Is The Warrant-less Use of "GPS" Surveillance Unconstitutional?

Is The Warrant-less Use of “GPS” Surveillance Unconstitutional?  That is the question Arizona Court of Appeals Division One recently answered. Thomas Mitchell appealed a conviction of transportation of dangerous drugs for sale and other related drug charges. (State v Mitchell).  Mitchell argued that the trial court erred in allowing the State to enter evidence the authorities acquired during a vehicle search.  A vehicle search which, according to Mitchell was the result of a warrant-less use of GPS to find Mitchell.  The Court reversed the conviction stating that the installation, continued presence and use of a GPS device to watch Mitchell’s movement constituted an unlawful search and seizure.  The Court relied on the recent SCOTUS opinion United States v. Jones.

Thru the use of several informants, authorities learned that Mitchell routinely traveled between Phoenix and Dewy-Humboldt.  Sheriffs observed Mitchell and determined he used several different vehicles to make these runs, including a Kia Sportage.  On May 5, a deputy sheriff attached a GPS device to the undercarriage of the Sportage without the owner’s consent and without a warrant.  On one occasion the deputy tracked the vehicle driving back from Phoenix to the Dewy-Humboldt area.  The deputy located the vehicle, then followed and intercepted the vehicle at the owner’s residence.  The deputy inquired with Mitchell where he was coming from, Mitchell provided false information about the origin of his travel.  The deputy asked Mitchell and the vehicle owner whether he could search the car, both denied.  The deputy then requested a K-9 to search the vehicle.  The dog alerted to the vehicle, deputies searched and found methamphetamine and several pounds of marijuana.

The State argued several factors to differentiate this case from Jones: Mitchell did have standing to bring to challenge the search as he did not own the vehicle, was not in possession when the deputy placed the GPS and he was not the exclusive driver.  The Arizona Court looked at several factors s to decide if Mitchell had standing as he did not own the vehicle and the device was installed without owner consent when the defendant  :

  1. drives it sporadically with the knowledge of police and permission of the owner;
  2. lawfully posses the vehicle before the first trespassory act (installation of GPS) occurred and comes into lawful possession while the device is still in place; and
  3. is the target of the GPS surveillance.

The Court determined he did have standing as he was in lawful possession before the installation and sporadically thereafter, the police knew he was using the vehicle and he was the target of the surveillance.

The Court ultimately found that State’s trespassory placement of the GPS constituted a search under the Fourth Amendment, thus subjecting it to a search warrant.  Which apparently during trial the deputy testified he had the opportunity to do, but chose not to.