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The Florida Bar

Search and Seizure in the Age of Technology

The federal court of appeals for the District of Columbia recently took on the issue of the use of Global Positioning System (known as GPS) devices and a defendant’s reasonable expectation of privacy in what Broward criminal lawyer William R. Moore notes was an important case for the development of technological searches.

The Fourth Amendment to the United States Constitution forbids unreasonable searches and seizures. In many cases, the law enforcement officers must obtain a warrant to conduct invasive searches. The law enforcement agency did not obtain a warrant, but had suspicions that he was involved in drugs. The placed the GPS tracking device under the bumper of his car, monitoring his comings and goings for several weeks. The defendant was the owner of a nightclub in Washington, D.C.

The defendant was subsequently convicted. However, he challenged the validity of the use of the GPS device to track him, saying that it was too invasive of a search for the government not to need a warrant. The government disagreed for several reasons. First, they argued that the defendant did not have a reasonable expectation of privacy as far as where he drove, as any member of the general public could have followed him to see where he went and when. The government also argued that the use of GPS devices to monitor the subjects of criminal investigations had already, in essence, been dealt with in previous cases and found to be constitutional: the use of beepers, attached to car bumpers, had been found not to be an unreasonable search under the Fourth Amendment.

The court dismissed the government’s arguments and found that the search was unreasonable within the meaning of the Fourth Amendment, violating the defendant’s reasonable expectation of privacy. The court determined that the comparison to beepers was not a persuasive analogy because those were usually used only for very short periods of time; for example, for trailing a suspect from one location to another. They are not generally used to track a suspect’s movements for weeks on end. The court also noted that it is extremely implausible that a member of the public would actually have followed the defendant’s every move for a month.

Evidence obtained as a result of the unlawful search was therefore excluded and the conviction was overturned. But for the illegal search, the government would have been unable to prove its case, notes Fort Lauderdale criminal lawyer William R. Moore.

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