Rethinking GPS Devices and Fourth Amendment Rights

Allison W. Chan, Loyola Law School Los Angeles

Abstract

Technology advances rapidly. Constant innovation, however, comes at a cost. Law enforcement is able to engage in wholesale surveillance of suspects by attaching Global Positioning System (“GPS”) devices to their vehicles. Attaching GPS devices to those vehicles has few, if any, restrictions. Law enforcement does not need a warrant. Officers may legally attach a GPS device anytime a vehicle is in “public space.” However, the problem is that courts have been unable to agree on what constitutes public space, especially with regards to residential curtilage. In 2010, the Ninth Circuit held in United States v. Pineda Moreno, 591 F.3d 1212 (9th Cir. 2010), that a driveway must be detailed in ways that would show that the owner expected the driveway to be private property. Such demarcations include enclosures, barriers, means that would reduce visibility from the street, or signs that say “No Trespassing.” Unfortunately, this renders Fourth Amendment jurisprudence prey to differences in suspects’ socioeconomic status because the rich can better afford to safeguard their privacy than the poor can. The U.S. Supreme Court must take measures, including expanding the zone of privacy, that will render privacy rights and people equal in the eyes of the Constitution.