U.S. v. SPARKS

create a Fourth Amendment violation. See Cardwell, 417 U.S. 583 (no Fourth Amendment unreasonable search or seizure in removing paint scrapings from a parked car); United States v. Johnson, 431 F.2d 441 (5th Cir. 1970) (allowing police officer, without warrant, to open car door to inspect vehicle identification number on inside panel). "[One] may reasonably expect that strangers will leave his car alone, but that is not an expectation of privacy; it is an expectation of respect for one's property rights." People v. Weaver, 12 N.Y.3d 433, 450 (2009) (Smith, J., dissenting). Thus, although the idea of a government agent touching one's vehicle may raise eyebrows, it does not raise any cognizable constitutional concerns.

Even this expectation of respect is tempered when we enter the public sphere. One ought expect that a child may duck under a parked vehicle to track an errant ball, or that the local restaurant may place an advertising menu under the wiper blade. These small intrusions may be bothersome, or even statutorily proscribed, but are nonetheless an expected part of daily public life.

Because Sparks had no reasonable expectation of privacy either in the shared parking lot or in the exterior of his vehicle, the placement of the GPS device on the vehicle cannot be considered a search or seizure.

2. Monitoring of the GPS

Separate and distinct from any privacy interest in the exterior of a motor vehicle or in a private parking lot is the potential privacy interest in one's movements in the vehicle. The Supreme Court has held that "[a] person travelling [sic] in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." United States v. Knotts, 460 U.S. 276, 281 (1983); see also Katz, 389 U.S. at 351 ("What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection."). It is true, as Sparks notes, that data obtained from the device while within private residences would have to be suppressed. Karo, 468 U.S. at 714. The government, however, does not purport to rely on any information from the GPS while it was located in constitutionally protected areas. The relevant uses of the GPS device were to locate the vehicle on a public street in Waltham, and to reestablish visual surveillance on Interstate 95. The monitoring of the GPS device on Sparks's vehicle, therefore, does not implicate any privacy interests and cannot be considered a search. See id. at 721 (holding that evidence need not be suppressed where the government used a tracking device to monitor movement of vehicle as it traveled on public streets).

Sparks argues that, although society may not recognize the privacy interests in single public trips, he does maintain a reasonable expectation of privacy in the aggregate of his travels. The first rationale for this argument is essentially that the whole of one's movements during the course of surveillance is not actually exposed to the public because the likelihood that anyone will observe all those movements is essentially nil. See United States v. Maynard, 615 F.3d 544, 565-66 (D.C. Cir. 2010). The proper inquiry, however, is not what a random stranger would actually or likely do, but rather what he feasibly could. See Smith v. Maryland, 442 U.S. 735, 745 (1979).

Attempting to tie improbability to illegality is inappropriate in light of several Supreme Court Fourth Amendment decisions concerning new technology. See United States v.Jacobsen, 466 U.S. 109, 122 (1984) ("The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities."); see also Orin S. Kerr,Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 543 (2007) (explaining the various analytical frameworks used by the Supreme Court to decide Fourth Amendment cases). Many citizens would think it unlikely that government agents would rifle through their trash as it sits on the curb, or rent an airplane solely to conduct aerial surveillance of their residence, and yet these acts are firmly outside the reach of the Fourth Amendment. See California v. Greenwood, 486 U.S. 35 (1988); Ciraolo, 476 U.S. 207. Moreover, with the proliferation of private GPS use, and with media coverage of stories like the use of GPS devices to track Scott Peterson in the aftermath of his wife's death, see Judge Allows GPS Evidence in Peterson Case,

CNN.com, Feb. 17, 2004, http://www.cnn.com/2004/LAW/02/17/peterson.trial/index.html, it is unconvincing to argue that society is completely unaware of the power of these devices. Rather than using a probabilistic approach to determine reasonable expectations of privacy, in the context of governmental use of new technologies, the Supreme Court repeatedly has focused on whether the nature of the information revealed is private and thus worthy of constitutional protection. See Kerr, supra, at 512. This Court, then, is not persuaded by Sparks's likelihood analysis.

Sparks also argues that the aggregate of his travels became something of a synergism — the whole of his movements being more private than his individual travels. Citing solely to a recent decision from the U.S. Court of Appeals for the District of Columbia Circuit, Sparks alleges that the longer the GPS was placed on the car, the more his privacy was invaded because it gave the government a wealth of information about his personal preferences. See Maynard, 615 F.3d at 558, 562 ("Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation."); see also, April A. Otterberg, Note, GPS Tracking Technology: The Case For Revisiting Knotts and Shifting the Supreme Court's Theory of the Public Space Under the Fourth Amendment, 46 B.C. L. Rev. 661, 685 n. 171, 697-98 (2005) (urging courts to view the aggregation of one's travels, and the private details it reveals, as the new "private space" under the Fourth Amendment and to require a warrant for prolonged surveillance).

While this may be factually true, it is legally unconvincing. Although the continuous monitoring may capture quantitatively more information than brief stints of surveillance, the type of information collected is qualitatively the same. Sparks's aggregation argument against prolonged surveillance, as supported by the court in Maynard, is also practically unappealing. The exclusionary remedy for Fourth Amendment violations is a strong and blunt instrument. See Kerr, supra, at 527. To avoid improper application of this strict remedy it is important to provide the police with clear ex ante rules.Id. The court in Maynard, however, leaves police officers with a rule that is vague and unworkable. It is unclear when surveillance becomes so prolonged as to have crossed the threshold and created this allegedly intrusive mosaic. What's more, conduct that is initially constitutionally sound could later be deemed impermissible if it becomes part of the aggregate. Finally, and as expounded upon infra, a rule prohibiting prolonged GPS surveillance due to the quantity or quality of information it accumulates would also incidentally outlaw warrantless visual surveillance and this Court is

unwilling, and unable, to extend the reach of the Fourth Amendment that far. See Knotts, 460 U.S. at 282-85. Sparks's argument, then, that the aggregate of his travels are entitled to more constitutional protection than his individual trips, must fail.

3. Precedent

This Court is persuaded that this case falls within the ambit of the Supreme Court's holding in Knotts that the warrantless placement of a beeper tracking device inside a chloroform container, which allowed police officers to follow the defendant's movements along public roads, did not violate the Fourth Amendment because there was no reasonable expectation of privacy in public travel. 460 U.S. 276.

Sparks's argument that the First Circuit's decision in United States v. Moore, 562 F.2d 106, 112 (1st Cir. 1977), is controlling is unpersuasive. Moore's 1977 holding that police needed probable cause to install a beeper on a vehicle is no longer good law following the Supreme Court's 1983 holding inKnotts.

Sparks asks this court to disregard Knotts by arguing that modern GPS devices are so technologically advanced that they cannot be compared to primitive beeper devices. It is true that the GPS device used here was highly sophisticated, allowing the FBI accurately to locate Sparks's vehicle from any computer, at any time of the day or night, and to store a record of his travels for the entirety of the eleven day period. This is certainly more advanced than the relational "pings" of the beepers of yesteryear. A similar argument could have been made regarding the telephone in 1880 and the video camera in 1950. See Weaver, 12 N.Y.3d. at 448 (Smith, J., dissenting). Undoubtedly, a quarter-century from now, the GPS device used in this case will seem antiquated.

This technology, however, is not the type of highly sophisticated equipment that would require a warrant under Kyllo v. United States, 533 U.S. 27, 40 (2001). GPS devices are widely available to the public at large.

Yet it is not the mere "newness" of technology that might warrant reevaluation of Supreme Court precedent, but rather any increased intrusion into zones of privacy. As noted in Kyllo v.United States, 533 U.S. 27, 34 (2001), if technology allows the government to sidestep the warrant requirement by providing access into otherwise protected areas, or to protected information, it ought be considered an unreasonable search. If, however, the technology merely provides a replacement for an activity that is not a search within the meaning of the Fourth Amendment, then the use of technology does not render the activity illegal. See United States v. Garcia, 474 F.3d 994, 997 (7th Cir. 2007).

Warrantless visual surveillance or "tailing" of Sparks unquestionably would have been permissible and would have revealed to the FBI all of the same details the GPS device provided, only at a much higher cost, and possibly at a higher risk to law enforcement officers. Where the use of a tracking device serves only as a technological substitute for an otherwise legal activity, it must remain constitutionally sound. See Knotts 460 U.S. at 284 ("[A] principal rationale for allowing warrantless tracking of beepers, particularly beepers in or on an auto, is that beepers are merely a more effective means of observing what is already public."); see also Pineda-Moreno, 591 F.3d at 1216.

In fact, visual surveillance would likely have revealed a great deal more information than GPS surveillance alone. Although the GPS device gives a detailed report of the vehicle's location at a given time it tells nothing about who was driving the car, where the individual traveled once he has left the vehicle, or what venues could be found at a particular location.

"GPS devices cost between a few hundred dollars and perhaps $2,500, plus the minimal costs of monitoring. The U.S. national average of having a private investigator tail a suspect is $60 to $65 per hour. . . . Thus a one-person, sixteen-hour tail would, on average cost at least $960." John S. Ganz, It's Already Public: Why Federal Officers Should Not Need to Use GPS Vehicle Tracking Devices, 95 J. Crim. L. Criminology 1325, 1357 (2005). It is easy to see how the costs associated with any long-term visual surveillance would quickly overwhelm law enforcement resources.

It bears mentioning that here, the GPS device here was used to reestablish visual contact once the Agents had initiated pursuit. This arguably means that the use of the GPS technology enabled police officers to do something that could not be done with mere visual surveillance. The Supreme Court in Knotts, however, expressly certified that such use of technology passed constitutional muster. 460 U.S. at 285 ("Admittedly, because of the failure of visual surveillance, the beeper enabled the law enforcement officials in this case to ascertain the ultimate resting place of the [object being tracked] when they would not have been able to do so had they relied solely on their naked eyes. But scientific enhancement of this sort raises no constitutional issues which visual surveillance would not also raise.").

Nothing in the Fourth Amendment prohibits the police from augmenting their sensory abilities. Knotts, 460 U.S. at 282. The Supreme Court has "never equated police efficiency with unconstitutionality." Id. at 284; United States v. Michael, 645 F.2d 252, 259 (5th Cir. 1981) (Clark, J., concurring) ("Requiring the fourth amendment's warrant procedure to be used or excused every time a policeman's senses or abilities are mechanically or electronically enhanced would diminish their usefulness needlessly."). What's more, adopting Sparks's argument would stymie police in their chase to catch up with the technical sophistication of criminals. Weaver, 12 N.Y.3d. at 448 (Smith, J., dissenting).

Officers routinely use highly sophisticated tools including radios, street cameras, radar, helicopters, computers, quick-access files of license tags and fingerprints, and microscopes in the performance of their duties. "[M]ost of these devices and systems intrude into areas of citizens' lives that were private in the day of the deerstalker and magnifying glass" and yet they are permissible today in order to facilitate efficient and accurate law enforcement. Michael, 645 F.2d at 259 (Clark, J., concurring). The law ought embrace those technologies which produce more accurate fact-finding. Advances in technology, like GPS devices, provide neutral and credible evidence and thus facilitate the ultimate (and yet amorphous) goal of "justice."

In the era of modern GPS devices, nearly every federal court of appeals and district court to address this issue has ruled that the government is not required to obtain a warrant before installing or monitoring a hidden GPS device on the exterior of a vehicle. See United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010);Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); Garcia, 474 F.3d 994 (7th Cir. 2007); McIver, 186 F.3d 1119 (9th Cir. 1999); United States v. Burton, 698 F. Supp. 2d 1303 (N.D. Fla. 2010);Morton v. Nassau County Police Dep't, No. 05-CV-4000, 2007 WL 4264569 (E.D.N.Y. Nov. 27, 2007); United States v. Moran, 349 F. Supp. 2d 425 (N.D.N.Y. 2005). The most recent federal case to address the issue, from the Court of Appeals for the District of Columbia Circuit, came down while the instant case was pending. Maynard, 615 F.3d 544. The court broke from the Seventh, Eighth, and Ninth Circuits, ruling that Knotts was not controlling, and held that the placement of a GPS on the defendant's car for four weeks was a search and thus

State courts have split as to whether the monitoring of a GPS device constitutes a search under their respective state constitutions. Several state supreme courts, including that of Massachusetts, have ruled that the warrantless monitoring of GPS devices violates their state constitutions. Commonwealth v.Connolly, 454 Mass. 808 (2009); Weaver, 12 N.Y.3d 433; State v.Jackson, 150 Wash. 2d 251 (2003); State v. Campbell, 306 Or. 157 (1988). But see Osburn v. State, 118 Nev. 323 (2002) (ruling that attaching GPS to bumper of car was not an unreasonable search). State constitutions, however, typically provide greater protections than those required under the United States Constitution. See Weaver, 12 N.Y.3d at 445; see also Herbert P. Wilkins, Judicial Treatment of the Massachusetts Declaration of Rights in Relation to Cognate Provisions of the United States Constitution, 14 Suffolk U. L. Rev. 887 (1980).

required a warrant under the Fourth Amendment. Id. at 556-58, 563-65.

One of the main rationales underlying the decision in Maynard was that the use of the GPS device was continuous and prolonged.Id. Although the FBI's use of the GPS device in monitoring Sparks was technically continuous, the surveillance of Sparks is readily distinguishable from that which was declared unconstitutional inMaynard. In Maynard, the police installed a GPS device and monitored the defendant twenty-four hours a day for twenty-eight days. Id. at 558. Using the data, the government was able to establish a pattern consistent with drug trafficking. Id. at 567. In contrast, the FBI installed the GPS device on Sparks's vehicle for eleven days and used the data to locate the vehicle in order to initiate visual surveillance. In this respect, the use of the GPS device on Sparks's vehicle is more akin to the use of the beeper in Knotts than that of the GPS device in Maynard.

The Supreme Court in Knotts expressly reserved the issue of the constitutionality of twenty-four hour surveillance of private citizens without judicial knowledge or supervision because the "reality [of police practice] hardly suggests abuse." 460 U.S. at 283 (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 566 (1978) (internal quotation marks omitted)). This Court is not unsympathetic to the sentiment expressed by Chief Judge Kozinski and his Ninth Circuit bretheren, that there is something "creepy" about continuous surveillance by the government. United States v. Pineda-Moreno, 617 F.3d 1120, 1126 (9th Cir. 2010) (denying petition for rehearing en banc) (Kozinski, J., dissenting). It is, of course, easy to envision the worst-case Orwellian society, where all citizens are monitored by the Big Brother government. It is simply unreasonable at this point, however, to conclude that any government — municipal, state, or federal — has the resources, or interest, to initiate personalized surveillance of every citizen. What's more, the type of "dragnet" law enforcement practices postulated in Knotts, a quarter of a century ago, have yet to materialize, and are certainly not at issue in this case.

This is especially so in light of recent publicity surrounding the increased use of GPS devices by law enforcement. See, e.g., Mina Kim, FBI's GPS Tracking Raises Privacy Concerns, National Public Radio, Oct. 27, 2010, http://www.npr.org/templates/story/story.php?storyId=130833487.

But, for examples of widespread government surveillance, see Protect America Act, 50 U.S.C.A. §§ 1805a to 1805c (2007) (allowing the government to conduct foreign intelligence surveillance on targets reasonably believed to be located outside the United States); Charlie Savage, U.S. Tries to Make it Easier to Wiretap the Internet, N.Y. Times, A1, Sept. 27, 2010 (explaining a bill, proposed by the Obama administration, that would require all communications service providers — including BlackBerry and Facebook — to be technologically capable of complying with a wiretap order if served, much like telephone companies are required to do under the Communications Assistance to Law Enforcement Act, 47 U.S.C. 1001 to 1010 (1994)); James Risen Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, A1, Dec. 16, 2005 (revealing the warrantless surveillance of hundreds, perhaps thousands, of people's phone calls by order of President Bush).

Whether and what kind of restrictions should, in the name of the Constitution, be placed on [mass] surveillance when used in routine criminal enforcement are momentous issues that fortunately we need not try to resolve in this case. . . . Should government someday decide to institute programs of mass surveillance of vehicular movements, it will be time enough to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search.

Garcia, 474 F.3d at 998.

III. CONCLUSION

Today this Court must attempt to strike the balance between the constitutional protections of personal privacy and the ability of the government to protect the public through the use of bourgeoning technology. In the active pursuit of law enforcement "[t]here is a tradeoff between security and privacy, and often it favors security." Garcia, 474 F.3d at 998. This is not to say that the government should be permitted to stride, unchecked, through this technological age, but rather that we carefully must determine the point at which our Constitution intervenes. This Court takes heed of the Supreme Court's recent warning that "[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society becomes clear." City of Ontario v. Quon, 130 S.Ct. 2619, 2629 (2010). Today's decision reinforces that, although we are not yet faced with police overreaching, it may very well be near, and this Court and others will be keeping vigilant watch.

Here, the actions taken by the police were directed at essentially public places and activities. Sparks had neither a subjective nor objectively reasonable expectation of privacy in the open air parking lot, the exterior of his car, or the movement of his vehicle on public streets. The government's ability to harness advanced technology to assist in effective law enforcement does not change this constitutional analysis. Given the absence of any reasonable expectation of privacy by Sparks, this Court must conclude that no warrant or other court order is necessary to install or monitor the GPS.

For these reasons, Sparks's motion to suppress was DENIED from the bench on September 22, 2010.