Foremost, my apologies to readers for a belated posting. Finishing law school, gathering material for the Bar Exam, and training for a Half-Ironman has reduced my time allowances for pet projects sharply.
Fortunately, there have not been many notable 4th Amendment cases coming out of the Federal Circuit in the last few days, so I have somewhat of an excuse for non-performance (smile).
However, this morning I caught wind of a case out of the U.S. Court of Appeals for the Eighth Circuit, pertaining to GPS surveillance, and Miranda warnings to a person whose primary language is not English.
Jouse Acosta Marquez was involved in a marijuana trafficking ring, which led to local Iowa authorities determining that the ring regularly used three (3) pick-up trucks, one of which was a white 2006 Ford with various characteristics that are immaterial.
The police affixed a GPS device on the bumper of the white Ford, while it was parked in a Wal-Mart parking lot in Des Moines. Investigators changed the battery on the GPS seven times during the course of the investigation, all the while the truck was parked a public place.
Investigators also acquired Federal wiretaps on two mobile phones, from which they intercepted hundreds of calls between the defendant and other members of the drug trafficking conspiracy.
After the police secured a search warrant on multiple locations in Colorado and Iowa, which turned up, inter alia, assault rifles, marijuana paraphernalia, and other incriminating evidence, the police knew they were on to something. On a traffic stop the same day, the police arrested the defendant, at which time he was read his Miranda rights, and signed a form waiving his right to remain silent. He admitted he had purchased small amounts of marijuana, and he had driven the trucks to and from Denver for drop-offs.
During a pre-trial suppression hearing, the defendant argued that his poor English prevented him from making a "knowing and voluntary waiver" of his Miranda rights. He also argued that the GPS violated his Fourth Amendment rights. Incidentally, the defendant's girlfriend, Nicole May, testified that the defendant spoke "[c]onversational English".
In light of this evidence, the Court concluded that the defendant had the capacity to knowingly and voluntarily waive his Miranda rights.
As to the issue on 4th amendment infringement, the Court held, consistent with U.S. v. Gomez, 16 F.3d 254, 256 (1994), that he did not have a reasonable expectation of privacy in the area searched, as the defendant "neither owned nor drove the Ford and was only an occasional passenger therein..."
Perhaps the most contentious part of Justice Wollman's Opinion, is his reasoning why the placement of the GPS device on the Ford was constitutional; "The installation was non-invasive and occurred when the vehicle was parked in public. The police reasonably suspected that the vehicle was involved in interstate transport of drugs. The vehicle was not tracked while in private structures or on private lands. The device merely allowed the police to reduce the cost of lawful surveillance."
There are three points of consideration I find to be noteworthy;
1) The permissive scheme of the police to affix a GPS to a vehicle, based on mere "reasonable suspicion" appears to be a liberal grant of authority to law enforcement, without any possible recourse by the operator of the vehicle.
2) While U.S. v. Knotts, 460 U.S. 276 (1983), tells us that a person traveling via automobile on public streets has no reasonable expectation of privacy in his movements from one locale to another ( Knotts at 281), how ought a court address a stationary car in a public parking lot? Does the public nature of the location trump the vehicle itself?
3) What does it mean that a vehicle can be subject to a GPS application, as long as the vehicle is in a public place, and te police have reasonable suspicion? And what weight does the “cost” of lawful police surveillance have when juxtaposed with the “weight” of civil liberties?
