United States v. Garcia, Bernardo ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2741
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BERNARDO GARCIA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05-CR-155-C—Barbara B. Crabb, Chief Judge.
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ARGUED JANUARY 10, 2007—DECIDED FEBRUARY 2, 2007
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Before POSNER, MANION, and SYKES, Circuit Judges.
POSNER, Circuit Judge. The defendant appeals from his
conviction for crimes relating to the manufacture of
methamphetamine. The only issue is whether evidence
obtained as a result of a tracking device attached to his
car should have been suppressed as the fruit of an uncon-
stitutional search.
The defendant had served time for methamphetamine
offenses. Shortly after his release from prison, a person
who was a known user of meth reported to police that the
defendant had brought meth to her and her husband,
2 No. 06-2741
consumed it with them, and told them he wanted to start
manufacturing meth again. Another person told the
police that the defendant had bragged that he could
manufacture meth in front of a police station without be-
ing caught. A store’s security video system recorded
the defendant buying ingredients used in making the drug.
From someone else the police learned that the defendant
was driving a borrowed Ford Tempo. They went looking
for it and found it parked on a public street near where
the defendant was staying. The police placed a GPS (global
positioning system) “memory tracking unit” underneath
the rear bumper of the Ford. Such a device, pocket-sized,
battery-operated, commercially available for a couple of
hundred dollars (see, e.g., Vehicle-Tracking, Incorporated,
“GPS Vehicle Tracking with the Tracking Key,”
www.vehicle-tracking.com/products/Tracking_Key.html,
visited Jan. 21, 2007), receives and stores satellite
signals that indicate the device’s location. So when the
police later retrieved the device (presumably when the
car was parked on a public street, as the defendant does
not argue that the retrieval involved a trespass), they
were able to learn the car’s travel history since the installa-
tion of the device. One thing they learned was that the
car had been traveling to a large tract of land. The officers
obtained the consent of the tract’s owner to search it and
they did so and discovered equipment and materials used
in the manufacture of meth. While the police were on the
property, the defendant arrived in a car that the police
searched, finding additional evidence.
The police had not obtained a warrant authorizing them
to place the GPS tracker on the defendant’s car. The dis-
trict judge, however, found that they had had a rea-
sonable suspicion that the defendant was engaged in
No. 06-2741 3
criminal activity, and she ruled that reasonable suspicion
was all they needed for a lawful search, although she
added that they had had probable cause as well. The
defendant argues that they needed not only probable
cause to believe that the search would turn up contraband
or evidence of crime, but also a warrant. The government
argues that they needed nothing because there was no
search or seizure within the meaning of the Fourth Amend-
ment.
The Fourth Amendment forbids unreasonable searches
and seizures. There is nothing in the amendment’s text
to suggest that a warrant is required in order to make a
search or seizure reasonable. All that the amendment
says about warrants is that they must describe with
particularity the object of the search or seizure and must
be supported both by an oath or affirmation and by
probable cause, which is understood, in the case of
searches incident to criminal investigations, to mean
probable cause that the search will turn up contraband or
evidence of crime. Zurcher v. Stanford Daily, 436 U.S. 547,
554-55 (1978). The Supreme Court, however, has created a
presumption that a warrant is required, unless infeasible,
for a search to be reasonable. E.g., United States v. Leon,
468 U.S. 897, 913-14 (1984); Mincey v. Arizona, 437 U.S. 385,
390 (1978); Henry v. United States, 361 U.S. 98, 100 (1959);
see Nicholas v. Goord, 430 F.3d 652, 678 (2d Cir. 2005).
“Although the framers of the Fourth Amendment were
more fearful that the warrant would protect the police
from the citizen’s tort suit through operation of the doc-
trine of official immunity than hopeful that the warrant
would protect the citizen against the police, see [Telford]
Taylor, Two Studies in Constitutional Interpretation 23-43
(1969), and although the effective neutrality and independ-
4 No. 06-2741
ence of magistrates in ex parte proceedings for the issu-
ance of search warrants may be doubted, there is a practi-
cal reason for requiring warrants where feasible: it forces
the police to make a record before the search, rather than
allowing them to conduct the search without prior in-
vestigation in the expectation that if the search is fruitful
a rationalization for it will not be difficult to construct,
working backwards.” United States v. Mazzone, 782 F.2d
757, 759 (7th Cir. 1986). But of course the presumption
in favor of requiring a warrant, or for that matter the
overarching requirement of reasonableness, does not
come into play unless there is a search or seizure within
the meaning of the Fourth Amendment.
The defendant’s contention that by attaching the memory
tracking device the police seized his car is untenable. The
device did not affect the car’s driving qualities, did not
draw power from the car’s engine or battery, did not
take up room that might otherwise have been occupied
by passengers or packages, did not even alter the car’s
appearance, and in short did not “seize” the car in any
intelligible sense of the word. But was there a search?
The Supreme Court has held that the mere tracking of a
vehicle on public streets by means of a similar though less
sophisticated device (a beeper) is not a search. United States
v. Knotts, 460 U.S. 276, 284-85 (1983). But the Court left
open the question whether installing the device in the
vehicle converted the subsequent tracking into a search.
Id. at 279 n. 2; see also United States v. Karo, 468 U.S. 705,
713-14 (1984). The courts of appeals have divided over the
question. Compare United States v. McIver, 186 F.3d 1119,
1127 (9th Cir. 1999), and United States v. Pretzinger, 542 F.2d
517, 520 (9th Cir. 1976) (per curiam), holding (and United
States v. Michael, 645 F.2d 252, 256 and n. 11 (5th Cir. 1981)
(en banc), and United States v. Bernard, 625 F.2d 854, 860-61
No. 06-2741 5
(9th Cir. 1980), intimating) that there is no search, with
United States v. Bailey, 628 F.2d 938, 944-45 (6th Cir. 1980);
United States v. Shovea, 580 F.2d 1382, 1387-88 (10th Cir.
1978), and United States v. Moore, 562 F.2d 106, 110-12 (1st
Cir. 1977), holding the contrary. Several of the cases
actually take intermediate positions, such as requiring
reasonable suspicion rather than probable cause (a possible
interpretation of Michael), or probable cause but no
warrant—Shovea and Moore. This court has not spoken to
the issue.
If a listening device is attached to a person’s phone, or
to the phone line outside the premises on which the phone
is located, and phone conversations are recorded, there is
a search (and it is irrelevant that there is a trespass in
the first case but not the second), and a warrant is re-
quired. But if police follow a car around, or observe its
route by means of cameras mounted on lampposts or of
satellite imaging as in Google Earth, there is no search.
Well, but the tracking in this case was by satellite. Instead
of transmitting images, the satellite transmitted geophysi-
cal coordinates. The only difference is that in the imag-
ing case nothing touches the vehicle, while in the case
at hand the tracking device does. But it is a distinction
without any practical difference.
There is a practical difference lurking here, however. It
is the difference between, on the one hand, police trying
to follow a car in their own car, and, on the other hand,
using cameras (whether mounted on lampposts or in
satellites) or GPS devices. In other words, it is the differ-
ence between the old technology—the technology of the
internal combustion engine—and newer technologies
(cameras are not new, of course, but coordinating the
images recorded by thousands of such cameras is). But GPS
6 No. 06-2741
tracking is on the same side of the divide with the sur-
veillance cameras and the satellite imaging, and if what
they do is not searching in Fourth Amendment terms,
neither is GPS tracking.
This cannot be the end of the analysis, however, because
the Supreme Court has insisted, ever since Katz v. United
States, 389 U.S. 347 (1967), that the meaning of a Fourth
Amendment search must change to keep pace with the
march of science. So the use of a thermal imager to reveal
details of the interior of a home that could not otherwise
be discovered without a physical entry was held in Kyllo
v. United States, 533 U.S. 27, 34 (2001), to be a search with-
in the meaning of the Fourth Amendment. But Kyllo does
not help our defendant, because his case unlike Kyllo is
not one in which technology provides a substitute for a
form of search unequivocally governed by the Fourth
Amendment. The substitute here is for an activity, namely
following a car on a public street, that is unequivocally
not a search within the meaning of the amendment.
But while the defendant’s efforts to distinguish the
GPS case from the satellite-imaging and lamppost-camera
cases are futile, we repeat our earlier point that there is a
difference (though it is not the difference involved in
Kyllo) between all three of those situations on the one
hand and following suspects around in a car on the other.
The new technologies enable, as the old (because of
expense) do not, wholesale surveillance. One can imagine
the police affixing GPS tracking devices to thousands of
cars at random, recovering the devices, and using digital
search techniques to identify suspicious driving pat-
terns. One can even imagine a law requiring all new cars
to come equipped with the device so that the govern-
ment can keep track of all vehicular movement in the
No. 06-2741 7
United States. It would be premature to rule that such a
program of mass surveillance could not possibly raise a
question under the Fourth Amendment—that it could
not be a search because it would merely be an efficient
alternative to hiring another 10 million police officers to
tail every vehicle on the nation’s roads.
Of course the amendment cannot sensibly be read to
mean that police shall be no more efficient in the twenty-
first century than they were in the eighteenth. United States
v. Knotts, supra, 460 U.S. at 283-84. There is a tradeoff
between security and privacy, and often it favors secu-
rity. Even at the height of the “Warren Court,” the Court
held over a strong dissent by Justice Brennan that the
planting of an undercover agent in a criminal gang does
not become a search just because the agent has a trans-
mitter concealed on his person, even though the invasion
of privacy is greater when the suspect’s words are re-
corded and not merely recollected. Lopez v. United States,
373 U.S. 427, 439 (1963).
Yet Chief Justice Warren, while concurring in the judg-
ment in Lopez, remarked “that the fantastic advances in
the field of electronic communication constitute a great
danger to the privacy of the individual; that indiscrim-
inate use of such devices in law enforcement raises grave
constitutional questions under the Fourth and Fifth
Amendments; and that these considerations impose a
heavier responsibility on this Court in its supervision of
the fairness of procedures in the federal court system.” Id.
at 441. These “fantastic advances” continue, and are giv-
ing the police access to surveillance techniques that are
ever cheaper and ever more effective. Remember the
beeper in Knotts? “Officers installed a beeper inside a five-
gallon container of chloroform . . . [and] followed the car
8 No. 06-2741
in which the chloroform had been placed, maintaining
contact by using both visual surveillance and a monitor
which received the signals sent from the beeper.” United
States v. Knotts, supra, 460 U.S. at 278. That was only a
modest improvement over following a car by means of
unaided human vision.
Technological progress poses a threat to privacy by
enabling an extent of surveillance that in earlier times
would have been prohibitively expensive. Whether and
what kind of restrictions should, in the name of the Con-
stitution, 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. So far as
appears, the police of Polk County (a rural county in
northwestern Wisconsin), where the events of this case
unfolded, are not engaged in mass surveillance. They do
GPS tracking only when they have a suspect in their
sights. They had, of course, abundant grounds for sus-
pecting the defendant. Should government someday de-
cide to institute programs of mass surveillance of vehicu-
lar movements, it will be time enough to decide whether
the Fourth Amendment should be interpreted to treat
such surveillance as a search. Cf. Zurcher v. Stanford Daily,
supra, 436 U.S. at 566.
AFFIRMED.
No. 06-2741 9
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-2-07