By Hayes Hunt and Calli Varner

Almost all of us rely on technology to carry out our day-to-day activities.  We carry one, if not two devices such as a smart phone or tablet with us at all times.  Courts continue to struggle to figure out how our use of these devices fit within notions of privacy and the 4th Amendment.

Previously, we discussed the Supreme Court’s decision in United States v. Jones, a case addressing the use of GPS tracking devices to trace criminal suspects.  There, the Court held that GPS monitoring constitutes a search, although not one always requiring a warrant.  The Court suggested that a warrant is required where long-term monitoring occurs, but is not necessary where monitoring only takes place for one to two days.  Not surprisingly, this decision raised numerous questions regarding the interplay between technology and privacy. 

Since then, numerous lower courts have been faced with similar challenges.  In a recent case in Colorado, law enforcement officers were able to locate the whereabouts of a bank robber through a GPS device that was buried in the cash he was accused of stealing.  After the robbery occurred, police activated the GPS device, which lead them to an intersection nearby.  There, police blockaded approximately twenty cars at gunpoint, searching each car until the missing money was discovered in the suspect’s vehicle and the suspect was arrested.  The suspect’s attorney argued that the evidence seized from his client’s vehicle was inadmissible because the roadblock was unconstitutional.  The District Court for the District of Colorado disagreed.  Judge William J. Martinez held that the evidence was, in fact, admissible.  Noting that he was troubled by the invasive tactics used by police, he determined that the detention of the other motorists in the intersection was justified, given that a potentially dangerous criminal was on the run. 

A similar decision was recently reached by the Sixth Circuit.  There, law enforcement agents, without a warrant, used GPS information acquired from a suspect’s cell phone to track the suspect over a three-day trip in a motor home.  The agents then used this information to conduct a search of the motor home, where they found incriminating drug evidence.  The suspect was later convicted on drug charges.  The Sixth Circuit upheld the conviction, holding that there was no constitutional violation of the defendant’s rights because he had no reasonable expectation of privacy in the data obtained from his cell phone.  The court distinguished their decision from the Supreme Court’s decision in Jones on the grounds that the search did not involve a physical trespass on the subject’s private property.  Thus, a warrant was not necessary, regardless of the period of time of the monitoring.    

These cases demonstrate that courts are permitting law enforcement more latitude to use technology without the need for a search warrant.