privacy fourth-amendment
Can law enforcement use a GPS tracking device without a warrant?
<p>In 2007, a man named <a href="https://en.wikipedia.org/wiki/United_States_v._Pineda-Moreno" rel="nofollow noreferrer">Juan Pineda-Moreno</a> was suspected of purchasing products to grow Cannabis. Rather than put a GPS tracking device on his car and leaving it, they put several GPS devices on his car throughout a four month investigation. Most of the time his vehicle was on public property, but twice the car was in his driveway, so they entered his property at 4 to 5 in the morning to place it.</p>

<p>I'm aware that in <em>United States v. Jones</em> the Supreme Court ruled that police must obtain a warrant to use GPS devices. However, their conclusion had to do with how long the GPS was attached to Jones' car. In Pineda-Moreno's case, the GPS was used to follow him for short distances. </p>

<p>I cannot find any new information on this case past 2010. Can officers still use a GPS tracking device without a warrent?</p>

<h1>US v. Jones</h1>

<p>The majority opinion in <a href="https://www.supremecourt.gov/opinions/11pdf/10-1259.pdf" rel="nofollow noreferrer">US v. Jones 565 U. S. ____ (2012)</a> , written by Justice Scalia, held that the attachment of the GPS device to the vehicle was a trespass and thus a search. The analysis ended there. It did not even need to reach the issue of how long Jones was monitored (although one of the concurring opinions took that into account).</p>

<blockquote>
  <p><em>Katz</em> did not repudiate the
  understanding that the Fourth Amendment embodies a particular
  concern for government trespass upon the areas it enumerates. The 
  <em>Katz</em> reasonable-expectation-of-privacy test has been added to, but
  not substituted for, the common-law trespassory test.</p>
</blockquote>

<p>This leaves open whether police can attach a GPS device to a car <em>before</em> it is obtained by a defendant and then later use that GPS device to monitor the defendant's movements. Based on the concurrences in Jones there are at least five votes for the principle that long term GPS surveillance is a search (Justices Alito, Ginsburg, Breyer, Kagan, Sotomayor<sup>1</sup>) and at least one vote (Justice Sotomayor) for the principle that <em>any</em> GPS surveillance is a search. The latter holding would require overruling or distinguishing <em>Karo</em> and <em>Knotts</em>, two cases that allowed the placement of a surveillance device into things before the defendant purchased them.<sup>2</sup></p>

<h1>Effect on US v. Pineda-Moreno</h1>

<p>Regarding, US v. Pineda-Moreno, <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2012/08/06/08-30385.pdf" rel="nofollow noreferrer">on remand to the 9th Circuit for consideration in light of <em>Jones</em></a>, the 9th Circuit said:</p>

<blockquote>
  <p>Jones has made clear that the agents conducted Fourth
  Amendment searches when they attached tracking devices to
  Pineda-Moreno’s Jeep and used the devices to monitor the
  Jeep’s movements. Indeed, for purposes of this remand we
  will assume, without deciding, that those warrantless searches
  would be unreasonable under the Fourth Amendment after
  Jones.</p>
  
  <p>But Jones had not been decided when those searches
  occurred. And when the agents attached and used the mobile
  tracking devices that yielded the critical evidence, they did so
  in objectively reasonable reliance on then-binding precedent.</p>
</blockquote>

<p>Relying on <a href="https://www.supremecourt.gov/opinions/boundvolumes/564BV.pdf#page=270" rel="nofollow noreferrer">Davis v. United States, 564 U.S. 229 (2011)</a>, the 9th Circuit declined to suppress the evidence obtained against Pineda-Moreno.</p>

<blockquote>
  <p>Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.</p>
</blockquote>

<hr>

<p><sup>1. While Justice Sotomayor did not join Justice Alito's concurrence, she wrote: "I agree with Justice Alito that,
at the very least, “longer term GPS monitoring in investigations
of most offenses impinges on expectations of
privacy.”"</sup></p>

<p><sup>2. In a pre-Jones <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2010/08/12/08-30385.pdf" rel="nofollow noreferrer">dissent to the denial of a petition for en banc rehearing of US v Pineda-Moreno</a>, Chief Judge Kozinski distinguished Knotts this way: <em>The electronic tracking devices used by the police in this
case have little in common with the [beepers] in
Knotts. [...]
Beepers could help police keep vehicles in view when following
them, or find them when they lost sight of them, but
they still required at least one officer—and usually many
more—to follow the suspect. The modern devices used in
Pineda-Moreno’s case can record the car’s movements without
human intervention—quietly, invisibly, with uncanny precision.</em></sup></p>
