U.S. v. Garcia

• Decision Date: 02 February 2007
• Docket Number: No. 06-2741.,06-2741.
• Citation: 474 F.3d 994
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernardo GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

474 F.3d 994

UNITED STATES of America, Plaintiff-Appellee, v. Bernardo GARCIA, Defendant-Appellant.

No. 06-2741.

United States Court of Appeals, Seventh Circuit.

Argued January 10, 2007.

Decided February 2, 2007.

David Reinhard (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Patrick J. Stangl (argued), Stangl Law Offices, Madison, WI, for Defendant-Appellant.

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 unconstitutional 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, 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 being 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 installation 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 district judge, however, found that they had had a reasonable suspicion that the defendant was engaged in 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 Amendment.

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, 98 S.Ct. 1970, 56 L.Ed.2d 525 (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, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (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 doctrine 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 independence of magistrates in ex parte proceedings for the issuance of search warrants may be doubted, there is a practical 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 investigation 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, 103 S.Ct. 1081, 75 L.Ed.2d 55 (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, 103 S.Ct. 1081; see also United States v. Karo, 468 U.S. 705, 713-14, 104 S.Ct. 3296, 82 L.Ed.2d 530 (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 (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 required. 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 geophysical coordinates. The only difference is that in the imaging 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...