The Wire: Is Cell Phone GPS Tapping a Search? - U.S. Tenth Circuit
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The Wire: Is Cell Phone GPS Tapping a Search?

Samuel Barajas is an unhappy drug smuggler. He was sentenced to multiple life sentences, followed by more prison time and supervised release (stand guard at the mausoleum!), after getting caught up in an investigation of Jesus Dominguez, the leader of the drug ring. Though the ring initially targeted and tapped the phones of Dominguez, the investigators eventually learned about a mysterious figure named "Samy," later identified as Samuel Barajas.

The investigators sought wiretaps on Barajas' phone. Though the requested wiretaps for Barajas did not ask for GPS (the ones for Dominguez did), the court's orders authorized the use of GPS pinging, which uses cell phone signals and GPS chips to locate the phone. The GPS technique eventually led investigators to drugs and money in Kansas City, as well as Barajas, who was in San Diego.

The Wiretap

In order to obtain a wiretap, the government must show necessity by demonstrating that traditional investigative techniques have failed. Examples of these techniques include standard surveillance, questioning and interrogating witnesses or suspects, grand juries, search warrants, infiltrating criminal organizations with confidential informants and undercover officers, pen registers, and trap and trace devices.

In other words, they take wire taps pretty seriously. However, not every single conceivable alternative has to be exhausted before a wire is appropriate.

Here, the affidavits outlined why some of the techniques, such as snitches and surveillance, failed and why other techniques, like dumpster diving, would be ineffective. Furthermore, discovering the size and scope of a widespread conspiracy adds additional justification for wiretap authorization.

GPS Pinging

Barajas argues that the GPS pinging is a search, which was not supported by probable cause, and does not fall under the good faith exception to the exclusionary rule.

Both the district court and Tenth Circuit assumed, without deciding, that GPS pinging constitutes a search. They also agreed that though there were no explicit requests for GPS, other information and facts in the affidavit could support a probable cause finding. After all, warrants are often for searches of multiple locations. Facts sufficient for one search might also justify the second.

However, the two courts differed on outcome of the probable cause determination. The lower court felt that the justification for the wireless taps also provided sufficient probable cause for a GPS search. The Tenth Circuit wasn't so sure. Without a nexus between the phone's location and the goal of flushing out the extent and workings of the conspiracy, and perhaps Barajas himself - it isn't completely clear.

However, the bad news for Barajas is, even if the facts weren't sufficient for probable cause, the good faith exception would apply. Good faith does not apply when an officer knows or should have known that the wiretap was invalid. Even though we presume that officers are familiar with the law, the law in this area is quite unclear. After all, we still aren't even sure if GPS pinging constitutes a search; hence the "assume without deciding" tactic used by the courts in this case.

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