Thursday, April 28, 2011
Ind. Decisions - Another 7th Circuit decision today, this one from Illinois and about warrants for GPS tracking
See the How Appealing writeup here.
ILB: Here is the 52-page opinion in U.S. v. Cuevas-Perez. Each of the three judges - Cudahy, Flaum and Wood - writes separately. The opinion begins:
Juan Cuevas-Perez appeals from the denial of his motion to suppress evidence, on the grounds that the warrantless use by law enforcement of a Global Positioning System (“GPS”) tracking device violated his Fourth Amendment rights. Consistent with this circuit’s existing precedent, we agree that the suppression motion should have been denied, and accordingly, we affirm.Judge Wood's dissent begins on p. 32, with:
This case presents a critically important question about the government’s ability constantly to monitor a person’s movements, on and off the public streets, for an open-ended period of time. The technological devices available for such monitoring have rapidly attained a degree of accuracy that would have been unimaginable to an earlier generation. They make the system that George Orwell depicted in his famous novel, 1984, seem clumsy and easily avoidable by comparison. This court recognized in United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), that “the meaning of a Fourth Amendment search must change to keep pace with the march of science.” Id. at 997. We sensibly commented further in that case that we were not closing the door to future developments: “Whether and what kind of restrictions should, in the name of the Constitution, be placed on such surveillance when used in routine criminal enforcement are momentous issues that fortunately we need not try to resolve in this case.” Id. at 998.Background: This ILB entry from Oct. 5, 2010 leads back to earlier entries, including this one from Nov. 23, 2009, that give a good overview of the decisions.
Today we must decide whether to extend the rule announced in Garcia, which held that the attachment of a Global Positioning System, or GPS, tracking device on a car did not require a warrant—when the device was attached in public, it merely stored data, and it was retrieved in public—should be extended to a more sophisticated GPS tracker that transmitted at fourminute intervals information about the vehicle’s location to a central monitoring office for 60 hours. My colleagues have decided that Garcia should be so extended. In doing so, they part company with the District of Columbia Circuit’s thought-provoking opinion in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), reh’g denied sub nom. United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010). With respect, I cannot take these steps. Although I part ways in some respects from the reasoning adopted by the D.C. Circuit, I would follow the ultimate conclusion announced in Maynard and find that the police cannot conduct a search using a device like the one here without first obtaining a warrant. I would therefore reverse the judgment of the district court.
[More] See this, by Orin Kerr of the Volokh Conspiracy.
Posted by Marcia Oddi on April 28, 2011 03:12 PM
Posted to Ind. (7th Cir.) Decisions