“Like the Internet, the [Global Positioning System (“GPS”)] is an essential element of the global information infrastructure,” and “is now in everything from cell phones and wristwatches to bulldozers, shipping containers, and ATM’s.”  GPS Applications, GPS.gov.  But, as Justice Brandeis predicted in his famous Olmstead dissent, technological advances augur challenges to individual privacy.  Olmstead v. U.S., 277 U.S. 438, 474 (Brandeis, J., dissenting).  The challenges arise from both private and law enforcement use of GPS devices.

On August 24, 2018, a district judge ruled that attaching a (“GPS”) tracking device to a motor vehicle entering the United States fell outside the “border search” exception to the warrant requirement.  U.S. v. Ignjatov, Dkt No. 17 Cr. 222, slip op (Aug. 24, 2018).  This post highlights that decision.

In the spring of 2017, the FBI learned that a group of conspirators would make several “dry runs” of a route previously used to transport cocaine from Canada into southern California.  Slip op. at 2. On October 19, 2017, Customs and Border Patrol (“CBP”) agents notified the FBI that a semi-truck bearing a license plate associated with previous cocaine trafficking by the conspirators was entering the United States at the Port Huron, Michigan border crossing.  Id.  An agent associated with either Homeland Security’s Investigations Border Enforcement Task Force or the CBP applied one GPS device to the truck and a second to the trailer.  Id.  The truck was being driven by Slavco Ignjatov and a confederate.  Using a program called Covert Tracker, agents tracked the vehicle’s location and speed periodically all the way to California.  When the truck arrived in Los Angeles, local police detectives obtained the drivers’ permission to conduct a search.  A drug-detection dog alerted to the presence of an odor of narcotics on a duffle bag carried in the vehicle.  Id. at 3.  Police nevertheless allowed Ignjatov and his confederate to proceed on their way.  On October 28, 2017, Ignjatov was arrested in when he attempted to return to Canada at the Port Huron border-crossing, and the GPS device was removed from the truck.  Id.

The Government sought to justify the warrantless installation and monitoring of the GPS device as a border search.  Border searches can be conducted without reasonable suspicion, probable cause, or a warrant.  E.g., U.S. v. Montoya de Hernandez, 473 U.S. 531, 537-39 (1985); see, Bernard W. Bell, Searching Cell Phones at the Border, 36 YALE J. ON REG.: NOTICE & COMMENT (April 2, 2018).

The District Judge found irrelevant the Ninth Circuits precedents, like U.S. v. Guzman-Padilla, 573 F.3d 865 (9th Cir. 2009), cert. denied sub nom., 562 U.S. 949 (2010), involving physical searches at the border that damage vehicles or are conducted in a particularly offensive manner.  Slip op. at 5-6.  In those cases, the search was completed at the border and had “minimal or no impact beyond the search itself.”  Id. at 6 (quoting U.S. v. Cotterman, 709 F.3d 952, 966 (9th Cir. 2013)).  But, he explained, “[s]urreptitious surveillance of an individual’s movements through placement of a GPS device on a vehicle implicates far greater privacy concerns than the physical integrity of the vehicle, and extends beyond the permissible scope of a border search.”  Id. at 7.  The “border search” exception to the warrant and probable cause requirements facilitates sovereign control of the border.  Id.  But “[o]nce the entity at issue is beyond the border, the concerns animating the border search doctrine, namely the integrity of the border, diminish, and the robust Fourth Amendment requirements adhere.”  Id.

Nor could the monitoring of the GPS device be characterized as an “extended border search.”  Id. at 8.  For a discussion of the “extended border” concept, see U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976); Yule Kim, Protecting the U.S. Perimeter: Border Searches under the Fourth Amendment 6-9 (June 29, 2009). The Judge explained that the tracking of defendants’ location at regular intervals and downloading of all historic location information made the GPS tracking a “pole apart from the discrete searches conducted under the extended border search doctrine.”  Id.

The GPS monitoring was not permissible under a general reasonableness analysis, given that “time-stamped data provides an intimate window into a person’s life.”  Id. at 8-9 (quoting Carpenter v. U.S., —U.S. —, 138 S.Ct. 2206, 2217 (2018)). The Court distinguished U.S. v. Knotts, 460 U.S. 276 (1983), which had permitted monitoring of a beeper device inserted in a container of drug precursor materials before defendant acquired it.   The Judge explained that the beeper device was placed in the container with the owner’s consent before it was sold to the defendant.  Slip op. at 9.

The decision seems clearly correct.  Permitting constant physical surveillance of a vehicle within the United States simply because the tracking device was placed on the vehicle without a warrant when it entered the country seems far beyond the justification for a border search.

But what if Border Patrol agents discover contraband during a vehicle inspection at the border, can the agents place a GPS tracking device in a container containing contraband to track where the substance is taken and monitor the device?  The Fourth Amendment, protects people, not just places or “things,” but does the power to preclude entry of contraband into the country include permitting it to enter to determine its manner of distribution?