When is a Search not a Search? One way in which the United States protects its people from being subjected to random whims of the State and errant police is by protecting our right to be free from “unreasonable searches and seizures.”  This right is established in the Fourth Amendment to the United States Constitution, which states, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  Some general examples:  the police cannot simply barge into your house, unannounced, at any time of the night to look around; you cannot be stopped as you drive down the street, forced out of your car by a State actor who then searches your car; law enforcement officers cannot take your checked suitcase from the airport to their downtown office for further inspection, absent a darn good reason!  The text of the Fourth Amendment has been, and continues to be, subject to a lot of legal scrutiny (what is reasonable?  what is unreasonable?), but in general, police must meet the standard of having “probable cause” to apply for a search warrant and must describe in detail what, where, or who they wish to search and seize.  They then need to swear or affirm to a judge that their description is correct, and a judge must sign a search warrant, prior to initiating a legal search.

As technology changes and evolves, so, too, does the method in which searches can be carried out.  The Fourth Amendment’s drafters surely did not contemplate cars and high speed trains zooming about the country, much less slick, hand-held mini-computer phones, or satellites orbiting the earth and able to provide detailed information on your location and movements to someone potentially hundreds of miles away.  Courts and the law must adapt and evolve as technology evolves, and the Constitution and Fourth Amendment must also be interpreted for twenty-first century realities and questions.  Can the government conduct bulk collection of our phone records and Internet use?  Do police need a warrant to have a drug dog sniff around the outside of a house?

Only four years ago, in 2012, the United States Supreme Court weighed in on the question of whether attaching a Global Positioning System (GPS) unit to a car is a Fourth Amendment search that requires a warrant.  The Supreme Court determined that yes, police installation of a GPS unit on a target’s car and the use of that device to monitor the vehicle’s movements constitute a search for which the police must have a warrant, signed by a judge and based on probable cause.  U.S. v. Jones, 132 S.Ct. 945, 949 (2012).  Unfortunately, Minnesota law does not yet comply with the federal precedent set in Jones.

Minnesota law states that a judge may sign an Order to install a mobile tracking device based on “reason to believe” that the information likely to be obtained by the installation and use of the device “is relevant to an ongoing criminal investigation.”  Minn. Stat. 626A.37 subd. 1.  However, an Order is not a Warrant, as the Minnesota law bases the Order only on “reason to believe,” rather than the warrant’s requirement of “probable cause.”  Reason to believe does not carry with it the same weight as probable cause.  In legal terms, it is a lesser standard than probable cause, and so a judge can sign an Order based on reason to believe with a bit less information or proof than he or she would need for probable cause.  See State v. Fakler, 503 N.W.2d 783 (Minn. 1993).

The issue of what standard should be required for the installation and tracking of GPS devices is currently on appeal with the Minnesota Court of Appeals in State v. Liebl, No. A16-0618 (Minn. Ct. App. filed Apr. 18, 2016).  The district court in Lac qui Parle County threw out one of the Minnesota Department of Natural Resource’s biggest recent deer-poaching cases, one in which the DNR confiscated 37 head-and-shoulder mounts, 37 guns, other wildlife, and the defendant’s truck, as the “tracking order” used to install a tracking device on the defendant’s truck was not based on probable cause and was not a warrant.  Similarly, Wilson Law Group is currently challenging the installation and use of a GPS tracking unit based on four different judicial orders, none of which requested or made a finding of probable cause.

Other states have recognized that Jones requires a warrant based on probable cause to install a GPS unit and conduct GPS tracking.  For example, the South Carolina Supreme Court, the Indiana Court of Appeals, the Georgia Court of Appeals, and the Arizona Court of Appeals have generally held that the installation and monitoring of a vehicle with a GPS unit constitutes a Fourth Amendment search and must be authorized by a valid warrant based on probable cause.  See State v. Adams, 763 S.E.2d 341, 344 (S.C. 2014); Keeylen v. State, 14 N.E.3d 865, 874 (Ind. Ct. App. 2014); Hamlett v. State, 753 S.E.2d 118, 125 (Ga. Ct. App. 2013); State v. Mitchell, 323 P.3d 69,77 (Ariz. Ct. App. 2014).  Until Minnesota also updates its laws to reflect the Supreme Court’s decision in Jones, this type of GPS monitoring within our state’s borders will apparently remain a search that is not really a search.

If you have questions about what might constitute a police search, or if you have been charged with a crime in the state of Minnesota, please contact Wilson Law Group for a free consultation.