9th Circuit GPS case: Incomplete Coordinates

On August 6, 2012, here, the Ninth Circuit Court of Appeals confirmed a District-wide trend and held that the unconstitutional placement of a GPS tracking device on an individual's car does not result in suppression of the evidence produced by the device.

In 2012, the US Supreme Court held that the placement of such devices without a warrant was a form of trespass and unconstitutional. Prior to this decision, In United States v. Jones, Ninth Circuit case law had held to the contrary: Placing a GPS locator on a car, at least if it was parked in a public area, was not unconstitutional. After the Supremes' decision in Jones, many wondered what would happen to the earlier Ninth Circuit cases that had allowed the warrantless placement of GPS devices. See our earlier post here.

Early indications from the district courts were that, based on another Supreme Court case from 2011, these cases would be upheld on the theory that before they were ruled unconstitutional in Jones, such GPS placements were recognized as lawful under binding Ninth Circuit precedent. Since the police were reasonably relying on the circuit court approval of this practice, the fact that the case law later proved wrong would not be held against the government. Thus, until Jones was decided, evidence derived from the unconstitutional placement of a GPS tracker was not subject to suppression.

While the placement of such devices has been addressed by both the Supremes and now the Ninth Circuit, an easily overlooked challenge has escaped both. Judges and commentators have remarked that the 4th Amendment's proscription against "unreasonable" searches and seizures is implicated not only by how the GPS device is placed, but also in the constant and data-intensive nature of the information revealed once such devices are successfully placed.

While the recent decision seems to have answered for the time being the question of what the courts are to do with Pre-Jones GPS placement issues, it does not address the monitoring issue. Also, as noted in the decision itself, the Supreme Court's decision in Jones may have overruled many other Ninth Circuit cases. Experienced federal criminal defense lawyers have many search and seizure issues to confront in the near future.

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