Does GPS tracking by police amount to an illegal search? October 14, 2006
Posted by Rich in : GPS tracking law , trackbackCYB3RCRIM3, a blog by Susan Brenner, a law professor specializing in cybercrime, has an excellent two-part post on GPS tracking and the fourth amendment (here is a link to part two). This is a complex subject, as you might gather from this snippet:
Putting the device on a vehicle is not, I would submit, a “search” because a search violates a valid 4th Amendment expectation of privacy. The issue that’s coming up in these cases is whether the 4th Amendment is implicated when a tracking device is installed on a “public” area of a vehicle: under a bumper, on the undercarriage, etc. It’s clear that officers cannot go into “private” areas of a vehicle (the trunk, under the hood, inside the passenger compartment, etc.) without having a warrant; that would clearly be a search regardless of whether their motive is to install a tracking device or just to look around (or both). When the devices are installed on areas that are, at least arguably, accessible to the general public, I don’t think we can legitimately characterize the act of installing them as a “search.” After all, what “private” information do the officers obtain by doing so?
I tend to think, though, that the act of installing a tracking device on such a “public” area of a vehicle is a seizure under the 4th Amendment. Seizures occur when agents of the government interfere with someone’s possession and use of their vehicle. Now, when an officer sneaks up to a car at night or at some other time when it is parked and is not being used by the owner and installs a GPS device, there would not seem to be any particular interference with the owner’s possession and use of the property. The owner never even knows what’s happened – that’s the whole point.
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