) (finding the warrantless administrative search of a junkyard permissible in light of the
366. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (finding that random drug testing of public school athletes was appropriate in light of the "special needs [that] exist in the public school context").
367. Terry v. Ohio, 392 U.S. 1, 27 (1968) ("Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual . . . .").
368. Cupp v. Murphy, 412 U.S. 291, 302 (1973);
369. Warden v. Hayden, 387 U.S. 294, 298-99 (1967).
370. But see Saltzburg, supra note 4, at 957-58 (expressing the view that the Court has created many exceptions to the warrant requirement that are arbitrary and unprincipled).
371. See supra Part III.C.
372. See, e.g., United States v. Berry, 300 F. Supp. 2d 366 (D. Md. 2004);
373. State v. Jackson, 76 P.3d 217 (Wash. 2003).
374. Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971).
375. Id.
376. Cf. Chimel v. California, 395 U.S. 752, 761 (1969) (lauding Justice Frankfurter's observation in dissent in United States v. Rabinowitz, 339 U.S. 56 (1950), that the "[Fourth] Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence").
377. Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973) ("This Court's decisions reflect a frank recognition that the Constitution requires the sacrifice of neither security nor liberty.").
378. McNabb v. United States, 318 U.S. 332, 347 (1943).
379. Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971) (quoting Gouled v. United States, 255 U.S. 298, 304 (1921)).