Thompson v. Wilson: Continuous GPS Tracking of Commercial Lobster Vessels Upheld as a Reasonable Administrative Search Under the Burger Framework

I. Introduction

The First Circuit’s decision in Thompson v. Wilson, No. 25‑1007 (1st Cir. Nov. 18, 2025), marks an important development at the intersection of environmental regulation, digital surveillance, and Fourth Amendment doctrine. The court held that Maine’s requirement that federally permitted commercial lobstermen install GPS-based vessel trackers—operating continuously whenever the vessel is in the water—constitutes a reasonable warrantless administrative search under the “closely regulated industry” exception articulated in New York v. Burger, 482 U.S. 691 (1987).

The opinion answers several pressing questions:

• How does the Burger test operate after the Supreme Court’s decision in City of Los Angeles v. Patel, 576 U.S. 409 (2015)?
• Can continuous, minute-by-minute GPS tracking of commercial vessels be justified under the administrative search doctrine?
• Is there a “free-standing” Fourth Amendment reasonableness inquiry beyond the Burger test in the closely regulated industry context?
• To what extent can litigants repudiate key concessions on appeal, especially those that shape the constitutional framework applied?

The First Circuit ultimately affirms dismissal of the lobsterman’s Fourth Amendment challenge at the Rule 12(b)(6) stage, concluding that:

• Commercial lobstering (here, by concession) is a “closely regulated industry”;
• There is no additional, free-floating “reasonableness” balancing separate from the Burger framework;
• The Maine Department of Marine Resources’ (MDMR) GPS tracking regime satisfies all three prongs of the Burger test; and
• The plaintiff cannot, on appeal, repudiate his express concession below that lobstering is closely regulated.

While constrained by the plaintiff’s concession that lobstering is a closely regulated industry, the case still sets a significant precedent: it legitimizes continuous GPS tracking of commercial fishing vessels as a permissible administrative search, clarifies the meaning of “necessity” under Burger's second prong, and rejects attempts to graft a least‑restrictive‑means or separate “originalist” reasonableness test onto the Burger framework.

II. Background and Procedural History

A. Regulatory and Factual Background

The case arises out of a complex cooperative federal–state scheme to manage and conserve Atlantic coastal fishery resources, especially the American lobster and the endangered North Atlantic right whale.

1. Dual federal–state jurisdiction over fisheries
   
   • States like Maine regulate fisheries within their territorial waters (generally up to 3 nautical miles from shore). See Me. Stat. tit. 12, § 6001(6).
   • The federal government, through the National Marine Fisheries Service (NMFS), regulates from the outer edge of state waters out to 200 nautical miles—the “exclusive economic zone” (EEZ). See 16 U.S.C. §§ 1801(b), 1802(11).
2. The Atlantic States Marine Fisheries Commission (ASMFC)
   
   • Fifteen Atlantic states and D.C. jointly regulate coastal fisheries through the ASMFC.
   • Federal law encourages the ASMFC to adopt binding fishery management plans (FMPs) that member states must “implement and enforce.” See 16 U.S.C. §§ 5101, 5102(3), 5104(b)(1).
   • Maine participates in ASMFC via three representatives, including the MDMR Commissioner. Me. Stat. tit. 12, § 4652.
3. Addendum XXIX to the American Lobster FMP
   In March 2022, the ASMFC adopted:

   “Addendum XXIX to Amendment 3 to the American Lobster Fishery Plan; Addendum IV to the Jonah Crab Fishery Management Plan.”

   The Addendum’s main goals:
   • Reduce the risk of North Atlantic right whale entanglement in fishing lines;
   • Improve data for fishery management and stock assessment;
   • Support the development of offshore renewable energy; and
   • Improve offshore enforcement and management in the EEZ.
   To further those aims, the Addendum requires member states to:
   • Mandate that federally permitted lobstermen install electronic tracking devices on their vessels;
   • Require that devices:
     • Use GPS
     • “Ping” (report location) at least once per minute
     • Remain powered and transmit data at all times when the vessel is in the water—including when docked or used for personal, non‑fishing purposes.
4. Maine’s implementing Rule: MDMR Rule § 98
   Maine complied by promulgating 13‑188 C.M.R. ch. 25, § 98 on September 13, 2023. The Rule:
   • Makes it unlawful for any federally permitted lobsterman to:
     • Fish or possess lobsters without an approved GPS tracking device aboard;
     • Remove or tamper with the device without MDMR approval;
     • Operate the vessel without the device installed and powered whenever the vessel is in the water (with specific power-source rules for docked vs operating vessels).
   • Tracks location at a one-minute interval (ping rate) via devices such as “Particle TrackerOne.”
   • Does not itself specify penalties; Maine represented that violations would be treated like other MDMR violations, i.e., civil fines (minimum $100) and potential license suspension.

B. The Lawsuit and District Court Decision

Frank Thompson and several Maine lobstermen sued the MDMR Commissioner in his official capacity, seeking to enjoin the Rule and declare it unconstitutional. They asserted three claims:

1. A Fourth Amendment claim (incorporated via the Fourteenth Amendment) alleging that compulsory, continuous GPS tracking is an unreasonable search;
2. Equal protection claims under the U.S. and Maine Constitutions;
3. A state administrative law claim that the Rule was arbitrary and capricious under the Maine Administrative Procedure Act.

Maine moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court:

• Granted the motion in full; and
• On the Fourth Amendment claim, held that the Rule was not “gratuitously invasive of lobstermen’s personal privacy” and thus did not state a claim under then-existing Fourth Amendment precedent.

Crucially, in reaching that result, the district court noted four concessions by the parties:

1. Maine conceded that mandatory GPS tracking under the Rule constitutes a “search” under the Fourth Amendment.
2. Thompson and co-plaintiffs conceded that the lobster fishery is a “closely regulated industry.”
3. Both sides agreed that the Rule creates an “administrative search” regime (i.e., a regulatory search, not primarily aimed at criminal law enforcement).
4. Both sides agreed that Maine has a substantial interest in regulating and ensuring the long-term viability of the lobster fishery.

The district court explicitly invited an appeal to obtain an “authoritative ruling” on the Fourth Amendment question, and Thompson alone appealed, limiting the case on appeal to the Fourth Amendment claim.

III. Summary of the First Circuit’s Opinion

Reviewing de novo, the First Circuit affirms the dismissal of the Fourth Amendment claim. The court structures the appeal around three arguments raised by Thompson:

1. That the Rule is unreasonable under the Fourth Amendment regardless of any exception – i.e., that even if Burger applies, there must be a separate “reasonableness” analysis keyed to the Amendment’s original meaning and historical analogues.
2. That the Rule fails the Burger test, particularly prongs two (necessity of warrantless inspections) and three (adequate substitute for a warrant).
3. That lobstering is not in fact a “closely regulated industry,” and thus the Burger exception is inapplicable.

The First Circuit’s main holdings are:

• Concession binding on appeal: Thompson cannot repudiate his explicit concession that lobstering is a closely regulated industry. The court refuses to apply the narrow exception to the raise‑or‑waive rule to a deliberate concession.
• No “freestanding” reasonableness test beyond Burger: In the context of administrative searches of closely regulated industries, reasonableness under the Fourth Amendment is fully captured by the Burger test. If a regulatory scheme satisfies Burger, no additional, separate balancing or originalist historical-analogue test is required.
• Burger prong two (necessity): The court interprets “necessity” as asking whether warrantless inspections are necessary to make the regulatory scheme effective, not whether the particular method of search is the least intrusive means to achieve the government’s substantive goal. Patel did not transform prong two into a least‑restrictive‑means or strict‑scrutiny test.
• Burger prong three (adequate substitute for a warrant): The continuous GPS-tracking regime—limited to the vessel’s time and location while in the water, using non-discretionary, automated devices—satisfies the requirement that the scheme provide a constitutionally adequate substitute for a warrant. The scope is narrow (only location/time) and the “timing” limitation is effectively defined by the vessel’s presence on the water, which is contextually reasonable for a fishing regulation.

Thus, the Rule is a permissible warrantless administrative search of a closely regulated industry, and the complaint fails to state a plausible Fourth Amendment claim.

IV. Detailed Analysis

A. Precedents and Doctrinal Building Blocks

1. The Fourth Amendment & Administrative Searches

The Fourth Amendment prohibits “unreasonable searches and seizures” and conditions the issuance of warrants on probable cause. The default rule, as reaffirmed in cases such as Arizona v. Gant, 556 U.S. 332 (2009), and City of Los Angeles v. Patel, is that warrantless searches are “per se unreasonable,” subject to “a few specifically established and well-delineated exceptions.”

One of those exceptions is the “administrative search” or “special needs” doctrine: when the primary purpose of a search is not ordinary criminal law enforcement but some regulatory or administrative objective (for example, workplace safety or regulatory compliance), certain warrantless searches may be reasonable. See Patel, 576 U.S. at 420.

2. Closely Regulated Industries and the Burger Test

Within the broader administrative search context sits a more specific and narrower doctrine: the closely regulated industry exception, articulated in New York v. Burger, 482 U.S. 691 (1987), and applied to contexts such as:

• Auto junkyards (Burger itself),
• OSHA inspections of workplaces (Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978)),
• Commercial trucking (United States v. Maldonado, 356 F.3d 130 (1st Cir. 2004); other circuits similarly).

Under Burger, a warrantless inspection regime in a closely regulated industry is “reasonable” (and thus constitutional) provided three criteria are met:

1. There is a substantial government interest informing the regulatory scheme;
2. Warrantless inspections are necessary to further that scheme (i.e., to make it workable); and
3. The regulatory regime provides a constitutionally adequate substitute for a warrant—by giving notice and limiting inspection discretion in time, place, and scope.

The First Circuit and other courts have consistently treated satisfaction of the Burger test as the measure of Fourth Amendment reasonableness in this context. See:

• Rivera‑Corraliza v. Morales, 794 F.3d 208 (1st Cir. 2015) (describing the Burger test as a “carefully-drawn screen” for reasonableness);
• Tart v. Massachusetts, 949 F.2d 490 (1st Cir. 1991) (upholding fishery inspections under Burger);
• United States v. Maldonado, 356 F.3d 130 (1st Cir. 2004) (applying Burger to commercial truck inspections and declaring them “constitutionally permissible” upon satisfying the three criteria);
• Owner-Operator Indep. Drivers Ass’n v. U.S. Dep’t of Transp., 840 F.3d 879 (7th Cir. 2016) (upholding electronic logging devices for commercial truckers under Burger and calling it a “three-part reasonableness test”).

3. Patel and the Question of “Necessity”

City of Los Angeles v. Patel is central to Thompson’s arguments. In Patel, the Supreme Court considered a facial challenge to a Los Angeles ordinance requiring hotel operators to make guest registries immediately available to police upon request, with no opportunity for precompliance review.

The Court held:

• The searches were administrative (not traditional criminal investigations) and failed because they provided no opportunity for precompliance review before a neutral decisionmaker;
• Hotels are not part of a “closely regulated industry,” so the Burger exception did not apply;
• Even if Burger applied, the ordinance would fail prongs two and three: warrantless surprise inspections of registries were not shown to be necessary, and the scheme did not provide an adequate warrant substitute.

Importantly, Patel discusses necessity in prong two by focusing on whether warrantless surprise inspections are needed to make the regulatory regime effective. Because officers could obtain ex parte warrants quickly and still preserve surprise, warrantless access upon demand was not “necessary.”

Justice Scalia’s dissent accused the majority of “importing a least‑restrictive‑means test into Burger’s Fourth Amendment framework.” Thompson seizes on that characterization and argues that, post‑Patel, prong two should function like strict scrutiny: the government must show that the precise method of search is the least restrictive way to achieve its goal.

4. Maritime Context and Warrantless Searches

The court situates this case within a rich body of precedent recognizing special considerations for searches at sea:

• United States v. Villamonte‑Marquez, 462 U.S. 579 (1983) (permitting warrantless boarding and document checks of vessels);
• United States v. Kaiyo Maru No. 53, 699 F.2d 989 (9th Cir. 1983) (upholding fisheries enforcement searches at sea);
• Lovgren v. Byrne, 787 F.2d 857 (3d Cir. 1986) (similar recognition of maritime enforcement needs).

These cases underscore that effective regulation and enforcement at sea are especially dependent on flexibility and surprise, supporting the “necessity” of warrantless mechanisms for some types of vessel oversight.

B. The Court’s Treatment of the “Closely Regulated Industry” Concession

Thompson attempts on appeal to withdraw his concession that lobstering is a closely regulated industry, because that concession triggers the Burger framework and dramatically raises the bar for his Fourth Amendment claim.

He asks the First Circuit to apply a narrow exception to the “raise‑or‑waive” rule, citing United States v. La Guardia, 902 F.2d 1010 (1st Cir. 1990), and related cases. Those factors typically look to whether:

1. The new issue is purely legal;
2. It is certain to recur in other cases;
3. It can be resolved on the existing record; and
4. It presents a constitutional question of significant magnitude.

Maine responds that these exceptions address omitted arguments, not express concessions. The First Circuit agrees, relying on a line of cases refusing to allow parties to repudiate deliberate concessions on appeal:

• Baker v. Smith & Wesson, Inc., 40 F.4th 43 (1st Cir. 2022);
• United States v. Miranda‑Carmona, 999 F.3d 762 (1st Cir. 2021);
• Alaniz v. Bay Promo, LLC, 143 F.4th 18 (1st Cir. 2025) (quoting United States v. Gates, 709 F.3d 58 (1st Cir. 2013), warning against “agreeable acquiescence to perceivable error as a weapon of appellate advocacy”).

The court emphasizes:

• It “denies with near religious fervor” attempts to repudiate concessions on appeal.
• Even under its narrow discretion to consider new arguments, this is not the kind of “exceptional case” justifying review of a conceded point.

Thus, the panel “proceeds, as the district court did, with the understanding that lobstering is a closely‑regulated industry.” This framing effectively locks in the Burger framework and sharply limits the arguments Thompson can credibly raise.

C. No Free-Standing Reasonableness Analysis Beyond Burger

Thompson next advances a structural argument: even if the closely regulated industry doctrine applies, the Fourth Amendment’s text still requires the government to show its search is “reasonable” in the sense of:

• Aligning with the original public meaning of “unreasonable searches,” and
• Having a historical analogue (he gestures toward the British “writs of assistance” as a negative analogue).

He contends that the Burger test is not an exception to the reasonableness requirement; instead, he insists that after applying Burger one must still conduct a separate balancing test or historical inquiry to ensure the search is not inherently unreasonable.

The court firmly rejects this theory:

• Text and precedent: The Supreme Court has consistently framed the Burger criteria as the measure of reasonableness for administrative searches in closely regulated industries. If the three prongs are met, the search “will be deemed to be reasonable” under the Fourth Amendment. See Burger, 482 U.S. at 702–03; Patel, 576 U.S. at 426.
• 1st Circuit precedent: Prior First Circuit cases (e.g., Maldonado, Tart, Rivera‑Corraliza) uniformly treat Burger as the controlling framework for reasonableness in this setting. Other circuits (e.g., Ninth in Killgore v. City of South El Monte, 3 F.4th 1186 (9th Cir. 2021); Seventh in Owner‑Operator) have done the same.
• Misreading of language in Rivera‑Corraliza: Thompson relies on a sentence warning that “the Constitution okays warrantless searches in some situations, [but] it never okays unreasonable ones.” The court explains that this was not meant as a call for a separate test; the very next sentence describes the Burger framework as the “carefully-drawn screen” safeguarding reasonableness in this context.

In short, for administrative searches in closely regulated industries, there is no additional layer of generalized “reasonableness” balancing or historical matching once Burger is satisfied. The Burger test is the reasonableness inquiry.

D. Application of the Burger Test to Maine’s GPS Tracking Rule

Because the parties already agreed that Maine has a substantial interest in regulating and conserving the lobster fishery, the court focuses on prongs two and three.

1. Prong Two – Are Warrantless Searches “Necessary” to Further the Regulatory Scheme?

Thompson interprets “necessary” to mean that the government must demonstrate the Rule is strictly indispensable to its ultimate goals (conservation, right whale protection, data quality). From that perspective, he argues, Maine has not shown that 24/7 tracking at a one-minute ping rate is the least restrictive means:

• Could it not track only when vessels are fishing in federal waters?
• Could it not use a slower ping rate?
• Could it not rely on less intrusive reporting mechanisms?

The court finds this approach “flops” for several reasons:

• Prong two focuses on warrantlessness, not on fine-grained tailoring: Citing Patel, Burger, Rivera‑Corraliza, and post‑Patel cases such as Johnson v. Smith, 104 F.4th 153 (10th Cir. 2024), the court explains that the key question is whether warrantless inspections are necessary for the regulatory scheme to function effectively—not whether the precise method is the least intrusive option.
• What Patel actually did: In Patel, the Court asked whether surprise inspections without warrants were needed; it concluded that surprise could still be achieved via ex parte warrants. It did not scrutinize the specific mechanism (in-person demands versus other means of obtaining guest logs) as a least‑restrictive‑means inquiry.
• Inconsistency in Thompson’s position: His proposed alternatives—limiting tracking to fishing times or zones, altering ping rates, or using self-reporting—are all still warrantless searches. They do not contest the necessity of warrantlessness itself, but simply prefer a different flavor of warrantless surveillance.
• Functional necessity at sea: Given the mobile nature of fishing, enforcement and data accuracy at sea historically rely on surprise and flexible enforcement. Continuous automated tracking yields accurate and tamper-resistant location data that both:
  • Supports stock assessment and fishery management; and
  • Assists federal whale protection measures and other offshore regulatory regimes.
  The court notes that alternative schemes requiring users to turn devices on and off, or rely on self-reporting, could skew or corrupt data and undermine the regime’s effectiveness.

The court crystallizes its doctrinal clarification:

“A warrantless search must be necessary to satisfy the substantial government interest, but the method of conducting such a search need only reasonably serve or advance that interest.”

On this understanding, because an effective vessel-tracking regime at sea depends on warrantless mechanisms—something well-supported by maritime enforcement cases—the Rule satisfies prong two.

2. Prong Three – Does the Program Provide an Adequate Substitute for a Warrant?

Prong three requires the inspection program, “in terms of the certainty and regularity of its application,” to provide a constitutionally adequate substitute for a warrant. This has two aspects:

1. Notice to the regulated party; and
2. Limits on discretion (time, place, and scope), sufficient to prevent arbitrary, exploratory searches.

Here, some features are novel:

• The “search” is not a sporadic physical inspection but continuous GPS-based data collection whenever the vessel is in the water;
• There is no human inspector deciding when to search; the device operates automatically.

Thompson therefore argues that:

• The Rule functions like an impermissible “general warrant” because it is temporally and spatially expansive—what he calls a “perpetual, technology-driven, and omnipresent search.”

The court disagrees, reasoning as follows:

• Notice: The Rule clearly specifies which vessels are covered (federally permitted lobstermen), what is required (installation and operation of approved GPS trackers), and under what conditions (whenever the vessel is in water). There is no surprise; the regulatory obligation itself provides notice.
• Discretion: There is no individual officer discretion about when, where, or how to search:
  • The device runs automatically whenever the vessel is in the water;
  • The search is triggered by the vessel’s location (in-water status), not by officer judgment;
  • Thus, the Rule is, in a sense, less discretionary than traditional inspection regimes (Burger, Tart) involving on-the-spot choices by inspectors.
• Temporal limits in context: The First Circuit emphasizes that time limits must be understood in context. In Rivera‑Corraliza and cases involving commercial trucks, courts have sustained regimes without traditional “business hour” limits because:
  • Trucks operate 24/7; limiting inspections to daytime would encourage evasion by night;
  • Similarly, lobstermen may fish at any hour subject to limited statutory constraints; enforcement that tracks activity only at arbitrary hours would be unworkable.
  Here, the functional time limit is: whenever the vessel is in the water. Because lobsters can be caught only in the water, and illegal fishing can occur at any time, that temporal rule is contextually reasonable and sufficiently determinate to function as a warrant substitute.
• Scope of information: The Rule authorizes the collection only of:
  • Spatial data (latitude/longitude); and
  • Temporal data (timestamp of pings, once per minute).
  It does not authorize:
  • Audio or video recording;
  • Inspection of personal effects or communications;
  • Broader physical searches of the vessel.
  The narrowness of the data type distinguishes the regime from a true “general warrant.”

Relying in part on Owner-Operator Indep. Drivers Ass’n (sustaining electronic logging devices that collect limited data about commercial driving), the court concludes that the Rule’s scope and triggering conditions are specific and circumscribed enough to satisfy prong three.

The court also notes, pointedly, that objections drawn from Carpenter v. United States, 585 U.S. 296 (2018), and similar “advanced technology” cases are misplaced:

• Those are criminal cases involving law enforcement efforts to obtain data (e.g., cell-site location) from third parties;
• Here, the regime is administrative and regulatory, applies to commercial operators in a closely regulated industry, and uses government-mandated devices, not third-party subpoenaed records.

Taken together, the Rule’s design—a continuous but narrow, non-discretionary GPS tracking system tied to the vessel’s in-water status—provides sufficient certainty, notice, and limitation to operate as an adequate warrant substitute.

E. Complex Concepts Simplified

1. What Is a “Closely Regulated Industry”?

A “closely regulated industry” is a business sector that has historically been subject to detailed governmental oversight and licensing to such a degree that:

• Participants are deemed to have a reduced expectation of privacy in their commercial premises or operations;
• They can reasonably anticipate regulatory inspections and information demands.

Examples include:

• Liquor sales;
• Firearms dealing;
• Mining and explosives;
• Automobile salvage yards;
• Commercial trucking (to an extent).

Here, the court assumes, based on the plaintiff’s concession, that commercial lobstering falls into this category because:

• It involves scarce public resources (fishery stocks) in a shared ecosystem;
• It has long been heavily regulated at both state and federal levels (licenses, seasons, gear restrictions, limits, reporting);
• The regulatory context is pervasive and longstanding.

2. Administrative Searches vs. Criminal Searches

Administrative searches are designed to advance regulatory goals (e.g., safety, environmental quality, resource conservation) rather than to investigate or prosecute specific crimes. They may be conducted by:

• Regulatory inspectors (e.g., OSHA, environmental agencies), or
• Police acting under a regulatory mandate (e.g., inspections for licensing compliance).

While still constrained by the Fourth Amendment, administrative searches may operate under relaxed standards when:

• The privacy expectations are reduced (commercial premises versus homes);
• The industry is pervasively regulated; and
• The search scheme satisfies the requirements of Burger or, outside of Burger, other special needs criteria (e.g., drug testing of railway employees in Skinner).

3. “Adequate Substitute for a Warrant”

In ordinary criminal contexts, a warrant:

• Is issued by a neutral magistrate;
• Is based on probable cause; and
• Specifies the place to be searched and items to be seized, thereby limiting officer discretion.

In closely regulated industries, the administrative scheme substitutes for a warrant when:

• The law itself gives clear notice to the regulated parties of inspection obligations;
• It cabins officers’ discretion by specifying when, where, and how inspections may occur;
• It is applied in a predictable, non-arbitrary manner.

In Thompson, the “warrant substitute” is the statute and rule:

• They define who is covered (federally permitted lobstermen),
• What data is collected (GPS location/time), and
• Under what conditions (whenever the vessel is in the water).

4. The Raise-or-Waive Rule and Concessions

Appellate courts typically refuse to consider legal theories not raised below (the “raise‑or‑waive” rule), with narrow exceptions. Even more strictly, they almost never allow a party to contradict an explicit concession made in the trial court.

The policy reasons:

• Fairness to the opposing party;
• Efficiency in adjudication;
• Prevention of gamesmanship (litigants “lying in the weeds” with new theories on appeal).

Thompson underscores that “agreeable acquiescence to perceivable error” at trial will not be rewarded on appeal. If a concession shapes the entire legal framework (as here, triggering Burger), the appellate court will almost always hold the party to it.

V. Impact and Broader Significance

A. Digital Tracking in Regulatory Contexts

The most immediate impact of Thompson v. Wilson lies in its affirmation that continuous GPS tracking of commercial operators can fit comfortably within the Burger framework when:

• The industry is closely regulated;
• The tracking is limited in scope (location/time only); and
• The data are used for regulatory and conservation purposes rather than ordinary crime control.

Regulators in other sectors may point to Thompson to defend:

• Electronic logging and tracking of commercial vehicles (trucks, buses, taxis, ride-sharing fleets);
• Vessel monitoring systems in other fisheries (for example, reef fish or highly migratory species);
• Location-based monitoring for regulated extractive industries (e.g., logging, mining) where precise spatial data is crucial for resource management.

At the same time, the opinion’s emphasis on the narrow scope of data (GPS coordinates and timestamps, not broader surveillance) provides a limiting principle: more intrusive data collection (audio, video, communications content, biometric data) may not be so easily justified under Burger.

B. Clarifying “Necessity” under Burger After Patel

Doctrinally, the opinion is particularly important for clarifying how lower courts in the First Circuit should understand the second Burger prong after Patel:

• No least‑restrictive‑means test: Thompson explicitly rejects the plaintiff’s argument that “necessity” has become a strict scrutiny‑like requirement as suggested by Justice Scalia’s dissent in Patel.
• Focus on warrantlessness, not method: Courts should ask whether warrantless inspections are needed to make the regulatory regime effective, not whether some other warrantless method might be marginally less intrusive.

This clarification will be particularly influential in cases where:

• Regulators adopt new technologies (e.g., electronic trackers, automated sensors);
• Regulated entities argue that technological searches are too intrusive and that paper-based or self-reporting alternatives would suffice.

Under Thompson, the core question remains: are warrants workable without undermining enforcement or compliance? If not, the regime can generally satisfy prong two even if its particular method is not the least restrictive imaginable.

C. Administrative Searches vs. Carpenter-Style Privacy Claims

Increasingly, litigants invoke Carpenter v. United States to challenge government access to location data. Thompson draws a clear line:

• Carpenter involved law enforcement obtaining nonconsensual access to sensitive cell-site location records in a criminal investigation of an ordinary citizen;
• Thompson involves a government-mandated device on a commercial vessel in a pervasively regulated industry, used for fishery management and right-whale protection.

The opinion implicitly signals that:

• Advanced surveillance technologies are not per se unconstitutional;
• Their legality depends heavily on context: the nature of the data, the purpose of the search, the regulatory surroundings, and expectations of privacy.

Future litigants seeking to extend Carpenter into administrative or regulatory domains will have to grapple with the distinction Thompson draws.

D. Fisheries Management and Federal–State Cooperation

Substantively, Thompson buttresses the ability of states and interstate commissions (like ASMFC) to:

• Mandate precise, real-time data collection from commercial fishers;
• Comply with federal directives or cooperative management plans that increasingly rely on spatial and temporal data;
• Integrate fisheries management with other ocean uses (e.g., renewable offshore energy, marine mammals protection) that depend on knowing where fishing activity occurs.

In the backdrop of other litigation (for example, Mexican Gulf Fishing Co. v. U.S. Dep’t of Commerce, 60 F.4th 956 (5th Cir. 2023), which raised distinct statutory and constitutional issues surrounding electronic surveillance in the Gulf reef fish fishery), Thompson provides a relatively government‑friendly Fourth Amendment analysis for Atlantic fisheries, at least within the First Circuit.

E. Limitations and Unresolved Questions

Despite its significance, the decision leaves several important issues unresolved:

• Is lobstering inherently a closely regulated industry?
  The court does not independently decide this question; it assumes the answer is yes because of Thompson’s concession. Future litigants who timely contest that characterization may force the First Circuit (or the Supreme Court) to decide whether fisheries, or specific sectors within them, qualify as “closely regulated.”
• What if data were used for criminal enforcement?
  The opinion assumes a primarily regulatory purpose (fishery management, right whale conservation). If regulators or law enforcement agencies begin using the tracking data systematically for criminal prosecution (beyond regulatory violations), courts may have to revisit the reasonableness analysis or consider whether the primary purpose has shifted.
• How far can digital tracking go?
  The opinion emphasizes the narrowness of the data (location/time only). It remains unclear how the analysis would change if:
  • Audio, video, or sensor data about activities on board were continuously collected;
  • The tracking extended to personal cellphones or non-commercial contexts.
• Interaction with state constitutional law:
  The case involves only the federal Fourth Amendment claim on appeal. State constitutions sometimes provide broader privacy protections; those questions remain open under Maine law.

VI. Conclusion

Thompson v. Wilson is a significant, carefully reasoned First Circuit decision that:

• Affirms the constitutionality of continuous GPS tracking of commercial lobster vessels as a form of warrantless administrative search in a closely regulated industry;
• Clarifies that, in this domain, the Burger framework is the exclusive measure of Fourth Amendment reasonableness—no separate generalized balancing or originalist historical-analogue test is required;
• Interprets the second Burger prong to focus on the necessity of warrantless inspections, not on a least‑restrictive‑means analysis of the chosen surveillance technology;
• Holds that an automated, continuous GPS tracking regime limited to in‑water vessel location and time can satisfy the third prong’s requirement of an adequate warrant substitute, given the context of fisheries regulation and maritime enforcement.

Beyond fisheries, the opinion provides a road map for courts and regulators grappling with technologically enhanced administrative searches. It suggests that:

• New tools like GPS trackers and electronic logging devices can be integrated into regulatory regimes without violating the Fourth Amendment, provided their use is:
  • Confined to pervasively regulated commercial contexts,
  • Narrowly tailored in scope of data,
  • Embedded in a clear statutory or regulatory framework that cabins discretion.
• Arguments seeking to convert Patel into a strict‑scrutiny style least‑restrictive‑means test in the Burger setting are unlikely to succeed, at least in the First Circuit.

At the same time, the decision cautions litigants about strategic concessions. Thompson’s inability to retract his agreement that lobstering is a closely regulated industry shaped the outcome. Future challengers to similar regimes will need to preserve, from the outset, arguments contesting the applicability of the closely regulated industry doctrine, or else they may find themselves, like Thompson, bound to a doctrinal framework that makes victory exceedingly hard.

In the broader constitutional landscape, Thompson illustrates how courts are negotiating the tension between the rise of ubiquitous digital monitoring and longstanding regulatory needs. It shows that, at least where commercial actors voluntarily participate in heavily regulated sectors, the Fourth Amendment does not categorically bar continuous location tracking, so long as the surveillance is appropriately constrained and justified by a robust regulatory purpose.