Court Shuts Down Feds' Attempt To Expand The 'Border Search' Exception To Cover Inland GPS Monitoring

from the short-gov't:-everything-with-the-borders-should-be-subject-to-the-border-exc dept

Cyrus Farivar of Ars Technica has put together a hell of a read from a suppression order obtained by defendants in a drug case. It involves a truckload of cheese danishes, cocaine trafficking, and the US government's attempt to apply the "border exception" everywhere in the United States.

At the heart of it is a GPS tracking device. The government installed it on a truck driven by suspected drug smugglers when it crossed the Canadian border into the US. It then used that device to track the truck as it traveled down to California. The resulting bust only uncovered some bags of sugar, but a previous stop of the same truck had turned up 194 kilos of cocaine.

The defendants in the case have had the evidence suppressed. The ruling [PDF] was handed down late last month. It points to the Supreme Court's 2012 Jones decision, which held that placing GPS devices on vehicles was a search under the Fourth Amendment. Warrants are needed to place the devices. Long-term tracking is also out of the question if warrants aren't obtained.

The government argued it didn't need a warrant because it placed the device on the truck at the Canadian border. This would be the "border exception" to the Fourth Amendment -- one carved out by the courts which allows all kinds of warrantless searches to be performed in the name of border security.

But the judge doesn't buy this attempt to salvage ill-gotten evidence. The government cites a number of cases involving searches of vehicles performed at the border -- some more invasive than others -- where warrants weren't needed. The court finds these citations unavailing because they don't actually address what happened here: the placement of a GPS device at the border which was subsequently used to track a vehicle as it traveled far beyond the Canadian border.

The Court doubts that an analysis dependent on the physical aspects of the search is appropriate here where the search extends beyond the initial installation of the device.

And, having taken the Jones decision into account, the court definitely isn't going to allow the government to effectively expand the border search exception to cover searches performed well within the nation's borders.

[T]his Court is hesitant to mechanically apply the border search doctrine where the search stretches far beyond the conduct at the border to create a "precise comprehensive record of a person's movements." [...] Ultimately, the Court concludes the placement of a GPS device on a vehicle at the border, combined with the subsequent tracking of data over a prolonged period away from it, cannot be justified by the border search exception.

Wait, says the government, what about the extended border search doctrine, where we can perform warrantless searches so long as someone or something came across the border recently and we think something criminal is going on? The court says continuous monitoring isn't the same thing as a search dependent on two separate, but linked, predicates. This was a search that began at the border and never stopped.

While the initial placement of the GPS devices on Defendants' truck occurred at the border, the subsequent monitoring of the data over the almost 48 hours constitutes a continuous search… [I[t is this unceasing search over that period that precludes application of the extended border search doctrine.

The court also shuts down the government's request for other exceptions to be applied. The government tried to explain the discovery would have been "inevitable" based on its prior reconnaissance of the truck's route, but the court points out the same route wasn't taken this time and the FBI didn't actually know for a fact where it would eventually end up. It made assumptions but didn't have supportable facts.

As for the good faith exception, the court points out the only controlling case came from the Supreme Court, and it's pretty difficult to imagine well-trained federal agents with all their expertise would not be aware of the warrant requirement. Furthermore, there have been no opinions since Jones that explicitly carve out a "border exception" for GPS tracking device usage. It appears the government did nothing to ensure its actions were legal or Constitutional before engaging in this extended search.

The Court is not persuaded the good faith exception stretches to encompass the government's reasoning for its application. There is no evidence the agents were advised by an attorney that they need not obtain a warrant. Nor has the government been able to point the Court to any precedent that could have served as a basis for the purported 48-hour rule or its looser application to semi-trucks.

The evidence is gone -- what there was of it. The government isn't abandoning its prosecution and it may ask the Ninth Circuit to allow it to apply the border search exception anywhere it wants to. But for now, it's been told the exception doesn't cover hours of inland monitoring, which is a conclusion federal agents should have been able to reach on their own -- long before engaging in 48 hours of continuous rights violations.

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Filed Under: 4th amendment, border exception, border search, exemption, gps, illegal search, supreme court, tracking