GPS Tracking (podcast transcript)

Miller: Hi, I’m Tim Miller, I’m here with Mr. Keith Hodges. Mr. Hodges and I are instructors within the Legal Division at the Federal Law Enforcement Training Center in Glynco, Georgia. Mr. Hodges’ is going to talk to us a little bit today about GPS. Before we launch into the law and other aspects on GPS, I understand that you wrote an article on this issue. Is that correct?

Hodges: I did Tim and you can see the full article that covers this area in greater detail with lots of handouts and that article is at the FLETC Legal Division website and let me give our listeners the address for that website it’s www.fletc.gov/legal. Once you get to that page if you look under the resources tab, you’ll see that article plus other interesting information.

Miller: Keith, I’ve got to admit, what I know about GPS is this; it’s got something to do with satellites. Uh, tell me a little bit about GPS and how it might be useful to a police officer.

Hodges: Okay. GPS stands for Global Position Satellite. The way it works is simply this, there are a number of very expensive satellites in orbit over the earth. These satellites continually send signals that GPS receivers can receive. Based on the data from the satellite signal, a GPS receiver calculates its own location and displays that location for the user. Its going to be basically longitude and latitude.

To make GPS easier to use, the longitude and latitude is displayed over a map which will show terrain features, roads, streets and even particular addresses. Now even without using GPS to track suspects, GPS receivers benefit officers because it assist them in pinpointing a location and preserving in memory on the device where that location is.

That location can be a crime scene or maybe it’s a place that officers want to search later and they want to be sure they can be able, where they will be able to get back to that location. And there’s lots of examples where, I mean, simple examples where GPS can help an officer. Let’s say a Fish and Wildlife officer locate a hide where people are conducting or hunting in an illegal way or they’re finding illegal kill. Maybe they go into the woods and they come across a marijuana field or a meth lab. If they want to be able to document exactly where that is because it’s not going to be at some street address, they can go ahead and mark that place as a weigh point. That GPS device will remember where it is and can display that data later on.

I think that GPS is also useful for officers to use it the way that most consumers do and by doing that an officer can create turn by turn directions to get to a particular location; maybe the officer’s in a particular place or town that he’s not familiar with and needs to get somewhere. So those are the basic fundamental uses of GPS in much of a way that a consumer would use it.

Miller: How else might GPS be help to a law enforcement officer? I mean, could they track people with it?

Hodges: Yeah, and I think that’s the thrusts of where we want to go. And here’s how tracking works. Officers can take a GPS receiver and covertly attach it to a vehicle. The receiver is set up to at particular, pre-set, pre-determined intervals. It calculates its location and remembers it. That data is recorded and then later on the officers can download that information from the device, put it on a computer and display when and where the vehicle was. It can even show a vehicles particular route, speed and the life.

More sophisticated installations are going to have equipment that will immediately translate the location through a cell phone on another wireless connection and officers can stand back and live track the vehicle either through a notebook computer that receives a cell phone signal or I’ve seen set ups where officers back in their offices or maybe even cross country can all track the same vehicle at the same time and we call that live tracking.

Miller: It’s got to have some limitations; it can’t be all perfect.

Hodges: Nothings perfect and there are both technical and some legal implications. Now obviously the departments are going to have to obtain the equipment and I recommend that they get proper training from the manufacture on how to use it. There’s also a course at the Federal Law Enforcement Training Center called the Covert Electronic Tracking Program and you can go to the same FLETC website without the legal part and you can sign up for that course or get information about it.

Another limitation with GPS is that current technology requires that satellite antenna or the GPS satellite antenna be exposed, so it’s able to see the sky. If it can’t see the sky, it can’t get a satellite signal. If the receiver, or more accurately, if the receiver antenna’s at a place where it can’t do that like a parking garage or a heavily forested area then GPS won’t work or if it does it’s going to be severally limited.

Miller: There’s also there’s got to be some legal implications.

Hodges: There always is. It’s our friend the 4th Amendment that comes back again. It’s all about REP, reasonable expectations of privacy. I think the easiest way to look at this is to have somebody who wants to do a GPS installation and use it for tracking, that officer should ask himself or herself three questions. First, do I need to intrude into a REP area to get to the vehicle to install the equipment? Second question is do I need to intrude into the vehicle’s REP to install the equipment? And the third question is will the officer be tracking a vehicle as it moves into a REP area? So, if the answer to any of those three questions is yes, then we are going to need a warrant. If the answer to all three of those questions is no, then we don’t need a warrant.

Before we get too far into the details, let me say that this Podcast deals with federal law. State law can differ and some of the differences are outlined in that webpage article that we talked about earlier.

Miller: Well let’s take a look at that first question, location of the vehicle at the time of the installation. Tell me a little bit about that.

Hodges: Well you and Jenna Solari have covered this already in your 4th Amendment Podcast series. And the way it goes is this; if the vehicle is located in an area where there’s REP, such as on a curtilage, the officers are going to need a warrant to get into the REP area to install the equipment. On the other hand, if the vehicle is parked out on a public road, a parking garage or even a road in a gated community there is no intrusion into REP to get that to the um vehicle.

I would add that most federal cases hold that there is no REP in ordinary driveways leading up to a residence, but I would certainly recommend an officers speak to their AUSA before doing an warrant less installation on a vehicle that’s parked in an owners driveway.

Miller: Okay, let’s look at that second question, now REP on the vehicle.

Hodges: Right. In some cases all the GPS tracking equipment can be installed on the exterior of the vehicle and we’re not having to intrude in the vehicle’s interior or the trunk or taping into the vehicle’s wiring. In that case there is no intrusion into a REP area because there’s no REP as to the exterior of a vehicle. If officers do have to go into interior of the vehicle or the trunk or tap into the vehicle’s wiring, they we are going to have an intrusion into a REP area and then a warrant is going to be required.

Miller: Now you told me that you can use this GPS system to actually track the vehicle. Correct?

Hodges: That’s right.

Miller: Talk to me about this, this third issue location of the vehicle in terms of where it might move.

Hodges: Now, federal law does not require a warrant to GPS monitor a vehicle as it moves over public roads and highways. If you are going to go tracking in public roads or highways I should say if you’re going to track in a REP area then a warrant is required. Usually this last factor isn’t very important in GPS tracking and that’s because GPS doesn’t work indoors and most REP areas for a vehicle is going to be in some covered area like a garage or a large warehouse complex. If you get into RF tracking that would be a different matter but we’re not talking about RF tracking today, we’re just talking about GPS.

Miller: Okay, you covered a lot of information. Can you, can you review these three questions please?

Hodges: Yep, I think that’s a good idea. First question is do I need to intrude into a REP area to get to the vehicle to install the equipment? Second, do I need to intrude into the vehicle’s REP to install the equipment; and third, will the officer be tracking the vehicle as it moves into a REP area? And again the math on this is pretty simple. If the answer to all of the questions is no, then under federal law I don’t need a warrant. If the answer to any of the three questions is yes, then I am going to going to need a warrant.

Miller: Hey, does Title III wire taps have anything to do with this tracking device?

Hodges: Tim, it doesn’t. In fact, Title III specifically excludes tracking devices from its coverage.

Miller: In your GPS article I noticed that you discussed a new rule of Federal Rules of Criminal Procedures that will address tracking devices. Can you talk to us about that?

Hodges: Yes. It’s a very helpful rule that shows that the Federal Rules of Criminal Procedures are keeping up with technology. Now on December the 1st of this year, 2006, unless Congress decides otherwise, there’s going to be a new rule 41 of Federal Rules of Criminal Procedures and that rule has some changes in it and most importantly for this discussion, it describes what officers must do to get a warrant in order to do tracking.

I think it’s important to say that this rule does not say when a tracking warrant is required, but what it does do is it lays out the paperwork and the procedure requirements if a warrant’s necessary. Now the GPS article we mentioned has all the details and it also has a copy of the actual rule, plus some documents that show how the rule changes, but let me kind of give you the big picture, the highlights.

First the magistrate in the district that the device is to be installed is the one that can issue the tracking warrant. The cool part is that once the warrant is issued then the tracking is lawful anywhere to include areas outside the district and that kind of mirrors 18 U.S. Code §3117, the tracking order statute.

Second, any warrant that’s obtained must be installed within ten days unless the magistrate permits otherwise. And officers will recognize that basically mirrors the execution period for a search warrant.

Third, the tracking warrant’s good for 45 days and extensions can be granted.

Lastly within ten days after the tracking is completed the officers have to make a return on the tracking data to the person that was tracked. Officers can also, I should say, get a delay in that return requirement if they can show that letting the subject know about the tracking data will jeopardize the investigation, jeopardize evidence or be a danger to the officers.

Miller: And when does this go into effect again?

Hodges: Tim, unless Congress stops it, it goes into effect on December 1, 2006.

Miller: Do you have anything else for us?

Hodges: Again Tim I’m going to invite the listeners to go to the website to see the tracking article and the other Podcasts. If you go to www.fletc.gov/legal that’s where all these Podcasts are in the Podcasts tab and the GPS article information is under the resources tab. Now for those listeners from state and local law enforcement, please remember that state law can differ from federal law so far we’ve had courts in Washington, Oregon and New York that would tell us that their rules are a little more strict than federal law. Other than that Tim I recommend that if you’re interested in GPS download, read and you’re welcome to share that article we just talked about.

Miller: Well you learn something everyday. Mr. Hodges, I want to thank you very much and I hope I’ll see you again here.

Hodges: Thank you Tim and thanks for having me.