GPS and Reasonable Expectation of Privacy
In 2012, the United States Supreme Court in United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) reaffirmed a person’s right to be free from unlawful searches of property guaranteed by the Fourth Amendment, in holding that the placement of a GPS device on a vehicle constituted a search. Since Jones, many defendants have filed Omnibus Pretrial Motions seeking to suppress drugs found in their cars for various reasons on the basis of Jones. What has been forgotten is the long standing policy of standing.
A defendant must first have standing and a reasonable expectation of privacy before they can challenge a search. While a defendant charged with a possessory offense has automatic standing to challenge a search, he also must first show an expectation of privacy. To determine whether an expectation of privacy exists the court will examine whether “the individual, by his conduct, exhibits an actual (subjective) expectation of privacy and that the subjective expectation is one that society is prepared to recognize as reasonable.” Commonwealth v. Burton, 973 A.2d 428, 435 (Pa.Super. 2009)(citation omitted).
In Commonwealth v. Arthur, officers obtained a court order to place GPS on a vehicle register to Arthur’s girlfriend but for which they observed Arthur use to make a controlled buy. 62 A.3d 424 (Pa.Super 2013). The results of the GPS were then used to obtain a search warrant for the vehicle. Upon execution of the search warrant officers found narcotics. Arthur filed a motion to suppress based upon Jones, which was granted. The Commonwealth appealed arguing Arthur lacked standing. The Superior Court in Arthur analyzed several decisions since Jones to see how the decision has influenced standing. In US v. Martinez-Turcio, the court held that neither defendant was an owner of the van in which the GPS was placed and therefore neither defendant had standing. In Arizona v. Estrella, the court found the defendant did not have standing to challenge the GPS where there was no evidence he had permission to drive the vehicle when the device was placed. In US v. Shephard, the court held that the defendant did not have an expectation of privacy in the vehicle where he did not “own, drive or occupy the vehicle.” Specifically the court in Shephard noted that Jones did not create a new exception that would allow a defendant to challenge the GPS without first establishing a privacy right.
The facts in Arthur were different than most cases thus far, because the defendant clearly used the vehicle. However, the court still determined the defendant did not have standing. The only evidence presented at the suppression hearing regarding the defendant and the vehicle was the fact the defendant was in the vehicle, a vehicle that did not belong to him. There was no testimony presented that the defendant had permission to use the vehicle in order to establish a reasonable expectation of privacy. Had the defendant’s attorney elicited questions from his girlfriend (owner) regarding permission, the court seems to imply the defendant would have had standing.
In summary, when reviewing cases involving the use of a GPS, do not overlook the basic issues of reasonable expectation of privacy.