In 2012, the Supreme Court decided that GPS tracking devices require warrants. Notably, this wasn’t because the GPS data was deserving of Fourth Amendment protections but because officers had to trespass on private property (a car parked in a driveway) to attach the device.
That left law enforcement with a lot a gray area in which to operate. Since there was no distinct finding that GPS data was protected, it could theoretically be harvested from third-party devices without a warrant. The Supreme Court’s decision in the Carpenter case, however, appeared to extend protections to the records themselves. It declared the acquisition of cell site location info requires the use of the warrant, extending Fourth Amendment protections to third party records of people’s movements. It could be argued this decision covers GPS data pulled from third party services, since it’s basically the same thing: gathering records of a person’s movements.
In a recent federal case [PDF], both of these Supreme Court decisions are in play. It appears law enforcement thought it had found a way to route around the Jones decision. Investigating a robbery, detectives approached the dealership that had sold the vehicle spotted at the scene of the crime. The dealership had installed a tracking device to make the car easier to find in case of a repo. This was the data detectives obtained without a warrant.
On March 29, 2017, Hinsdale detectives issued an alert “on multiple databases” seeking information about the Lexus. Id. at 3. On April 4, 2017, a Headers employee told one of the detectives that the Lexus was equipped with a GPS tracking device serviced by Air Assault Asset Track GPS Systems. The Headers employee gave the detective her login credentials for Air Assault’s website and authorized him to access “all the GPS records associated with the Devinn Adams/Lexus RX account.” The GPS records included historical data tracking the Lexus’s “movement and global position.”
Without first obtaining a warrant, the detective downloaded a spreadsheet containing GPS data for the period from March 1, 2017 through April 4, 2017. The spreadsheet sets forth time-stamped entries giving the Lexus’s approximate street address (usually at the block level, such as “5701-5799 S Campbell Ave, Chicago, IL, 60629”) each time it was turned on, approximately every five minutes while it was being driven, and each time it was parked. According to the detective, “[g]reater detail” beyond those approximate street addresses “c[ould] be extracted from the map points” using “the software program that manages the GPS data,” which allowed the detective to “narrow” each recorded location “to specific latitude and longitude way points.”
Tobias Diggs, the alleged driver, moved to suppress the evidence, stating that both the Jones and Carpenter decisions prohibited this information being obtained without a warrant. The government argued that neither decision mattered.
The government responds that acquiring the data was not a Fourth Amendment search because: (1) unlike in Jones, the police made no physical intrusion on the Lexus, Doc. 55 at 10-12; and (2) under the third-party doctrine, Diggs lacked a reasonable expectation of privacy in the data because he voluntarily provided it to the third party (Headers) from which the police obtained it, id. at 5-10.
Wrong, says the court. This is exactly what’s covered by these two decisions.
The GPS data at issue here fits squarely within the scope of the reasonable expectation of privacy identified by the Jones concurrences and reaffirmed in Carpenter. The GPS data provide “a precise, comprehensive record of [Diggs’s] public movements” over the course of a month.
It goes on to point out the data collected here is pretty much indistinguishable from the data at the heart of the Carpenter decision.
Applying the third-party doctrine to the GPS data here would require essentially the same extension of the doctrine that the Court rejected in Carpenter. Carpenter understood CSLI to present “many of the qualities of the GPS monitoring … considered in Jones”—both are “detailed, encyclopedic, and effortlessly compiled”; both “provide an intimate window into a person’s life”; and, in the context of historical information, both provide a “tracking capacity [that] runs against everyone” without any need for the police to “know in advance whether they want to follow a particular individual, or when.” Indeed, at the time of the search in Carpenter, CSLI was still “less precise than GPS information.” Accordingly, Carpenter compels the conclusion that, given the privacy concerns implicated by the “detailed and comprehensive record of [Diggs’s] movements” captured by the Lexus’s GPS tracker, “the fact that the [police] obtained the information from a third party does not overcome [Diggs’s] claim to Fourth Amendment protection.”
The government also tried to get the good faith exception applied. Given that this search occurred prior to the Carpenter decision, the government says the detectives had no reason to believe a warrant was needed. The court disagrees. The government can point to no prior cases specifically authorizing this sort of warrantless search. But more importantly, it reiterates that the Carpenter decision can — and should — be applied retroactively.
The Supreme Court could have described what it was doing in Carpenter, not as declining to extend the third-party doctrine to a context not addressed in Smith and Miller, but as partially scaling back the once-categorical doctrine to account for “the seismic shifts in digital technology” that gave rise to widespread, long-term location tracking. 138 S. Ct. at 2219. Had it done so, the Davis good-faith exception might very well have applied here. […] But instead, the Court said that the third-party doctrine was never broad enough to encompass technology-enabled long-term location tracking in the first place.
Carpenter thus teaches that general statements of the third-party doctrine uttered in pre-Carpenter decisions not only do not cover CSLI, but never did. And as noted above, what Carpenter said about the third-party doctrine as to CSLI applies with full force to GPS data. It follows that for the Davis good-faith exception to apply to the GPS search here, the government needs more than general statements of the third-party doctrine in a binding appellate decision issued before the search; rather, the government must point to binding appellate precedent applying the doctrine to long-term historical GPS data or its equivalent.
The government loses the GPS data evidence. And it may lose even more than that if any of its other evidence was derived from this unlawful acquisition of data, which possibly includes DNA samples and social media records.
Not every court has read the Carpenter decision as retroactive, but this court’s opinion makes really good points about why it should be read that way in all instances. The Third Party Doctrine was altered significantly by this decision, even if it only dealt with cell site location info. It has changed the contours of what can be considered a “reasonable” search of records held by third parties. Location info is only the beginning. The court’s extension of this protection to third-party GPS records sends a message to law enforcement that the stuff they did for the last 40 years (thanks to Smith v. Maryland) may no longer survive a suppression challenge.
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