The Volokh Conspiracy

I haven’t blogged recently on judicial decisions considering the mosaic theory of the Fourth Amendment. As regular readers will recall, the “mosaic theory” is a term for the idea that long-term monitoring of a suspect can be a Fourth Amendment search even if short-term monitoring is not. Under this approach, which was suggested by the concurring opinions in United States v. Jones, surveillance and analysis of a suspect is outside the Fourth Amendment until it reaches some point when it has gone on for too long, has created a full picture of a person’s life (the mosaic), and therefore becomes a search that must be justified under the Fourth Amendment. I think the mosaic approach is a misstep for reasons I elaborated on in this article. And the handful of lower courts to have considered the theory since Jones mostly have not adopted it, either because they found it unpersuasive, because they distinguished Jones on the facts, or because they avoided the question under the good-faith exception to the exclusionary rule. See, e.g., United States v. Graham, 846 F.Supp.2d 384 (D.Md. 2012).

In the last week, two district courts have divided on the question: United States v. Rigmaiden (D. Ariz. May 8, 2013), and United States v. Powell, — F.Supp.2d –, 2013 WL 1876761 (E.D. Mich May 3, 2013) In this post, I want to discuss the two rulings, and then offer some critical commentary on Powell at the end.

First, today in United States v. Rigmaiden (D. Ariz. May 8, 2013), Judge Campbell held that the third-party doctrine applies to both cell-site information collected over 38 days and websurfing destination IP address information that collected 1.8 million destination IP addresses. Judge Campbell held that the mosaic theory did not apply when the government obtained historical cell-site records of the target’s location over a 38 day period, which it used to find the defendant:

Defendant argues that the government was able to use the cell-site information to effectively track his aircard from June 10 to July 18, 2008, a period of 38 days, and that this “prolonged surveillance” implicated his reasonable expectation of privacy. Doc. 824 at 215-17. Defendant relies on United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), and United States v. Jones, 132 S.Ct. 945 (2012), but those decisions are inapposite. They do not address orders under the SCA, and the Supreme Court in Jones did not adopt the privacy theory advanced by Defendant.

In this case, a government agent, working in his office with the historical cell-site information and using mathematical and triangulation techniques, was able to calculate a general location for Defendant’s aircard during a 38-day period. The calculation narrowed the location of the aircard to one-quarter of a square mile.The Court cannot conclude that such use of cell-site information [over a 38 day period], obtained from a third party under the SCA, is tantamount to attaching a GPS device to a person’s vehicle. Calculations made from the historical cellsite information did not provide minute-by-minute intelligence on Defendant’s precise movements as did the GPS device in Maynard. The calculations merely identified a general area where the aircard was located – and stationary – for 38 days.

Also, in the case of the IP addresses monitored, the volume of surveillance didn’t matter:

Nor did the government violate Defendant’s Fourth Amendment rights by the volume of IP addresses it obtained. Defendant notes that the government obtained 1.8 million IP addresses from Verizon, and argues that the government should have tailored its request more narrowly and obtained only those IP address it had already connected to the tax-refund scheme. Because obtaining IP addresses is akin to obtaining telephone numbers, an act that does not implicate the Fourth Amendment at all, Forrester, 512 F.3d at 510–11, the Court cannot conclude that the government was required to narrowly tailor its request. Moreover,Forrester specifically held that there is “no difference of constitutional magnitude” between obtaining IP addresses and learning the total volume of communications with such addresses, holding that the government’s monitoring of “the total volume of data transmitted to and from [the defendant’s] account” did not violate the Fourth Amendment. Id. at 511. If the government can obtain destination IP addresses and the total volume of such communications without implicating the Fourth Amendment, the Court cannot conclude that the government somehow violated the Fourth Amendment when it obtained 1.8 million IP addresses accessed by Defendant’s computer.

On the other hand, last week Judge Murphy of the United States District Court for the Eastern District of Michigan handed down a decision adopting what amounts to a mosaic approach for cell-phone tracking in United States v. Powell, — F.Supp.2d –, 2013 WL 1876761 (E.D. Mich May 3, 2013). In Powell, eight defendants in a wide-ranging narcotics conspiracy jointly moved to suppress cell-site and GPS information obtained from six cell phones to monitor the location of the conspirators. The FBI had obtained a series of search warrants to obtain the records pursuant to Federal Rules of Criminal Procedure 41. Each of the warrants allowed the government to monitor an individual phone for at least 30 days, and the collection of all the warrants together allowed the agents to monitor the collection of cell phones for about seven months. The monitoring occurred over seven months in 2010, and one warrant in particular revealed very helpful information about the locations of at least one of the conspirators. Fourteen conspirators were charged in the case, and eight defendants moved together to suppress the location monitoring on the ground that the warrants were defective and thus that the fruits of the location monitoring had to be suppressed.

In Judge Murphy’s opinion, he ultimately rules that the good-faith exception to the exclusionary rule applies, so the motion to suppress is denied. But before he gets there, he adopts a few novel holdings about the Fourth Amendment.

First, Judge Murphy rules that a warrant was required to conduct as much monitoring as the government conducted. It’s true that in United States v. Skinner, the Sixth Circuit (binding on Judge Murphy) had said that cell-phone tracking of a suspect was outside the Fourth Amendment. But Skinner involved tracking for only a few days, while all of the monitoring collectively in this case involved tracking of the various suspects for seven months. This was a long enough period that it was highly likely that some of the tracking occurred when suspects were inside their homes: “Given the duration and intensity of the tracking, it cannot be reasonably argued that only public-thoroughfare data was collected. The government certainly collected cell-site data emanating from within the defendants’ homes or from another place in which the defendants had a legitimate expectation of privacy.” That matters because United States v. Karo had held that it was a search to monitor the location of a beeper device from inside a home. Under Karo, “[i]f at any point a tracked cell phone signaled that it was inside a private residence (or other location protected by the Fourth Amendment), the only other way for the government to have obtained that information would be by entry into the protected area, which the government could not do without a warrant.” This was bolstered by Kyllo v. United States, Judge Murphy reasoned, because the government couldn’t know if it was monitoring a suspect’s location inside the home:

In Kyllo, the Court rejected the argument that the government could restrict its thermal searches to non-“intimate” details based on the practical observation that “[n]o police officer would be able to know in advance whether his through-the-wall surveillance picks up ‘intimate’ details-and thus would be unable to know in advance whether it is Constitutional .” Id. at 38 (italics added). The same problem is posed by requests for prospective real-time cellsite location data. The March 11, 2010 warrant authorized the DEA to collect real-time cellsite location data for up to thirty days. Under virtually any circumstance, there was no way the DEA could know in advance whether or not the location data collected during that period would come from within a protected area.

Having distinguished Skinner, Judge Murphy then turned to the concurring opinions in Jones:

The Court’s Fourth Amendment concerns also overlap with those expressed by the D.C. Circuit in Maynard, and in the Jones concurrences. See Maynard, 615 F.3d at 562; Jones, 132 S.Ct. at 963–64 (Alito J., concurring in the judgment); Jones, 132 S.Ct. at 954–57 (Sotomayor, J., concurring). Generally speaking, those opinions express the view that warrantless long-term tracking by electronic means violates an individual’s reasonable expectation of privacy, not just because of the potential for tracking into protected areas, because the information obtained through such means is, in the aggregate, so comprehensive.FN7 See, e.g., Jones, 132 S.Ct. at 964 (“[S]ociety’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”) (Alito, J., concurring). The Jones majority found the Fourth Amendment implicated on narrower, property-based grounds, and declined to decide whether surveillance of Jones over thirty days by “electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy.” Id. at 954 (“[T]he present case does not require us to answer that question.”). That basis of decision is not available in this case because no device was installed, and yet the privacy concerns implicated by the tracking seem just as profound.

For these reasons, the Court finds that when the government requests authorization to engage in long-term, real-time tracking of an individual’s movements via his or her cell phone, the situation reaches past the law set forth in Skinner, and Fourth Amendment concerns are implicated.

Judge Murphy reconciles his decision with Skinner as follows:

The cell-phone tracking standard is meant to be read in harmony with the Sixth Circuit’s holding in Skinner. Specifically, if the government seeks to track an individual for a short period of time only, with no foreseeable intrusion into protected areas, the probable-cause showing discussed here would not apply and Skinner would plainly govern. If, for example, the tracking was to be done for a limited purpose on public thoroughfares—like in Skinner, with foreknowledge a suspect was taking a two day cross-country trip—the specific Fourth Amendment concerns addressed here would not be raised. But if the tracking the government seeks to undertake is similar to the “intensive 28–day” monitoring the Sixth Circuit itself distinguished, then the more detailed showing required to meet the cell-phone tracking standard should be made

As I have written about the problems I see with the mosaic theory, I was very interested to know what kind of distinction Judge Murphy was drawing between short term and long term monitoring. Which version of the mosaic theory is Judge Murphy adopting? The DC Circuit’s, Alito’s, Sotomayor’s, or something else? How does it apply? How do you group over six phones and monitoring pursuant to a string of different warrants? Who has standing to challenge a mosaic search? Where are the lines? Judge Murphy responds in Footnote 7:

[The mosaic] view has its critics. See, e.g., Orin Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L.Rev. 311 (2012). The present Order does not adopt any of the “mosaic theory” approaches specifically, nor does it purport to address the questions raised in Kerr’s article regarding the implications of the approach. The Court simply notes that the constitutionality of long-term cell-phone tracking was left open in Jones, submits that the privacy issues presented by such tracking merit a doctrinal response, and finds that the facts presented here fall on the wrong side of the constitutional divide.

Judge Murphy next concludes that such monitoring not only requires a warrant, but that it requires a special kind of warrant:

Continue reading ‘District Judges Divide on Long-Term Cell Phone Tracking Under the Fourth Amendment’ »

The Massachusetts Supreme Judicial Court has asked for amici help in two pending cases about the Fourth Amendment and GPS surveillance:

In these cases involving co-defendants, the issue presented, among others, is whether an affidavit demonstrated sufficient probable cause in support of an application for a warrant secretly to attach a GPS device to a motor vehicle and to monitor tracking information; whether a passenger has standing to challenge the evidence seized as a result of such monitoring; whether a passenger in a vehicle to which a GPS device is attached is either “seized” or “searched” to the same extent as the driver or the vehicle itself.

On the first question, probable cause, I gather there is a preliminary issue of whether a warrant or probable cause is required to install the GPS device. There is litigation pending on that issue in the federal courts — it’s a difficult issue, in my view — although I don’t know if the issue is also being litigated in the Massachusetts case. Assuming that already has been answered in the affirmative or (unfortunately) has been conceded away, the question becomes what kind of probable cause is deemed sufficient. In the case of a Fourth Amendment search, the ordinary kind of probable cause is probable cause to believe that there is particularly described evidence to be seized inside the particularly described place to be searched. I don’t know how this is supposed to work with a GPS warrant, though. In the case of a GPS search, the government isn’t actually looking to search inside the car for evidence. The car is the place where the GPS is installed, and under Jones it is the “place” where the search occurs. But the information sought is outside of that place, not inside it: The government wants to know where the car will go, not what is inside the car. Perhaps the constitutional standard should be probable cause to believe that the location of the car will be evidence of crime. But if so, I don’t know how you draft the warrant. Is the place to be searched the car, and the evidence to be seized just something abstract like “information about the location of the car”? I’m not sure. That’s not a terrible starting point if you need to cram it into existing doctrine, although it’s not a very clean fit.

On the second question, standing, I think the proper scope of standing depends on what ground(s) the Court uses to conclude that the use of a GPS device was a search. If the SJC is only relying on the Jones trespass rationale, then under Jones I would think the Court needs to consider whether the driver and passenger each individually have sufficient property rights (either as owner or bailee) to challenge the search. See Jones, footnote 2. If the SJC is relying on a reasonable expectation of privacy approach but not the mosaic theory to say that the use of the GPS device is a search — which seems unlikely, but I suppose it’s still theoretically possible — then I would think the framework of Rakas v. Illinois, 439 U.S. 128 (1978), still applies. Finally, if the SJC is relying on the mosaic theory of the Jones concurrences to say that the use of the GPS device is a search, then there are lots of complex questions of standing and remedy that the Court has to answer. In my article, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311 (2012), I flag some of those questions that need to be answered if a court adopts the mosaic approach. An excerpt:

If the exclusionary rule generally applies to mosaic search violations, courts will need to determine its scope. The first challenge is identifying who has standing to challenge a mosaic search. Fourth Amendment rights are personal, and individuals can invoke a remedy only if their own rights have been violated. The Fourth Amendment standing inquiry arises as an application of the reasonable expectation of privacy test. Every defendant must establish that his or her own reasonable expectation of privacy was violated to merit a ruling suppressing the evidence.

Standing raises difficult challenges for the mosaic theory because conduct that creates a mosaic may involve monitoring different people at different times to different degrees. Consider the facts of a recent district court case, United States v. Luna-Santillanes. Three conspirators ran a heroin trafficking enterprise and shared three cars. Different drivers drove the three different cars at different times. Investigators installed GPS devices on all three cars and used the GPS devices to track the movements of the three defendants. The first car was monitored for two months; the second car was monitored for what the court called “a few” days; and the third car was monitored for only two days.

Assuming that the collective monitoring of the three cars constituted a search, who has standing to challenge it? Do all three defendants have standing because their location was monitored as part of a broader mosaic? Or must the standing inquiry look to each individual and consider whether the monitoring of that particular defendant was enough to constitute its own mosaic? Or perhaps the standing inquiry should operate on a car-by-car basis, limiting standing to primary drivers or passengers of particular cars? If the exclusionary rule applies to mosaic searches, courts will need to develop answers to these questions.

[Next] consider whether the exclusionary rule applies to the entire mosaic or only some part of it. To simplify matters, let’s use the prior assumption that seven days of GPS monitoring crosses the line to become a search. If the police monitor a GPS device for ten days, must the entire ten days of monitoring be suppressed? Or should courts only suppress the last three days of monitoring data that occurred after the search line was crossed? Further, imagine the police learn on day two of the ongoing surveillance that the suspect committed a crime. Should the evidence from day two be suppressed because it was part of the mosaic triggered after seven days, even though the collection of that evidence was not a search when it occurred? Or is the evidence from day two an inevitable discovery because it would have been discovered if the monitoring had stopped before the amount of monitoring crossed the mosaic threshold?

A related issue arises when investigators use surveillance to locate targets at a particular moment rather than to develop a picture of their lives over time. Consider a recent case involving a GPS device attached to a car used to transport heroin. Investigators used GPS tracking to find the car. After finding the car, officers conducted a pretextual traffic stop based on a traffic violation, asked for and obtained consent to search the car, and then retrieved two kilograms of heroin inside. Assuming the GPS device was used long enough to cross the threshold of a search, should the heroin be suppressed as a fruit of the poisonous mosaic search? Or does the exclusionary rule not apply because the stop was the product of a short-term use of the GPS device rather than a broader mosaic?

The Michigan Law Review has posted the final version of my latest article, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311 (2012), on its website. Here’s the abstract:

In the Supreme Court’s recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The Article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis.

I recently posted a substantially re-written version of my forthcoming article, The Mosaic Theory of the Fourth Amendment. The new version is much tighter; it says more about the purpose of the theory; and it takes a stronger view on whether it should be adopted. Here’s the new abstract:

In the Supreme Court’s recent decision on GPS surveillance, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions have always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis.

Thanks to the VC commentariat for their many suggestions in a previous thread on a better phrase to use to describe the traditional method of analysis. I ended up replacing the “discrete-steps approach” with the “sequential approach,” which I hope is clearer and more accurate.

In my forthcoming article, The Mosaic Theory of the Fourth Amendment, I discuss why the mosaic theory of the Fourth Amendment raises puzzling questions about standing:

Fourth Amendment rights are personal, and individuals can only invoke a remedy if their own rights were violated. The Fourth Amendment standing inquiry arises as an application of the reasonable expectation of privacy test; each person must established that his or her own reasonable expectation of privacy was violated to have standing to challenge the government’s act. But who has standing to challenge a mosaic search? The question is difficult because mosaic searches occur over time, and the overall mosaic therefore may monitor different people at different times in different degrees. To appreciate this, imagine that Alan has a GPS device installed in his car, and Bob then steals Alan’s car and begins to drive it around as his own. Bob drives the car for 30 days, and during that time he often gives rides to Charles, Dave, and Elizabeth. Charles gets a ride almost every day; Dave every other day; and Elizabeth only rides in the car twice. The police remotely turn on the GPS device when the car is reported stolen, and they monitor the car for 28 days.

We know from Jones that five Justices would say that the 28 days of GPS monitoring amounts to a search. But who has standing to challenge it? Does Bob have standing on the ground that his location was monitored for the full 28 days? Or does he lack standing because the stole the car, and therefore has no rights in it?203 If Bob has standing, what about Charles, Dave, and Elizabeth? Do all three have standing because their location was monitored as part of a broader mosaic search? Or must the standing inquiry look to each individual, requiring an assessment of whether the monitoring of each individual suspect was enough to constitute a mosaic?

A district court recently became the first court to grapple with these questions in United States v. Luna–Santillanes, 2012 WL 1019601 (E.D. Mich. March 26, 2012). The facts of the case nicely bring out some of the difficulties of the mosaic approach.

Luna-Santillanes, Jiminez, and Chaviravelazquez were running a heroin conspiracy. The conspiracy used three cars: a Lincoln Aviator, a Chrysler Sebring, and a Mazda. Different drivers drove different cars at different times. Investigators ended up installing GPS devices on all three cars, and they used the GPS devices to track the movements of the cars to know what the heroin ring was up to. The Chrysler had a GPS device installed and monitored for 2 months; the Lincoln, for 2 days; and the Mazda, for “a few” days. The GPS tracking was useful to the investigators not only to understand the conspiracy, but also to bring the police to the scene of particular events so they could conduct searches and try to find drugs. For example, the investigators tracked the movements of the Lincoln Aviator when it was used to transport heroin when being driven by Chaviravelazquez. The officers used the GPS to know where the car was to pull over the car for a traffic stop. During the stop, the officers asked Chaviravelazquez to consent to search; a search of the car led to the discovery of two kilos of heroin inside. The GPS devices on the other two cars led to similar discoveries.

At trial, Luna-Santillanes and Jiminez moved to suppress both the location evidence from the GPS devices and all the evidence that was a fruit of the poisonous tree — that is, the drugs found in the cars when they were stopped thanks to the GPS surveillance. The district judge denied the motion to suppress on grounds that neither Luna-Santillanes (who the Court refers to as D-1) nor Jiminez (who the Court refers to as (D-2) had standing to challenge the mosaic search:

Applying Katz to the facts presented here, it is Defendants’ reasonable expectation of privacy in their movements, not merely the movements of a vehicle they sometimes used, that triggers Fourth Amendment protections. Although D–1 was observed using the red Lincoln Aviator on April 11, 2011, he was not using the vehicle when the GPS device was placed on it. Rather, the TFOs installed the GPS device on that vehicle after they saw it unoccupied and parked on the street near the River Rouge residence that they were observing for reported drug activity. More importantly, neither D–1 nor D–2 was driving the red Lincoln Aviator on April 14, 2011 when the traffic stop and search occurred that produced the kilograms of heroin that these Defendants seek to suppress.

Rather than ownership or exclusivity, the record evidence establishes that D–1 drove the red Lincoln Aviator one time—on April 11, 2011—, a few days before the GPS device was attached. It further establishes that the GPS device was installed on the red Lincoln Aviator only one day before the April 14, 2011 traffic stop, consented-to search, and seizure. Moreover, as established by testimony at the March 20, 2012 hearing, the GPS device on the red Lincoln Aviator was removed within hours of the April 14, 2011 traffic stop. Thus, even if Defendants could establish that they had standing to challenge the April 14, 2011 search and seizure of the red Lincoln Aviator, the one-day monitoring of that vehicle constituted a reasonable search. As Justice Alito observed in his concurring opinion in Jones, “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.” Id. at 964. For the above stated reasons, D–1′s and D–2′s motions to suppress the kilograms of heroin seized on April 14, 2011 are denied

. . . . At the March 20, 2012 hearing, these Defendants argued that, because the government placed a GPS device on every vehicle available to them, they had a legitimate expectation of privacy, not in the three vehicles at issue here but rather in the totality of their movements on the roadways over an extended period of time. The Court rejects that argument for the following reasons. First, Jones did not go this far, and Defendants cite no binding decision that does. Second, the facts presented do not support Defendants’ claim. The testimony at the suppression hearing failed to establish that there was a GPS device on the silver Chrysler Town and Country minivan driven by D–2 during the July 21, 2011 traffic stop where the kilograms of cocaine were seized. Moreover, rather than exclusivity of use, the evidence presented shows that Defendants 1, 2, and 3 used the three vehicles at issue here, and other vehicles, interchangeably. In fact, there is evidence that a CS was allowed to drive the rented black Mazda. (Gov’t Ex. 12.) Finally, as the testimony at the hearing established, although the GPS device was on the silver Sebring for about two months, a GPS device was on the red Lincoln Aviator for two days at the most and was on the rented black Mazda for only “a few days.”

The Court’s analysis here is not exactly a model of clarity, perhaps reflecting the difficulty of applying the mosaic frameowrk to such complicated facts: There are three defendants, three cars, and three different periods of GPS monitoring, with each car being used by different people at different times. But it arguably suggests that one day of GPS monitoring is lawful under Jones, and perhaps that standing to challenge a stop that is a fruit of GPS monitoring requires that the stop implicate the suspect’s rights rather than just that the monitoring as part of the mosaic implicate the suspect’s rights.

I’m curious, for readers who are proponents of the mosaic theory, do you think this case was correctly decided? Why or why not?

I’ve been working on an updated draft of my forthcoming article on the mosaic theory of the Fourth Amendment, and I could use help from readers on a relatively simple labeling question. In the article, I’m trying to contrast two understandings of the Fourth Amendment. The first understanding is the traditional view that courts must analyze whether government conduct is a Fourth Amendment search by focusing just on that one act at that one moment — that is, viewing each government act as a discrete step, and analyzing that discrete step as a search or a non-search. The second understanding is the new idea that courts should analyze whether government conduct is a Fourth Amendment search by aggregating over some range of different acts over different times, and considering whether the collective set of acts considered in the aggregate amounts to a search. When the first decision on the new approach came down, I decided to call the new approach “the mosaic theory,” as it is based on the notion that the aggregate of government conduct paints a mosaic of information about a suspect. I like that label, and plan to stick with it. My question is, what should I call the traditional approach? My current draft calls it “the discrete steps approach,” as it uses each discrete law enforcement act as the basic unit of analysis. But that label seems awkward, and I wonder if any readers have better ideas. I’d like a label that is relatively short, descriptive, and intuitive. I considered calling it “the atomistic approach,” but that label has been used in Fourth Amendment scholarship for a different idea, and using it here would be too confusing. I also thought of just calling it “the traditional approach,” but I’d like something more descriptive. Any ideas?

In my forthcoming article, The Mosaic Theory of the Fourth Amendment, I explain that there are lots of ways in which courts might avoid applying the exclusionary rule if they conclude that the mosaic theory of the Fourth Amendment from the concurring opinions in United States v. Jones offers a viable theory of Fourth Amendment protection. The recent case of United States v. Leon, 2012 WL 1081962 (D.Hawaii, March 28, 2012) offers a creative example that stretches the rationale of the Supreme Court’s recent good-faith decision in Davis v. United States.

In 2009, investigators installed a GPS device on Leon’s car because they suspected he was trafficking in meth. The GPS device monitored the location of Leon’s car for more than three months. In this case, Leon has moved to suppress the fruits of the GPS monitoring of his car. He argues that the installation of the GPS device was a search under the majority opinion in United States v. Jones and that the long-term use of the GPS device was a search under the concurring opinions in that case. The district court first rules that under Davis, the good faith exception applies to the installation of the device because the officers had relied on prior 9th Circuit precedent holding that it was neither a search nor seizure to install a GPS device. So far, so good — that’s what Davis requires. But the district court then rules that the good-faith exception applies to the long-term use of the device — which the court seems to assume is a viable theory of Fourth Amendment protection — even though there was no prior precedent approving that:

Unlike the placement of a GPS tracking device on the exterior of a vehicle in an area where a defendant has no legitimate expectation of privacy, neither Supreme Court nor Ninth Circuit binding precedent in 2009 authorized the agents to continuously monitor the location of the vehicle in public places for a prolonged period of time. Davis therefore is not directly controlling on this issue. Instead, the court must determine whether the agents exhibited “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights” or whether they acted “with an objectively reasonable good-faith belief that their conduct [was] lawful.” Davis, 131 S.Ct. at 2427. And after examining precedent as of 2009, the court finds that the agents’ conduct in the use of the GPS tracking device was objectively reasonable.

United States v. Knotts, 460 U.S. 276, 281 (1983), applying the reasonable expectation of privacy test and citing a generally diminished expectation of privacy in automobiles, held that using a beeper to track a vehicle in public places does not violate the Fourth Amendment:

A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [codefendant] Petschen travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.

Prior to 2009, only one circuit court addressed the constitutionality of GPS monitoring. United States v. Garcia, 474 F.3d 994 (7th Cir.2007), largely relying on Knotts, held that the use of the GPS device did not implicate the Fourth Amendment. Id. at 997 (“But GPS tracking is on the same side of the divide with the surveillance cameras and the satellite imaging, and if what they do is not searching in Fourth Amendment terms, neither is GPS tracking.”). In contrast, as of 2009, no circuit court had held that the prolonged use of a GPS device to be unconstitutional.

Given the state of the law in 2009, the evidence clearly establishes that the DEA agents did not “exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights .” Instead, they acted with an objectively reasonable good-faith belief that their conduct was fully compliant with then-existing Fourth Amendment jurisprudence. Knotts, when considering older beeper technology, specifically found that a person, “travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 460 U.S. at 281. Although the technology changed, the agents were certainly justified in relying on Knotts’ rationale in determining that no warrant was required.FN5 And the sole circuit court to consider the use of a GPS device prior to 2009 found no Fourth Amendment violation, even considering the change in technology.

And although not directly relevant to the agents’ objectively reasonable good-faith belief as of 2009, three judges of the Ninth Circuit found the prolonged use of a GPS tracking device constitutional in 2010. United States v. Pineda–Moreno, 591 F.3d 1212 (9th Cir.2010). And in doing so, the court relied almost exclusively on Knotts. This after-the-fact ruling provides further support that the agents acted with an objectively reasonable good-faith belief—a court would be hard-pressed to place culpability on the agents for their actions in 2009 when, one year later, three judges of the Ninth Circuit relied on Knotts to conclude that the prolonged use of a GPS tracking device did not violate the Fourth Amendment. . . .

The dissent in Davis, criticizing the majority’s focus on law enforcement culpability, foresaw the result in this case. Justice Breyer opined that under the majority view “an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable that an officer who follows erroneous ‘binding precedent.’ Nor is an officer more culpable where circuit precedent is simply suggestive rather than ‘binding.’ “ Davis, 131 S.Ct. at 2439. Given the state of the law in 2009, the court simply finds no sufficiently culpable conduct by the agents. As Justice Breyer wrote, “if the Court means what it now says,” id., suppression of the evidence in this case would yield no “appreciable deterrence” and is thus unwarranted.

It seems a bit strange to extend the rationale of Davis (something Justice Sotomayor warned against in her Davis concurrence) without first raising the fundamental question of whether the mosaic theory is a viable theory of Fourth Amendment protection. But the possibility of this kind of extension of Davis was always lurking in the background of the Davis case. The Davis court offered a broad rationale to support a narrow holding, and then justified its holding against critiques by emphasizing its narrowness: It was inevitable that at least some courts would follow the broad rationale of Davis rather than stick to the limits of its narrow holding.

I have just posted a new draft article, The Mosaic Theory of the Fourth Amendment, which is forthcoming in the Michigan Law Review. Here’s the abstract:

In the Supreme Court’s recent decision on GPS monitoring, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions have always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and dilemmas that a mosaic theory would raise, and it analyzes the ways in which the mosaic theory departs from prior understandings of the Fourth Amendment. It makes three major points. First, the mosaic theory offers a dramatic departure from existing law. Second, implementing the theory requires courts to answer a long list of novel and challenging questions. Third, the benefits of the mosaic theory are likely to be modest, and its challenges are likely to be great. Courts should approach the mosaic theory with caution, and may be wise to reject it entirely.

I have a few weeks to work on the article before I submit a version to editors to begin the formal editing process, so comments are very welcome. (That’s especially true because this article was written in the brief window after Jones was handed down before the March submission season, so it is less set than most articles might be at this stage.) There is no need to catch typos or anything like that, as the editors will look for that, but thoughts on the substantive argument are very welcome.

I have posted the short opinion (dated March 23) from Magistrate Judge Collings of the District of Massachusetts here. It largely adopts the reasoning of United States v. Graham from the District of Maryland, which I blogged about here. In my view, Judge Collings was correct to issue the order without probable cause for a second reason: The Fourth Amendment questions are not yet ripe for review, as I argue in this amicus brief I filed recently in the Fifth Circuit.

The various opinions in United States v. Jones (aka the GPS case) raise tons of fascinating new questions for Fourth Amendment law. I explore some of those issues in a forthcoming article, The Mosaic Theory of the Fourth Amendment, which will appear in the Michigan Law Review and which I hope to post an early draft of soon. In the meantime, here are three cases just from the last week or so on the implications of Jones.

1) United States v. Anderson-Bagshaw, 2012 WL 774964 (N.D.Ohio, March 8, 2012). This case considers whether Jones applies to video surveillance. The defendant was claiming disability benefits while running an alpaca farm. The government installed a camera on a telephone pole adjacent to the defendant’s property and recorded video of the property continuously for 24 days. The video was streamed over the Internet to a federal agent, who watched the video stream 3-5 hours a day and used some of it for evidence at trial. The use of the camera did not trespass on the suspect’s property. Held by District Judge Gwin: The mosaic theory does not apply, because the majority in Jones did not adopt the mosaic theory.

If the majority [in Jones] had adopted a mosaic theory condemning uninterrupted GPS surveillance, and further extended that theory to non-trespassory surveillance, then perhaps a substantial question of law might have been presented as to the constitutionality of the continuously streamed footage. Perhaps then the constitutionality of the 24–day surveillance would be a close question, or one that could go either way. But no such theory was adopted, and the pole camera footage remains soundly within the purview of caselaw reviewed in the Court’s denial of Bagshaw’s motion to suppress and motion to reconsider, under which authority this is not a close question.

2) State v. Zahn, — N.W.2d —-, 2012 WL 862707 (S.D. March 14, 2012). Under facts essentially identical to those in Jones, the Supreme Court of South Dakota concludes that the facts amount to a search both under the Jones trespass theory and also under the mosaic theory, essentially adopting both the majority and concurring opinions in Jones. On the latter point, the Court states:

When the use of a GPS device enables police to gather a wealth of highly-detailed information about an individual’s life over an extended period of time, its use violates an expectation of privacy that society is prepared to recognize as reasonable. The use of a GPS device to monitor Zahn’s activities for twenty-six days was therefore a Fourth Amendment search under the Katz “reasonable expectation of privacy” test.

The Court also concludes that a warrant is required for GPS surveillance, although its analysis is cursory. The opinion is not entirely clear whether the Court is concluding that a warrant is required for a Jones trespass search, a Katz mosaic search, or both, although the one sentence seems to be suggesting that it is focused on a warrant requirement for a mosaic search. Here’s the Court’s full analysis:

The United States Supreme Court has carved out a number of “well-delineated exceptions” to the warrant requirement. Katz, 389 U.S. at 357, 88 S.Ct. at 514. The Court has found that the presence of exigent circumstances excuses a warrantless search and that a warrantless search and seizure of an individual for the limited purpose of briefly investigating reasonably suspicious behavior is permissible. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Consent searches, searches conducted incident to a valid arrest, automobile searches, and searches of items in plain view are also allowed without a warrant. None of these exceptions readily applies to the use of a GPS device to monitor an individual’s activities over an extended period of time.

Justice Zinter concurs to complain that the Court should not have addressed the mosaic theory: “Because we are deciding this case under the federal Constitution, we should not utilize a Fourth Amendment test that the majority of the Supreme Court has expressly declined to apply.”

3) United States v. Nwobi, 2012 WL 769746 (C.D. Cal. March 7, 2012). Under facts essentially identical to those of Jones, Judge King holds that the exclusionary rule does not apply because Ninth Circuit precedent from 1999 held that it was neither a search nor a seizure to install a GPS device on a car. See United States v. McIver, 186 F.3d 1119, 1126 (9th Cir.1999). Under the latest good-faith exception case, Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), the officer is deemed to have relied in good faith on McIver and the exclusionary rule does not apply.

Earlier today, I sent off to law reviews a new draft article on the implications of the mosaic theory of the Fourth Amendment introduced in the GPS case, United States v. Jones — and specifically the majority opinion for the DC Circuit (under the name United States v. Maynard ) and the concurring opinions of Justice Alito and Sotomayor. A recent speech by the general counsel of the FBI suggests that I’m not the only one who thinks that the mosaic theory is a really big deal — and a lot more complicated than many realize:

A Supreme Court decision has caused a “sea change” in law enforcement, prompting the FBI to turn off nearly 3,000 Global Positioning System (GPS) devices used to track suspects, according to the agency’s general counsel.

When the decision-U.S. v. Jones-was released at the end of January, agents were ordered to stop using GPS devices immediately and told to await guidance on retrieving the devices, FBI general counsel Andrew Weissmann said in a recent talk at a University of San Francisco conference. Weissmann said the court’s ruling lacked clarity and the agency needs new guidance or it risks having cases overturned . . .

Weissmann said it wasn’t Scalia’s majority opinion that caused such turmoil in the bureau, but a concurring opinion written by Justice Samuel Alito. Alito, whose opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, agreed with the Court’s conclusion in the case but wrote separately because his legal reasoning differed from the majority.
Alito focused not on the attachment of the device, but the fact that law enforcement monitored Jones for about a month. Alito said “the use of longer-term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” . . .

In his talk at a University of San Francisco Law Review Symposium, Weissmann suggested that Alito’s concurrence means that several members of the court are concerned with long-term surveillance by technologies beyond GPS systems and that the FBI needs new guidance in order to ensure that evidence does not get thrown out.

“I just can’t stress enough,” Weissmann said, “what a sea change that is perceived to be within the department.”

He said that after agents were told to turn off the devices, his office had to issue guidance on how some of the devices that had been used without a warrant could actually be retrieved. “We had to come up with guidance about you could locate [the devices] without violating the law,” Weissmann said. “It wasn’t obvious that you could turn it back on to locate it because now you needed probable cause or reasonable suspicion to do that.”

Weissmann said the FBI is working on two memos for agents in the field. One seeks to give guidance about using GPS devices. A second one targets other technologies beyond the GPS, because, Weissmann said, “there is no reason to think this is just going to end with GPS.”

“I think the court did not wrestle with the problems their decision creates,” Weissmann said. “Usually the court tends to be more careful about cabining its decisions” and offering useful guidance. But in the Jones opinion, he said, the court didn’t offer much clarity or any bright line rules that would have been helpful to law enforcement.

“Guidance which consist of ‘two days might be good, 30 days is too long’ is not very helpful,” Weissmann said.

Good for Weissmann for speaking about these issues publicly. The FBI has tended to be too secretive about these issues in the past, I think. Anyway, I hope to post a draft of my new article in a week or two, and I’ll post a link to it at the blog when I do.