Keeping up with officer Jones: A comprehensive look at the fourth amendment and gps surveillance

Fordham Law Review

Volumn 79, Issue 4, 2011, Pages 1695-1741

  Kerrane, Kaitlyn A ^a  

^a FORDHAM UNIVERSITY   (United States)

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EID: 79955410862     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (410)

1. United States v. Maynard, 615 F.3d 544, 566-67 (D.C. Cir.), reh'g denied, 625 F.3d 766 (D.C. Cir.), and cert. denied, 131 S. Ct. 671 (2010).
2. Id. at 558.
3. United States v. Pineda-Moreno, 591 F.3d 1212, 1213 (9th Cir.), reh'g denied, 617 F.3d 1120 (9th Cir. 2010), petition for cert, filed, (U.S. Nov. 20, 2010) (No. 10-7515).
4. See Petition for Writ of Certiorari at 3, Pineda-Moreno, No. 10-7515 (Nov. 20, 2010).
5. Pineda-Moreno, 591 F.3d at 1213; see also Petition for Writ of Certiorari, supra note 4, at 3.
6. Pineda-Moreno, 591 F.3d at 1213; see also Petition for Writ of Certiorari, supra note 4, at 3.
7. Pineda-Moreno, 591 F.3d at 1213.
8. *1-2 (M.D. Pa. July 27, 2010).
9. *1.
10. *1-2.
11. Kim Zetter, FBI Allegedly Caught Using GPS To Spy on Student, CNN.COM (Oct. 08, 2010), http://articles.cnn.com/2010-10-08/tech/fbi.tracks.student. wired-1-device-gps-fbi?-s=PM:TECH.
12. Id.
13. Id.
14. People v. Weaver, 909 N.E.2d 1195, 1196 (N.Y. 2009).
15. Id.
16. Id. at 1195-96.
17. See generally Ben Hubbard, Police Turn to Secret Weapon: GPS Device, WASH. POST, Aug. 13, 2008, at A1, available at http://www.washingtonpost.com/ wpdyn/content/article/2008/08/12/AR2008081203275.html (discussing use generally, and specifically by Virginia police departments);
18. Brian Smith, Without Warrants, Police Use Trackers To Follow Suspects, RICH. REG., Sept. 27, 2009, at A1, available at http://richmondregister.com/ homepage/x546339112/Without-warrants-police-use-trackers-to-follow-suspects (reporting on an investigation into GPS use in Richmond, Virginia);
19. Morning Edition: GPS Devices Do the Work of Law Enforcement Agents, (National Public Radio broadcast Oct. 27, 2010), available at http://www.npr.org/templates/story/story.php?storyId=130851849 [hereinafter GPS Devices] (interview of Carol Johnson by Steven Inskeep regarding the general increase in use of GPS devices by law enforcement agencies).
20. Hubbard, supra note 17 (stating that the police have various surveillance techniques they do not want to disclose to the public); Smith, supra note 17 (reporting the Richmond Police Chief refused to comment on investigative techniques including GPS).
21. See, e.g., United States v. Sparks, No. 10-10067-WGY, 2010 WL 4595522, at *2 (D. Mass. Nov. 10, 2010).
22. See Petition for Writ of Certiorari, supra note 4, at 8-13 (summarizing the federal and state level splits).
23. See id. at 1.
24. See Dorothy J. Glancy, Privacy on the Open Road, 30 OHIO N.U. L. REV. 295, 308-09 (2004).
25. How Does GPS Work?, SMITHSONIAN NAT'L Am & SPACE MUSEUM, http://www.nasm.si.edu/gps/work.html (last visited Feb. 23, 2010).
26. Do You Know Where You Are? - The Global Positioning System, NAT'L OCEANIC & ATMOSPHERIC ADMIN. NAT'L OCEAN SERV. EDUC. (Mar. 25, 2008), http://oceanservice.noaa.gov/education/kits/geodesy/geo09-gps.html
27. Frequently Asked Questions, NAT'L COORDINATION OFF. FOR SPACE-BASED POSITIONING, NAVIGATION & TIMING, http://www.gps.gov/support/faq/ (last visited Feb. 23, 2010) (reporting "accuracy of 7.8 meters" with "95% confidence"); see also Hubbard, supra note 17 (describing the abilities of typical law enforcement GPS systems). Some types of devices have even better accuracy. See Glancy, supra note 22, at 309 (noting that differential GPS has accuracy of up to one meter); Renée McDonald Hutchins, Tied Up In Knotts? GPS Technology and the Fourth Amendment, 55 UCLA L. REV. 409, 420 (2007) (noting the European Galileo GPS satellite system can achieve one meter accuracy).
28. See 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, 1328-29 (2005) (reporting typical accuracy within two miles per hour); Hubbard, supra note 17 (discussing the use of the speed element to arrest a slow moving individual in residential neighborhoods where abductions were occurring).
29. See Hutchins, supra note 25, at 418 (stating that precipitation, fog, and sand do not affect the GPS).
30. See id. at 420.
31. See Susan J. Walsh & Ivan J. Dominguez, Privacy and Technology: Law Enforcement's Secret Use of GPS Devices, CHAMPION MAG., May 2009, at 29, available at http://ww.nacdl.Org/public.nsf/0/6666338cM8c6cf9852575e600629c0c? OpenDocument (noting that today's technology has improved from only a few years ago and is always increasing in capability while simultaneously decreasing in cost).
32. The GPS Revolution - GPS: A New Constellation, SMITHSONIAN NAT'L Am & SPACE MUSEUM, http://www.nasm.si.edu/gps/revolution.html (last visited Feb. 23, 2010).
33. Id.; see also Hutchins, supra note 25, at 414 (noting a 2005 increase to twenty-nine satellites); Hubbard, supra note 17 (describing an increase in use and decrease in cost since civilian use began in 1996).
34. See Jim Garamore, Lynn Discusses Budget Priorities for Space, U.S. DEPT. OF DEFENSE (Apr. 14,2010), http://www.defense.gov/News/NewsArticle.aspx?ID= 58751.
35. Ganz, supra note 26, at 1329 (discussing low costs and small size); see also Hutchins, supra note 25, at 419 (describing a GPS device that "measures just 2.56 inches by 1.7 inches by 1.1 inches and weighs just over three ounces"); Smith, supra note 17 (describing the local drug task force's GPS units as "small, lightweight, ruggedized, reliable, easy-to-use and easy-to-install" (internal quotation marks omitted)).
36. Marc Jonathan Blitz, Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a World that Tracks Image and Identity, 82 TEX. L. REV. 1349, 1374-75 (2004) (discussing how new technology decreases time and monetary costs); Ganz, supra note 26, at 1357 (comparing the few hundred dollar costs of GPS technology with the $1920 cost of a typical physical tail of the suspect).
37. See Glancy, supra note 22, at 300 (discussing how high manpower costs and the reactions of individuals being physically watched severely limit long-term physical tracking); Recent Case, United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), 120 HARV. L. REV. 2230, 2233-34 (2007) (noting that constant physical surveillance was cost prohibitive and GPS allows for "cost efficient fishing expeditions"); GPS Devices, supra note 17 (describing GPS as a "failsafe" way to track).
38. Ganz, supra note 26, at 1355-56 (discussing the higher accuracy of technological evidence).
39. Id. at 1356.
40. Compare United States v. Knotts, 460 U.S. 276, 277 (1983) (primitive beeper technology), with People v. Weaver, 909 N.E.2d 1195, 1196 (N.Y. 2009) (Q-ball GPS device - A GPS device that is battery operated), and Hutchins, supra note 25, at 418-19 (describing GPS "darts" that police can shoot at passing cars to provide instantaneous tracking). Generally, the use of all types of GPS devices have been increasing. See Smith, supra note 17 (reporting that local budgets and expenditure reports reflect the purchase of additional GPS units); GPS Devices, supra note 17 (discussing the Department of Justice's increasing use of GPS).
41. See Ganz, supra note 26, at 1330-32; Hubbard, supra note 17 (stating that Virginia police used GPS in robbery, narcotics, and homicide investigations).
42. Ganz, supra note 26, at 1329-30; see also Hutchins, supra note 25, at 447-48 (describing use of GPS to find a victim's body by tracking the suspect to the site).
43. Hubbard, supra note 17.
44. Ganz, supra note 26, at 1330-32; see United States v. Pineda-Moreno, 591 F.3d 1212, 1213 (9th Cir.) (drug trafficking), reh'g denied, 617 F.3d 1120 (9th Cir. 2010), petition for cert, filed, (U.S. Nov. 10,2010) (No. 10-7515); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007) (drug manufacturing); United States v. Sparks, No. 10-10067-WGY, 2010 WL 4595522, at *7 (D. Mass. Nov. 10, 2010) (bank robbery).
45. See Zetter, supra note 11 (discussing an FBI ongoing investigation of an American citizen with known ties to Egypt).
46. This Note will use the term "beeper" to discuss any tracking device that is not a GPS unit.
47. See United States v. Karo, 468 U.S. 705, 707 (1984); United States v. Knotts, 460 U.S. 276, 277 (1983).
48. Tarik N. Jallad, Recent Development, Old Answers to New Questions: GPS Surveillance and the Unwarranted Need for Warrants, 11 N.C. J.L. & TECH. 351, 354 (2010).
49. Id. at 356-57.
50. Id. at 357. There are other forms of technology to determine location that do not have to be attached. See Glancy, supra note 22, at 306, 309-13 (discussing toll tag transponders, telematic technology and wireless devices).
51. Jallad, supra note 46, at 357.
52. Id.; see also United States v. Maynard, 615 F.3d 544, 556 (D.C. Cir.), reh'g denied, 625 F.3d 766 (D.C. Cir.), cert, denied, 131 S. Ct. 671 (2010).
53. United States v. Karo, 468 U.S. 705, 707 n.1 (1984) (citing United States v. Knotts, 460 U.S. 276, 277 (1983)); Ganz, supra note 26, at 1328 (explaining the beeper's value lies in the police's ability to track it); Jallad, supra note 46, at 354-55.
54. See Ganz, supra note 26, at 1328.
55. See Jallad, supra note 46, at 358.
56. See Adam Koppel, Note, Warranting a Warrant: Fourth Amendment Concerns Raised By Law Enforcement's Warrantless Use of GPS and Cellular Phone Tracking, 64 U. MIAMI L. REV. 1061,1065 (2010) (discussing the remote tracking capabilities of the GPS).
57. See supra notes 24-28 and accompanying text.
58. Ganz, supra note 26, at 1328.
59. Id. at 1328-29.
60. Koppel, supra note 54, at 1065.
61. See People v. Weaver, 909 N.E.2d 1195, 1196 (N.Y. 2009) (noting the Q-ball device used permits "drive-by" downloading).
62. See generally Blitz, supra note 34 (discussing privacy concerns raised by various new technology); Glancy, supra note 22 (discussing privacy issues on the open road); Kate Bolduan, Is GPS a High-Tech Crime-Fighting Tool or Big Brother?, CNN.COM (Aug. 18, 2008), http://articles.cnn.com/2008-08-18/justice/ gps.tracking-1-gps-receiver-crimes-and-track-gps-evidence?-s=PM:CRIME (discussing both security and privacy concerns).
63. See PHILLIP A. HUBBART, MAKING SENSE OF SEARCH AND SEIZURE LAW: A FOURTH AMENDMENT HANDBOOK 21-22 (2005) (noting that British writs of assistance allowed for broad searches of "houses, vessels, warehouses, shops, and all other places for uncustomed goods" for the lifetime of the current sovereign plus six months);
64. see also THOMAS N. MCINNIS, THE EVOLUTION OF THE FOURTH AMENDMENT 17-18 (2009) (describing the general warrants and writs of assistance used in the colonies).
65. See HUBBART, supra note 61, at 60-67 (discussing the ratification debates and amendments regarding unreasonable search and seizure in Pennsylvania, Maryland, Virginia, New York, and North Carolina); MCINNIS, supra note 61, at 19 (discussing ratifying conventions that proposed amendments to bar unreasonable searches).
66. HUBBART, supra note 61, at 75-82.
67. U.S. CONST, amend. IV.
68. See JACOB W. LANDYNSKI, SEARCH AND SEIZURE AND THE SUPREME COURT: A STUDY IN CONSTITUTIONAL INTERPRETATIONS 42 (1966) (identifying possible interpretations). The Supreme Court itself has recognized that its interpretation varies. See California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring) ("[O]ur jurisprudence [has] lurched back and forth between imposing a categorical warrant requirement and looking to reasonableness alone.").
69. Little legislative history exists regarding the language of the Fourth Amendment and its ratification, making a definitive original understanding next to impossible. See THOMAS K. CLANCY, THE FOURTH AMENDMENT: ITS HISTORY AND INTERPRETATION 40-42 (2008); HUBBART, supra note 61, at 86 ("[Terms] have no obvious self-executing meaning and often excite considerable debate in given cases."); LANDYNSKI, supra note 65, at 42 ("The search and seizure provision ⋯ ha[s] both the virtue of brevity and the vice of ambiguity."). It is beyond the scope of this Note to determine the "correct" interpretation of the original language. Instead, this Note will simply apply the presumptions utilized by the Supreme Court in its analyses.
70. United States v. Leon, 468 U.S. 897, 913-14 (1984); Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (stating that a search of a protected area or interest is "presumptively unreasonable" without a search warrant); see also HUBBART, supra note 61, at 161-67 (discussing the development and application of the search warrant requirement rule in a number of different Fourth Amendment contexts).
71. There are a few long-standing criminal exceptions to this warrant requirement. See generally HUBBART, supra note 61, at 249-80 (discussing the rationales and applications of the search incident to lawful arrest, stop and frisk, automobile, consent, and exigent circumstances exceptions).
72. CLANCY, supra note 66, at 476 (defining probable cause); see also BLACK'S LAW DICTIONARY 1321 (9th ed. 2009) (defining probable cause as "[a] reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime).
73. See supra notes 64-69 and accompanying text.
74. See California v. Greenwood, 486 U.S. 35, 39-40 (1988) (determining that inspection of garbage is not a search and thus no warrant required); United States v. Knotts, 460 U.S. 276 (1983) (finding that no warrant is required for a tracking device because the monitoring was not a search); see also HUBBART, supra note 61, at 129 (discussing how these questions arise only in instances of first impression).
75. United States v. Jacobsen, 466 U.S. 109,113 (1984); see also infra Part I.C.
76. HUBBART, supra note 61, at 131.
77. See Burdeau v. McDowell, 256 U.S. 465, 475 (1921) (holding the Fourth Amendment's restraints are on government agencies only).
78. HUBBART, supra note 61, at 131.
79. Id.
80. See CLANCY, supra note 66, at 7-8.
81. See United States v. Knotts, 460 U.S. 276, 276 (1983) (applying Fourth Amendment protections to acts by Minnesota law enforcement); Smith v. Maryland, 442 U.S. 735, 737 (1979) (applying Fourth Amendment protections to acts by Baltimore city police); HUBBART, supra note 61, at 117 ("The Fourth Amendment applies to all state, federal and local law enforcement officials in the United States and its territories.").
82. HUBBART, supra note 61, at 132-33 (noting that intent, physical location, ability of others to similarly intrude, and general societal expectations are some of the considerations important in the analysis).
83. The Supreme Court has often disagreed on how to implement this test in various factual circumstances. See Kyllo v. United States, 533 U.S. 27 (2001) (5-4 decision); Dow Chem. Co. v. United States, 476 U.S. 227 (1986) (same); California v. Ciraolo, 476 U.S. 207 (1986) (same); Knotts, 460 U.S. at 276 (same).
84. See Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (overturning the former "target" theory of standing); see also CLANCY, supra note 66, at 96-98 (discussing the procedure and ramifications of the current standing doctrine).
85. See Rakas, 439 U.S. at 132-34.
86. See id, at 134; see also Rawlings v. Kentucky, 448 U.S. 98, 105-06 (1980) (holding that an individual could not challenge the search of another's purse even if it held the individual's contraband); HUBBART, supra note 61, at 112 (explaining that the individual making the claim must show that the activity violated her interests and not those of a third party).
87. HUBBART, supra note 61, at 112.
88. See CLANCY, supra note 66, at 610-11. The Court often engages in a cost-benefit analysis that balances the loss of pertinent evidence with the likelihood of future deterrence. See id. at 611.
89. Id. at 610. There is some debate over the continued applicability of the exclusionary rule and whether it serves a constitutional function. See id. at 612 (citing Hudson v. Michigan, 547 U.S. 586 (2006)).
90. See supra notes 72-77 and accompanying text.
91. See MCINNIS, supra note 61, at 223-24 (discussing the shift of focus in the Katz decision); Thomas K. Clancy, What Is a "Search" Within the Meaning of the Fourth Amendment, 70 ALB. L. REV. 1, 17-20 (2006) (comparing the Olmstead "literal view" and the intangible interests protected by Katz). Compare Olmstead v. United States, 277 U.S. 438, 466 (1928) (utilizing physical invasion to determine existence of Fourth Amendment searches), with Katz v. United States, 389 U.S. 347, 347 (1967) (purporting to shift the focus).
92. 389 U.S. 347 (1967).
93. Id. at 350 (protecting Katz's privacy from electronic listening in a public telephone booth).
94. Id. at 351. Legal scholars debate whether this shift was ever actually realized. See CLANCY, supra note 66, at 69 (comparing the liberal Court's intentions with the conservative Court's later restrictions of the Fourth Amendment); MclNNlS, supra note 61, at 225-26 (discussing whether Katz has lived up to its potential); Tracey Maclin, Katz, Kyllo, and Technology: Virtual Fourth Amendment Protection in the Twenty-First Century, 72 MISS.
95. L.J. 51, 81-83 (2002) (describing canine sniff and aerial surveillance cases to emphasize the physical intrusion analysis and the "impotence" of Katz).
96. Katz, 389 U.S. at 361 (Harlan, J., concurring). The Court utilizes the concurring opinion's language because Justice Potter Stewart's majority opinion failed to define the term "privacy" and proved difficult to apply. See CLANCY, supra note 66, at 59 n.68 (discussing the extensive use of the term "privacy" with little clarification on what was protected). This Note will not discuss various conceptualizations of privacy. For an in-depth discussion of privacy, see Daniel J. Solove, Conceptualizing Privacy, 90 CALIF. L. REV. 1087 (2002).
97. There are a number of possible reasons for the subjective prong's subordination. See HUBBART, supra note 61, at 134-35 (rationalizing the emphasis because constitutional rights are not defined by subjective intent); Rende McDonald Hutchins, The Anatomy of a Search: Intrusiveness and The Fourth Amendment, 44 U. RICH. L. REV. 1185, 1192 (2010) ("[T]he diminished focus on subjective expectations is driven by the practical reality that individuals rarely engage in criminal conduct without taking at least nominal efforts to avoid detection.").
98. Hutchins, supra note 25, at 428.
99. Hutchins, supra note 93, at 1191-92.
100. See Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV. 503, 516 (2007) ("[Protection for property under the Fourth Amendment remains a major theme of the post-Katz era ⋯." (internal quotation omitted)). In addition, the Fourth Amendment also protects personal property by prohibiting unreasonable seizures. Seizures do not normally implicate privacy concerns, but rather deprive the individual of dominion over her property. See HUBBART, supra note 61, at 216 & n.143. This Note will not address Fourth Amendment seizures, since GPS does not typically interfere with the possession or use of the object. See Soldal v. Cook Cnty., 506 U.S. 56, 61 (1992) (requiring "meaningful interference" with possessory interests to constitute a seizure).
101. See Minnesota v. Olson, 495 U.S. 91, 96-97 (1990) (extending the reasonable expectation of privacy to overnight guests in the home because they had been given a property interest in the home); United States v. Ross, 456 U.S. 798, 822-23 (1982) (holding that a person has a reasonable expectation of privacy in personal, private "containers"). Professor Orin S. Kerr argues that even Katz could be read as employing property-based interests in applying Fourth Amendment protections. See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 MICH. L. REV. 801, 823 (2004) (calling the installation of the electronic bug on the property used by Katz an invasion of Katz's temporary property interest in the telephone booth).
102. Hutchins, supra note 25, at 430 (noting that a subjective expectation of privacy can be supported as reasonable by property law concepts).
103. HUBBART, supra note 61, at 149-50.
104. Kerr, supra note 96, at 516 (discussing the property interest consideration as an example of the "positive law model" of Fourth Amendment analysis).
105. CLANCY, supra note 66, at 77-83 (discussing the right to exclude).
106. HUBBART, supra note 61, at 150-51. There is some indication that when the government engages in even a minor physical intrusion of a protected area or property to obtain information, the intrusion can violate the Fourth Amendment. See United States v. Knotts, 460 U.S. 276, 286 (1983) (Brennan, J., concurring) (citing Silverman v. United States, 365 U.S. 505, 509-12 (1961)). For a discussion of the factors contributing to substantiality, see infra Part I.C.3.
107. See United States v. Dunn, 480 U.S. 294, 300-01 (1987) (extending protection to the curtilage and stating that the proximity from the home, uses of the land, and steps taken to protect the area from others determines the curtilage); Oliver v. United States, 466 U.S. 170, 178 (1984) (highlighting the sanctity of the home under the Fourth Amendment); HUBBART, supra note 61, at 139-46 (discussing open fields and curtilage analysis as well as the Fourth Amendment protections extended to these areas).
108. Id. (citing Delaware v. Prouse, 440 U.S. 648, 662-63 (1979)).
109. Glancy, supra note 22, at 298 (citing Illinois v. Lidster, 540 U.S. 419 (2004)).
110. Arizona v. Gant, 129 S. Ct. 1710, 1720 (2009) (recognizing a lesser, but "nevertheless important and deserving of constitutional protection," reasonable expectation of privacy in vehicles).
111. Glancy, supra note 22, at 295 n.3.
112. See Oliver v. United States, 466 U.S. 170, 178 (1984) (identifying original intent, societal understanding, and location as considerations in determining whether a location requires constitutional protection); CHRISTOPHER SLOBOGIN, PRIVACY AT RISK 59 (2007) (identifying a series of past considerations).
113. See California v. Ciraolo, 476 U.S. 207, 212-15 (1986) (looking at public exposure and nature of the police intrusion); CLANCY, supra note 66, at 64-66 (identifying governmental regulations, technological advances, and empirical observations as examples of considerations utilized by the Supreme Court in its reasonable expectation of privacy analysis); Kerr, supra note 96, at 507 ("Most Supreme Court opinions feature multiple models [and considerations] to varying degrees, and they often switch from model to model without recognizing the change.").
114. See Katz v. United States, 389 U.S. 347, 351 (1967) (holding that whether the information has been exposed to the public significantly affects the expectation of privacy analysis); CLANCY, supra note 66, at 83-84 (discussing the public exposure consideration).
115. CLANCY, supra note 66, at 84-85; see also Kerr, supra note 96, at 508-09 (noting that when the likelihood is high that another will be able to pry into an individual's affairs, courts will not likely find a reasonable expectation of privacy).
116. Oliver, 466 U.S. at 179.
117. See id. at 173; CLANCY, supra note 35, at 123-25 (discussing the "open fields doctrine"). The phrase "open fields" refers more generally to undeveloped or unutilized land outside of the curtilage. Oliver, 466 U.S. at 180 n.11.
118. MCINNIS, supra note 61, at 233-38 (collecting aerial view cases, and arguing that this consideration has a limiting effect on Fourth Amendment protections).
119. Id.; see also SLOBOGIN, supra note 108, at 54-56 (discussing the development of the "naked eye exception").
120. See United States v. Knotts, 460 U.S. 276, 282-83 (1983) (noting that since the movements could be readily observed there was no search). There has been debate over the appropriateness of allowing third party observers, both actual and hypothetical, to preclude Fourth Amendment protection.
121. See John M. Junker, The Structure of the Fourth Amendment: The Scope of the Protection, 79 J. CRIM. L. & CRIMINOLOGY 1105, 1128-30 (1989) (arguing that the allowance of hypothetical observers undermines the Fourth Amendment protections).
122. California v. Greenwood, 486 U.S. 35, 40-41 (1988) (holding that since the garbage was "readily accessible to animals, children, scavengers, snoops, and other members of the public," the defendants had no legitimate expectation of privacy).
123. See United States v. Pineda-Moreno, 591 F.3d 1212, 1215 (9th Cir.), reh'g denied, 617 F.3d 1120 (9th Cir. 2010), petition for cert, filed, (U.S. Nov. 10, 2010) (No. 10-7515); see also discussion infra Parts II.B.l.a, II.B.3.a.
124. United States v. Maynard, 615 F.3d 544, 566 (D.C. Cir.) (holding that the fact that alternative means could be employed does not legitimize violative means (citing Kyllo v. United States, 533 U.S. 27, 35 n.2 (2001))), reh'g denied, 625 F.3d 766 (D.C. Cir.), cert, denied, 131 S. Ct. 671 (2010). Not all commentators agree on the relevance of this consideration. See CLANCY, supra note 66, at 319-21 (arguing that this considerations undermines the Fourth Amendment because it allows police to get otherwise unobtainable information, regardless of the minimal nature of the intrusion); MCINNIS, supra note 61, at 243 (arguing this consideration completely disregards the extent to which a person has tried to create an expectation of privacy, thereby undermining Katz).
125. Hutchins, supra note 25, at 430 (citing United States v. Jacobsen, 466 U.S. 109, 122-23 (1979)).
126. See Hutchins, supra note 93, at 1197-98 (identifying dog sniffs, narcotics tests and not detailed aerial photographs as minimally intrusive governmental activities not requiring warrants).
127. Id.
128. California v. Ciraolo, 476 U.S. 207, 213-14 (1986) (illustrating that the Court often uses multiple considerations by discussing the kind of information consideration, as well as the public exposure of flyover surveillance).
129. Andrew E. Taslitz, The Fourth Amendment in the Twenty-First Century: Technology, Privacy and Human Emotions, 65 LAW & CONTEMP. PROBS. 125, 147 (2002).
130. Id.
131. See, e.g., Amaechi v. West, 237 F.3d 356, 363-64 (4th Cir. 2001) (finding cavity searches more intrusive than visual strip searches, and so a reasonable expectation of privacy existed only in the former); United States v. Nerber, 222 F.3d 597, 601-03 (9th Cir. 2000) (finding the video surveillance violated the reasonable expectation of privacy of individuals videotaped in another's hotel room due to the intrusive nature of videotaping).
132. See Kerr, supra note 96, at 512-13 (identifying this analysis as the "private facts" model which focuses on the actual information collected instead of the method of collection).
133. Id. at 506; see also United States v. Jacobsen, 466 U.S. 109, 123 (1984) ("[G]overnmental conduct that can reveal whether a substance is [illicit], and no other arguably 'private' fact, compromises no legitimate privacy interest."); Katz v. United States, 389 U.S. 347, 352 (1967) (holding that the actual words spoken by an individual should not be "broadcast to the world" as this was too intrusive).
134. Hutchins, supra note 93, at 1199 (discussing how the Supreme Court favors this kind of information analysis); Koppel, supra note 54, at 1070-71 (examining the classification of various technology by the Court in this manner).
135. Hutchins, supra note 25, at 432.
136. Id. (arguing that the Court's emphasis on kinds of information has linked Fourth Amendment protection to the classification of devices as "sense augmenting" or sense enhancing).
137. Id. at 432-33.
138. Even significantly increased efficiency achieved by using "sense augmenting" devices does not warrant additional protection. See United States v. Knotts, 460 U.S. 276, 284 (1983) (holding the Fourth Amendment does not prohibit law enforcement from improving their senses with technology).
139. Hutchins, supra note 25, at 433; see also HUBBART,supra note 61, at 156 (discussing "sense-enhancing" technological devices).
140. Kyllo v. United States, 533 U.S. 27,29 (2001).
141. Id. at 40.
142. See Knotts, 460 U.S. at 283-84 (recognizing that twenty-four hour surveillance involves a significant quantity of information as compared to that gathered by a beeper).
143. Hutchins, supra note 25, at 440.
144. Id. at 438 (discussing the relevance of the quantity of information in extrasensory technological devices).
145. Id. at 441-42 (citing United States v. Place, 462 U.S. 696 (1983)).
146. Id. Binary searches provide a good example of how these reasonable expectation considerations interact: The court often highlights the limited type of information in addition to the low quantity of information provided. See supra note 128.
147. 489 U.S. 749 (1989).
148. Id. at 764 (recognizing the different privacy implications between "scattered disclosure" of information that has to be located and compiled and "a single clearinghouse of information").
149. Richard C. Balough, Global Positioning System and the Internet: A Combination with Privacy Risks, CBA REC, Oct. 2001, at 28,31 (citing Reporters, 489 U.S. 749).
150. Reporters, 489 U.S. at 751 (arising under the Freedom of Information Act, 5 U.S.C. §552(1982)).
151. Compare Blitz, supra note 34, at 1409-11 (discussing how video surveillance undermines privacy when police view the information it collects "in the aggregate" especially with ongoing recordings being maintained), with Orin Kerr, D.C. Circuit Introduces the "Mosaic Theory" of Fourth Amendment, Holds GPS Monitoring a Fourth Amendment Search, THE VOLOKH CONSPIRACY (Aug. 6, 2010, 2:46 PM), http://volokh.com/2010/ 08/06/d-c-circuit-introduces-mosaic-theory-of-fourth-amendment-holds-gps- monitoring-a-fourth-amendment-search/ (arguing Reporters does not apply in privacy cases). Commentators have also argued that the aggregation of information should be a search because it undermines the practical obscurity provided when each piece of information has to be individually identified and compiled. See WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 3.2(j) n.77 (5th ed. 2009) (citing Reporters, 489 U.S. at 749).
152. See United States v. Maynard, 615 F.3d 544, 561-62 (D.C. Cir.) (collecting cases and examining the differences in information obtained between prolonged and short-term surveillance), reh g denied, 625 F.3d 766 (D.C. Cir.), cert, denied, 131 S. Ct. 671 (2010).
153. See supra notes 137-41 and accompanying text.
154. See Payne v. Tennessee, 501 U.S. 808, 827 (1991).
155. 460 U.S. 276 (1983).
156. 468 U.S. 705 (1984).
157. Knotts, 460 U.S. at 278, 286.
158. Id. at 278-79.
159. Id. at 279 n.*. The concurrence in Knotts did note that it would be a more difficult case had the installation occurred on the personal property of the defendant. Id. at 286 (Brennan, J., concurring). See discussion infra Part II.A.2.
160. Maclin, supra note 91, at 118.
161. Karo, 468 U.S. at 711 ("[B]y no stretch of the imagination could it be said that respondents then had any legitimate expectation of privacy in [the DEA's can of ether]."). In addition, the Court found a sufficient exception to the warrant requirement due to the informant's consent to switch the can with the tracking device for an untainted can. Id.
162. *.
163. *.
164. Lower courts face both issues. See United States v. Jones, 625 F.3d 766, 770 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (denial of rehearing en banc); Petition for Writ of Certiorari, supra note 4, at i (including a question presented regarding installation).
165. Knotts, 460 U.S. at 285.
166. Karo, 468 U.S. at 715-16. Neither decision was unanimous. See Knotts, 460 U.S. at 277 (5-4 decision); Maclin, supra note 91, at 119 (noting that seven Justices in Karo agreed that the home was off limits for the use of beeper technology, but the Court split on the more difficult question of whether or not monitoring of other facilities constituted a search).
167. Knotts, 460 U.S. at 281.
168. Id. (quoting Cardwell v. Lewis 417 U.S. 583, 590 (1974)).
169. Id.
170. Id. at 281-82 ("When [defendant] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.").
171. Karo, 468 U.S. at 715.
172. Knotts, 460 U.S. at 284 (noting the police's limited use of the device).
173. Id. at 283-85.
174. Karo, 468 U.S. at 717 (rejecting the argument that a beeper was a "minuscule intrusion").
175. McINNIS, supra note 61, at 240 (quoting Karo, 468 U.S. at 715).
176. Karo, 468 U.S. at 714-15.
177. Id.; Knotts, 460 U.S. at 285.
178. Knotts, 460 U.S. at 285.
179. Id.
180. MCINNIS, supra note 61, at 239 ("In effect, [the Court found that] the beeper simply enhanced the ability of the police to perform visual surveillance."); Hutchins, supra note 25, at 435.
181. Karo, 468 U.S. at 714-15 (finding that the less intrusive nature of the search did not change the fact that the government obtained information they could not have otherwise obtained without a warrant).
182. Id. at 708 (explaining that the beeper technology was not accurate enough to determine in which storage locker the drum was located); Knotts, 460 U.S. at 278 (noting that the beeper provided limited information and that the signals were lost periodically).
183. Knotts, 460 U.S. at 283.
184. Id. at 284. Some argue that this time has now arrived. See Blitz, supra note 34, at 1386 (stating that the future the Court identified in Knotts may be upon society).
185. See The Supreme Court, 2009 Term-Leading Cases, 124 HARV. L. REV. 179, 184 n.58 (2010) (discussing the Court's recent struggles with applying precedent to new technology).
186. See, e.g., United States v. Pineda-Moreno, 591 F.3d 1212, 1216-17 (9th Cir.), reh'g denied, 617 F.3d 1120 (9th Cir. 2010), petition for cert, filed, (U.S. Nov. 10, 2010) (No. 10-7515); see also supra Part I.D.2 (discussing the considerations applied in Knotts and Kard).
187. See, e.g., United States v. Maynard, 615 F.3d 544, 559-61 (D.C. Cir.), reh'g denied, 625 F.3d 766 (D.C. Cir.), cert, denied, 131 S. Ct. 671 (2010); People v. Weaver, 909 N.E.2d 1195, 1199-1200 (N.Y. 2009).
188. United States v. Garcia, 474 F.3d 994, 997 (7th Cir. 2007) (collecting cases).
189. See supra Part I.D.I.
190. See infra Part II.A.
191. See supra Part I.C.2.
192. See, e.g., United States v. Mclver, 186 F.3d 1119, 1126-27 (9th Cir. 1999).
193. See, e.g., United States v. Shovea, 580 F.2d 1382, 1388 (10th Cir. 1978) (finding that officers had sufficient probable cause to attach tracking device and thus the attachment did not violate the Fourth Amendment); United States v. Moore, 562 F.2d 106, 112-13 (1st Cir. 1977) (holding warrantless attachment of tracking device "only if the officers have probable cause at the time").
194. See United States v. Pineda-Moreno, 591 F.3d 1212, 1215 (9th Cir.), reh'g denied, 617 F.3d 1120 (9th Cir. 2010), petition for cert, filed, (U.S. Nov. 10, 2010) (No. 10-7515); see also infra Part II.A. 1.
195. See, e.g., United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010); Mclver, 186 F.3d at 1126-27.
196. See supra Part I.C.3.a (discussing the public exposure consideration); See also Marquez, 605 F.3d at 610; Pineda-Moreno, 591 F.3d at 1215; Mclver, 186 F.3d at 1126-27.
197. 186 F.3d 1119 (9th Cir. 1999).
198. Id. at 1123. The GPS unit actually malfunctioned after three days and all monitoring of location was completed via the beeper technology. Id.
199. Id. Mclver also addressed the idea that placing the unit on the car itself was a search, but still focused on public exposure. Id. at 1126. The undercarriage of the car was publicly exposed and thus no reasonable expectation of privacy existed. Id.
200. *11 (D. Mass. Nov. 10, 2010) (finding that installation occurring on a public street did not require a warrant).
201. See supra notes 188-90 and accompanying text.
202. McIver, 186 F.3d at 1126.
203. 605 F.3d 604 (8th Cir. 2010).
204. Id. at 607. The court held that the appellant did not have standing to bring the suppression motion, but nonetheless spoke about the Fourth Amendment implications of the GPS device.
205. Id. at 609-10.
206. Id. at 610. The U.S. District Court for the Western District of Kentucky recently agreed that a placement on a public street was not invalid, but that "[a]n entirely different conclusion might have resulted if⋯ the officers had unlawfully trespassed onto private property to attach the devices." United States v. Williams, 650 F. Supp. 2d 633, 668 (W.D. Ky. 2009).
207. 591 F.3d 1212 (9th Cir. 2010), petition for cert, filed, (U.S. Nov. 10, 2010) (No. 10-7515).
208. Id. at 1215.
209. Id. at 1213.
210. Id. at 1215. Not all the circuit judges agreed with this reasoning in considering the petition for a rehearing en banc. See United States v. Pineda-Moreno, 617 F.3d 1120, 1121-26 (9th Cir. 2010) (Kozinski, J., dissenting) (arguing that the denial for rehearing en banc was inappropriate).
211. Pineda-Moreno, 591 F.3d at 1215.
212. Id. (finding that the defendant had not put up "special features" like a wall or signs to reasonably preserve his privacy). This disregard for the curtilage has been challenged on appeal. See Petition for Writ of Certiorari, supra note 4, at 21-24. Professor Kerr has also questioned its validity. Orin Kerr, Petition for Certiorari Filed in Pineda-Moreno, The Ninth Circuit GPS Case, THE VOLOKH CONSPIRACY (NOV. 22, 2010, 3:00 PM), http://volokh.com/2010/11/22/petition-for-certiorari-filed-in-pineda-moreno- ninth-circuit-gps-case/ ("The government's concession [that the driveway was a part of the curtilage] should have lost the case for them, and the Ninth Circuit was wrong to bend over backwards to undo the concession.")- However, Professor Kerr also notes that courts do not typically consider the driveway within the curtilage, which may have affected this court's decision. Id.
213. See Silverman v. United States, 365 U.S. 505, 509-12 (1961); United States v. Shovea, 580 F.2d 1382, 1387 (10th Cir. 1978); United States v. Moore, 562 F.2d 106, 111 (1st Cir. 1977). These cases precede Knotts and Karo, but failed to explicitly address the issue of installation. See supra Part I.D.I.
214. See supra notes 104-07 and accompanying text.
215. United States v. Knotts, 460 U.S. 276, 285-86 (1983) (Brennan, J., concurring).
216. 365 U.S. 505 (1961).
217. Knotts, 460 U.S. at 286 (Brennan, J. concurring) (citing Silverman, 365 U.S. at 509-12).
218. Silverman, 365 U.S. at 509. The Court later noted that, "the officers overheard the petitioners' conversations only by usurping part of the petitioners' house or office ⋯ a usurpation that was effected without their knowledge and without their consent."
219. Id. at 511.
220. Id. at 512 (calling the placement of the microphone an "actual intrusion into a constitutionally protected area"). The Fourth Amendment still protects such property interests post-Katz. See supra notes 96-98 and accompanying text.
221. Knotts, 460 U.S. at 286 (Brennan, J., concurring).
222. 580 F.2d 1382 (10th Cir. 1978).
223. Id. at 1387.
224. Id. Other courts have suggested that the minimal invasiveness of the attachment of the device did not warrant special protection. See, e.g., United States v. Burton, 698 F. Supp. 2d 1303, 1307-08 (N.D. Fla. 2010) (discussing Knotts, but not addressing Silverman).
225. Shovea, 580 F.2d at 1387. The court in United States v. Moore, 562 F.2d 106, 112-13 (1st Cir. 1977), also suggested that an installation could be a search, but failed to reach the question since it found probable cause for the installation.
226. United States v. Michael, 645 F.2d 252, 257 (5th Cir. May 1981). Reasonable suspicion is a lower threshold than probable cause. Compare BLACK'S LAW DICTIONARY 1385 (9th ed. 2009) (defining the term as "[a] particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity"), with supra note 69 and accompanying text.
227. United States v. Jones, 625 F.3d 766, 770-71 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (denying rehearing en banc).
228. See Arizona v. Gant, 129 S. Ct. 1710, 1720 (2009); Delaware v. Prouse, 440 U.S. 648, 663 (1979) ("[P]eople are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles." (citing Adams v. Williams, 407 U.S. 143, 146(1972)))
229. Silverman v. United States, 365 U.S. 505, 510-12 (1961); see also Jones, 625 F.3d at 770-71 (Kavanaugh, J., dissenting) (denying rehearing en banc).
230. Some argue that the installation of the GPS device constitutes a Fourth Amendment seizure when it interferes with the possessory interests of the individual's vehicle. See United States v. Mclver, 186 F.3d 1119, 1133-34 (9th Cir. 1999) (Kleinfeld, J., concurring); Commonwealth v. Connolly, 913 N.E.2d 356, 369 (Mass. 2009) (finding a seizure under the Massachusetts Constitution where installation required opening the car and utilizing its electrical system).
231. Compare United States v. Maynard, 615 F.3d 544, 556 (D.C. Cir.) (highlighting the differences between the technologies), reh g denied, 625 F.3d 766 (D.C. Cir.), cert, denied, 131 S. Ct. 671 (2010), with United States v. Pineda-Moreno, 591 F.3d 1212, 1216 (9th Cir.) (applying the Knotts beeper device analysis to GPS units), reh'g denied, 617 F.3d 1120 (9th Cir. 2010), petition for cert, filed, (U.S. Nov. 10, 2010) (No. 10-7515).
232. 615 F.3d 544 (D.C. Cir.), reh'g denied, 625 F.3d 766 (D.C. Cir.), cert, denied, 131 S. Ct. 671 (2010).
233. Id. at 557; United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007).
234. See supra Part I.C.3.
235. The analyses are very similar in their focus to that of Karo and Knotts. See supra Part I.D.2.
236. Pineda-Moreno, 591 F.3d at 1216; Garcia, 474 F.3d at 996; see supra notes 162-64 and accompanying text.
237. 474 F.3d 994 (7th Cir. 2007).
238. Id. at 996; see also Recent Case, supra note 35, at 2231-32 ("[The decision] relied heavily on the Supreme Court's consistent indication that there could be no reasonable expectation of privacy in activities that were publicly observable.").
239. *8 (D. Mass. Nov. 10, 2010) (holding that public roads do not provide drivers with any reasonable expectation of privacy).
240. See Pineda-Moreno, 591 F.3d at 1216; Garcia, 474 F.3d at 996.
241. See supra Part I.C.3.b.
242. *3 (M.D. Pa. July 27, 2010) (holding that the use of GPS to overcome the impracticality of constant surveillance was immaterial).
243. See Garcia, 474 F.3d at 997.
244. See id. at 998; see also Pineda-Moreno, 591 F.3d at 1216.
245. See supra notes 121-22 and accompanying text.
246. See supra notes 167-68 and accompanying text.
247. See supra Part I.C.3.C (discussing this consideration).
248. See Recent Case, supra note 35, at 2233 (discussing the Seventh Circuit's focus on what is and is not public information); see also Hutchins, supra note 93, at 1199 (noting the Court's emphasis on the type of information obtained by new technology).
249. See supra notes 132-33 and accompanying text.
250. United States v. Mclver, 186 F.3d 1119, 1125 (9th Cir. 1999). This application of prior precedent to new, potentially more intrusive technologies has been criticized as ineffective. See Hutchins, supra note 93, at 1187-88 (arguing that intrusiveness of the type and quantity of information should be considered as opposed to reflexively applying precedent only dealing with less intrusive technology).
251. See, e.g., United States v. Garcia, 474 F.3d 994, 997 (7th Cir. 2007).
252. See id. ("The only difference is that in the imaging case nothing touches the vehicle ⋯. But it is a distinction without any practical difference.").
253. See United States v. Pineda-Moreno, 591 F.3d 1212, 1216-17 (9th Cir.), reh'g denied, 617 F.3d 1120 (9th Cir. 2010), petition for cert, filed, (U.S. Nov. 10, 2010) (No. 10-7515). The Court distinguished Kyllo because it provided information about the home that was otherwise unobtainable without a warrant. Id. at 1216. The fact that the GPS technology was new and not readily available to the public made no difference since the type of information obtained was the same.
254. Id.
255. Id.
256. Garcia, 474 F.3d at 997.
257. No. 10-10067-WGY, 2010 WL 4595522 (D. Mass. Nov. 10, 2010).
258. *8.
259. *7-8.
260. *8 ("Although the continuous monitoring may capture quantitatively more information than brief stints of surveillance, the type of information collected is qualitatively the same."); see also Jallad, supra note 46, at 367-68 (asserting that the GPS's ability to collect large amounts of data does not indicate a larger intrusion than more primitive tracking devices when all the information is public information).
261. See supra Part II.B.I.e.
262. 605 F.3d 604 (8th Cir. 2010).
263. Id. at 609.
264. Id. at 609-10.
265. Id. at 609 ("A person traveling via automobile on public streets has no reasonable expectation of privacy in his movements from one locale to another." (citing United States v. Knotts, 460 U.S. 276, 281 (1983))).
266. Id. at 610 (emphasizing the limited nature of the search).
267. Id. at 609-10 (distinguishing between information obtained by electronic surveillance in the home and in public as opposed to distinguishing between information obtained by physical and electronic surveillance).
268. Id.
269. Reasonable suspicion may have played a role in the Seventh and Ninth Circuits as well. See United States v. Pineda-Moreno, 591 F.3d 1212, 1217 n.3 (9th Cir.) (refusing to determine whether police had reasonable suspicion because there was no search), reh'g denied, 617 F.3d 1120 (9th Cir. 2010), petition for cert, filed, (U.S. Nov. 10, 2010) (No. 10-7515); United States v. Garcia, 474 F.3d 994, 996 (7th Cir. 2007) (stating that the district court found that there was reasonable suspicion for the GPS monitoring, but that the circuit court found this was not necessary).
270. * (D.C. Cir.) (noting that police had had a warrant to install the GPS, but it had expired), reh'g denied, 625 F.3d 766 (D.C. Cir.), cert, denied, 131 S. Ct. 671 (2010). A number of state courts have agreed with this finding. See, e.g, Commonwealth v. Connolly, 913 N.E.2d 356, 370-71 (Mass. 2009) (finding warrant issued to be valid);
271. People v. Weaver, 909 N.E.2d 1195, 1201-03 (N.Y. 2009);
272. State v. Campbell, 759 P.2d 1040, 1049 (Or. 1988) (regarding a radio transmitter);
273. State v. Jackson, 76 P.3d 217, 224 (Wash. 2003). Although many of the state courts decided based on their respective state constitutions as opposed to the U.S. Constitution, their analyses are indicative of the issues surrounding the GPS debate.
274. Kerr, supra note 146.
275. See infra Part II.B.3.
276. Maynard, 615 F.3d at 558.
277. Id. at 557.
278. Id. at 558-61 (citing Bond v. United States, 529 U.S. 334, 338-39 (2000); California v. Greenwood, 486 U.S. 35, 40 (1988); California v. Ciraolo, 476 U.S. 207, 213 (1986)).
279. Id. at 558-62.
280. See supra notes 116-17 and accompanying text.
281. Maynard, 615 F.3d at 560.
282. Id.
283. See id. at 563 (recognizing an easier case where monitored activities occurred within the home, but asserting that privacy is not completely given up once an individual leaves the threshold of his home).
284. Id. at 560. The court compared the difference between an undercover agent recording a conversation and a warrantless wiretap.
285. Id. at 566. Although the same information is recorded, in the former method "reasonable expectation of control over personal information would not be defeated; in the latter it would be."
286. Id.
287. Id.
288. see also People v. Weaver, 909 N.E.2d 1195, 1199 (N.Y. 2009) (focusing on the sophisticated nature of the device and the fact that the device now makes it practicable to have constant surveillance, a fact not allowed by the "primitive" Knotts beeper).
289. Maynard, 615 F.3d at 563-64; see also State v. Campbell, 759 P.2d 1040, 1045-1046 (Or. 1988) (analogizing the intrusive GPS surveillance on public streets to a situation where a police officer could take pictures of a living room from the street, but not enter the room).
290. *.
291. See supra notes 129-31 and accompanying text.
292. Maynard, 615 F.3d at 556-68.
293. Id. at 565; see also State v. Jackson, 76 P.3d 217, 222, 231 (Wash. 2003) (requiring a warrant for GPS due in part to the enhancement of police abilities with this device both in surveillance and in volume).
294. Maynard, 615 F.3d at 563-64; see also Jackson, 76 P.3d at 223 (taking into consideration the personal and private nature of the information obtained by GPS tracking).
295. Maynard, 615 F.3d at 562. For a brief discussion of how this prolonged surveillance might also violate the First Amendment right to freedom of association, see Walsh & Dominguez, supra note 29, at 26.
296. Maynard, 615 F.3d at 562 ("A person who knows all of another's travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups - And not just one such fact about a person, but all such facts.").
297. Id. at 562-63; see also Recent Case, supra note 35, at 2234-35 (asserting that courts should look at the intensity, duration, and level of detail of a search in determining reasonable expectations of privacy for new technologies).
298. Maynard, 615 F.3d at 557.
299. United States v. Knotts, 460 U.S. 276, 283-84 (1983).
300. Maynard, 615 F.3d at 557; see also People v. Weaver, 909 N.E.2d 1195, 1199 (N.Y. 2009) (noting that the Knotts beeper was only a small step beyond following a vehicle, while a GPS allows for constant, overwhelming surveillance).
301. Maynard, 615 F3d at 558, 561.
302. Recent Case, supra note 35, at 2235.
303. Maynard, 615 F.3d at 558.
304. Compare id. (monitored constantly for twenty-eight days), with Knotts, 460 U.S. at 279 (monitored intermittently over three days).
305. Maynard, 615 F.3d at 558.
306. Hutchins, supra note 25, at 412 n.3 (stating that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 governs the use of electronic monitoring devices, but does not apply to electronic transmitting devices that trace locations (citing 18 U.S.C. §§ 2510-2513, 2515-2522 (2000 & Supp. IV 2004))).
307. FED. R. CRIM. P. 41(b)(4).
308. Id.
309. Id. 41(e)(2)(C).
310. Id. (allowing for exceptions to the daytime installation rule where police have good cause).
311. HAW. REV. STAT. § 803-42 (2010); MINN. STAT. ANN. §§ 626A.35, 626A.37, 626A.38 (West 2009).
312. FLA. STAT. § 934.42 (2010) (no specification of appropriate timeline); OKLA. STAT. ANN. tit. 13, § 177.6 (Supp. West 2011) (allowing monitoring for up to 60 days without extension); S.C. CODE ANN., § 17-30-140 (Supp. 2009) (no time limit); UTAH CODE ANN. § 77-23a-15.5 (West 2008) (60 days).
313. 18 PA. CONS. STAT. ANN. § 5761 (West 2000 & Supp. 2010).
314. See supra Part I.D.1, notes 209-14 and accompanying text.
315. See supra Part II.A.1.
316. See supra notes 105-07 and accompanying text.
317. This Note would be remiss if it did not comment on the Pineda-Moreno decision's treatment of installation. See supra notes 201-06 and accompanying text. GPS surveillance should not be allowed to undercut the protection already granted to the curtilage. The Supreme Court should at the very least maintain the curtilage protections it has already provided. See supra note 103.
318. See supra Part I.C.1, notes 210-14 and accompanying text.
319. Katz v. United States, 389 U.S. 347, 353 (1967) ("The Government's activities ⋯ violated the privacy upon which he justifiably relied while using the telephone booth ⋯. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.").
320. Id. at 358-59.
321. See supra notes 96-97 and accompanying text; see also Kerr, supra note 97, 822-23. For a discussion of how Katz continues to protect property interests, and how the case may never have shifted the Court's focus from them, see supra notes 91, 96-97 and accompanying text.
322. See supra notes 96-97 and accompanying text; see also Kerr, supra note 97, 822-23 ("Like the hotel guest gaining Fourth Amendment rights in the hotel room during his stay, Katz acquired the owner's privacy rights in the phone booth during the period of his phone call.").
323. See Kerr, supra note 97, at 823.
324. 365 U.S. 505,509 (1961); see supra notes 210-12 and accompanying text.
325. See supra note 212 and accompanying text.
326. See supra notes 215-19 and accompanying text.
327. See supra part I.A.1.
328. See supra Part II.A.2.
329. See supra Part II.A.2.
330. See supra notes 106-07 and accompanying text.
331. See supra Part I.C.2.
332. See supra notes 104-07. Issues may arise around borrowed cars or other insubstantial property interests, but the Court will deal with these standing issues under a different analysis. See supra notes 81-84.
333. See Hutchins, supra note 93, at 1187-88.
334. United States v. Knotts, 460 U.S. 276, 284 (1983) (stating that when "such dragnet-type law enforcement practices" occurred, the court would deal with them).
335. See, e.g., United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010) ("It is imaginable that a police unit could undertake 'wholesale surveillance' ⋯ [which] would raise different concerns than the ones present here."); United States v. Pineda-Moreno, 591 F.3d 1212, 1216 n.2 (9th Cir.) (agreeing that if mass surveillance were to occur, then the Fourth Amendment applications would need to be reevaluated), reh 'g denied, 617 F.3d 1120 (9th Cir. 2010), petition for cert, filed, (U.S. Nov. 10, 2010) (No. 10-7515); United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007) ("Should government someday decide to institute programs of mass surveillance of vehicular movements, it will be time enough to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search.").
336. See supra Parts II.B.l, II.B.2 (discussing these circuits' approaches).
337. Hutchins, supra note 93, at 1187.
338. Blitz, supra note 34, at 1374.
339. See supra notes 33-38 and accompanying text.
340. See supra notes 56-58 and accompanying text.
341. See supra note 177 and accompanying text.
342. See supra notes 24-28 and accompanying text.
343. *2 (M.D. Pa. July 27, 2010) (more than eleven months), and People v. Weaver, 909 N.E.2d 1195, 1195 (N.Y. 2009) (sixty-five days), with United States v. Knotts, 460 U.S. 276, 279 (1983) (three days)
344. Hutchins, supra note 93, at 1187.
345. United States v. Garcia, 474 F.3d 994, 997 (7th Cir. 2007) (stating that the Fourth Amendment must "keep pace with the march of science").
346. See supra Parts I.A.1, I.A.3.
347. See supra Parts II.B.1.c, II.B.1.d, H.B.2.
348. See supra Parts H.B.3.C, II.B.3.d; see also Hutchins, supra note 93, at 1188 (advocating intrusiveness of the technology as the "benchmark" for assessing a search).
349. See supra notes 132-34 (describing the sense augmenting analysis); notes 242-44 (noting that the Seventh and Ninth Circuits applied this analysis).
350. Maclin, supra note 91, at 85. A number of Supreme Court Justices agree. See CLANCY, supra note 66, at 313 n.149 (identifying numerous dissenting opinions in Fourth Amendment cases noting the need to provide protection in the face of advancing and intrusive technology).
351. See supra Part I.A.3; see also Clancy, supra note 88, at 30 (noting that technology has "dramatically increased the government's ability to obtain information").
352. See supra notes 34-37 and accompanying text.
353. See supra note 166 and accompanying text.
354. See supra notes 287-91 and accompanying text.
355. See supra notes 283-86.
356. See supra notes 53-59 and accompanying text.
357. See supra notes 53-59 and accompanying text.
358. See supra Part II.B.3.
359. Recent Case, supra note 35, at 2235.
360. See supra notes 93-95 and accompanying text.
361. See supra note 137 and accompanying text.
362. See supra Part III.B.1.
363. See supra Parts II.B.1.c, II.B.1.d, II.B.2.
364. See supra Parts II.B.1.a, II.B.2.
365. See supra Part II.B.3.a.
366. See supra Part II.B.3.a.
367. See supra note 270 and accompanying text.
368. See supra Part III.B.3.a; see also Koppel, supra note 54, at 1084 (arguing that GPS surveillance goes beyond basic public exposure to a level not anticipated or otherwise tolerated).
369. The movements may technically be in public, but they were previously obscured by the fact that they had to be individually identified and compiled. See supra note 146; see also United States v. Karo, 468 U.S. 705, 716. (1984) (noting a difference between information voluntarily conveyed and secretly obtained within the home).
370. See supra Parts II.B.1.b, II.B.2, II.B.3.b.
371. See supra note 290.
372. See supra notes 71-76 and accompanying text.
373. See discussion infra Part III.C.1.
374. See discussion infra Part III.C.2.
375. See Kerr, supra note 96, at 544.
376. Id.
377. See supra Part II.B.3.
378. See Kerr, supra note 146.
379. See id.
380. See United States v. Jones, 625 F.3d 766, 769 (D.C. Cir. 2010) (Sentelle, J., dissenting) (denying rehearing en banc); Kerr, supra note 146.
381. See supra notes 342-43.
382. See generally Hutchins, supra note 25 (discussing how intrusiveness based on type and quantity of information should be a major factor in determining the constitutionality of GPS searches).
383. See supra Parts III.A, III.B.
384. See supra notes 71-76 and accompanying text.
385. Hutchins, supra note 25, at 444.
386. See supra notes 67-69 and accompanying text.
387. * (D.C. Cir.) (noting that police had had a warrant to install the GPS, but it had expired), reh'g denied, 625 F.3d 766 (D.C. Cir.), cert, denied, 131 S. Ct. 671 (2010); Commonwealth v. Connolly, 913 N.E.2d 356 370-71 (Mass. 2009) (finding warrant issued to be valid); State v. Jackson, 76 P.3d 217, 221 (Wash. 2003) (10-day warrant issued).
388. See supra notes 294-96 and accompanying text.
389. See supra notes 1-16 and accompanying text.
390. See supra note 68.
391. See supra note 68.
392. See supra note 69 and accompanying text.
393. HUBBART, supra note 61, at 75; see supra notes 62-67 and accompanying text.
394. See United States v. Karo, 468 U.S. 705, 718 (1984) ("The argument that a warrant requirement would oblige the Government to obtain warrants in a large number of cases is hardly a compelling argument against the requirement.").
395. See supra Parts III.A, III.B.
396. See supra note 180 and accompanying text. But see, Katz v. United States, 389 U.S. 347, 361 (1967) (addressing electronic surveillance of public areas).
397. See supra notes 129-31 and accompanying text.
398. See Glancy, supra note 22, at 334 (quoting Minnesota v. Carter, 525 U.S. 83, 97 (1998) (Scalia, J., concurring)).
399. See supra Part I.B.1 (discussing the intent of the Fourth Amendment).
400. See Blitz, supra note 34, at 1420 (noting that Congress has more options than judges who must "resolve particular disputes with specified remedies").
401. See supra note 149 and accompanying text.
402. GPS technology has been used by civilians since 1996 and has not yet reached the Supreme Court. See supra notes 30-32. Technology continues to outpace the ability or willingness of the Court to respond.
403. See supra notes 71-76 and accompanying text.
404. See supra Part III.B.
405. See supra Part III.B.2.
406. See supra Part II.C (identifying legislative time frames).
407. See supra note 292; see also Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2513, 2515-2522 (2006); Electronic Communications Privacy Act, 18 U.S.C. §§ 2701-2711 (2006); Kerr, supra note 97, at 855-56 (describing both legislative reactions to Supreme Court decisions and legislative initiatives to protect privacy).
408. Kerr, supra note 97, at 807-08.
409. See Blitz, supra note 34, at 1386 (citing 47 C.F.R. §§ 20.3, 20.18 (2009) (noting that the FCC has also recently required all cell phone manufacturers to install tracking technology in their products to ensure that 911 responders can quickly find individuals).
410. Blitz, supra note 34, at 1420-21; Kerr, supra note 97, at 807-08.