There's No Sense Waiting To See What The U.S. Supreme Court Has To Say About GPS Tracking

That appears to be the opinion of Magistrate Judge David Noce in United States v. Robinson, No. 4:11-cr-00361 (D. Mo. Dec. 27, 2011), who ruled that GPS tracking of a public official suspected of having a no-show municipal job did not require a warrant. This is, of course, the issue that is before the U.S. Supreme Court in United States v. Antoine Jones, No.10-1259 (U.S. cert. granted June 27, 2011), a fact that the magistrate judge recognized in his opinion.

Judge Noce noted precedent in the Eighth Circuit, as well as other circuits, for warrantless GPS tracking in similar situations. Relying on that precedent, he concluded that the tracking did not constitute either a search or a seizure, nor did it violate the defendant's First Amendment associational rights.

The GPS tracking of the defendant's automobile was conducted by the public corruption squad of the FBI, whose agents tracked the defendant using physical surveillance techniques for an unspecified period of time. This personnel-intensive technique was later replaced by a GPS tracking device that was magnetically attached to the defendant's automobile while it was parked on a public street near his residence. The result was 24-hour tracking of the defendant's automobile over a three-month period. The tracking revealed, according to the Government, that the defendant's employment time sheets were false.

In concluding that the installation of the device did not constitute a search requiring a warrant, the magistrate in United States v. Robinson relied on United States v. Marquez, 605 F.3d 604 (8th Cir. 2010), which involved GPS tracking of a drug suspect for six months. The court in Marquez concluded that the GPS tracking did not constitute a search because the defendant did not have a reasonable expectation of privacy in the exterior of his vehicle; the installation of the GPS tracker was "non-invasive" and the vehicle was in a public place when the device was attached.

Neither was there a seizure of the defendant's property as a result of the GPS device installation, the magistrate concluded, referencing the Seventh Circuit ruling in United States v. Garcia, 474 F.3d 994 (7th Cir.), cert. denied, 552 U.S. 883 (2007). That ruling also focused on the non-intrusive nature of the GPS device and the fact that it was battery-powered and did not utilize the car's power system; did not affect its driving qualities or carrying capacity or even alter the vehicle's appearance.

The magistrate...