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No Right to GPS Tracking Privacy When Carrying Stolen Cell Phone

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By William Peacock, Esq. on June 13, 2013 10:11 AM

Lorenzo Barnes, a past-convicted felon, held up a young couple at gunpoint. One of them handed over his wallet, while the lady tossed her bright teal Prada purse under a nearby vehicle. Barnes retrieved the purse and took off.

An hour later, the purse-snatcher was in cuffs. How?

In addition to having a very conspicuous purse, she was also carrying a Palm Pre smartphone. She told the police that her phone had GPS, together they contacted Sprint, and within forty-five minutes, they had Barnes’ location. The victims also provided a physical description.

Hilariously enough, Barnes, on appeal, argues that his Fourth Amendment rights, and the related “expectation of privacy” were violated by the GPS search. The Court of Appeals, however, strongly disagrees.

The controlling case is United States v. Jones, a U.S. Supreme Court case that was decided while the present appeal was pending. That case dealt with warrantless GPS tracking of a suspect for 28 days, and where the police had physically attached a GPS tracker to the suspect's Jeep.

Justice Scalia, writing for the majority, clarified the Fourth Amendment test into a two-prong analysis. If there is a physical trespass onto protected property ("persons, houses, papers, and effects"), the common-law trespassory test would apply. That's not the case here, as the police did not, themselves, affix a GPS tracker to Barnes, nor did they otherwise invade his physical space without reasonable suspicion.

When trespass doesn't occur, the Katz "reasonable expectation of privacy" test applies. Notably, Scalia expressly stated, "Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis." The same framework was reaffirmed in this year's Florida v. Jardines decision.

Did Barnes have a "reasonable expectation of privacy" in regards to the GPS chip on a recently-stolen phone, while standing, and later driving, on public thoroughfares?

Obviously not. The court cited the Ninth Circuit, which in a similar case involving a stolen laptop, held, "The Fourth Amendment does not protect a defendant from a warrantless search of property that he stole, because regardless of whether he expects to maintain privacy in the contents of stolen property, such an expectation of privacy is not one that society is prepared to accept as reasonable."

No expectation of privacy. No Fourth Amendment rights violation. Conviction affirmed.

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