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

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That One Guy (profile) says:

Re: Re: 'Oh only the penalties apply, the protections, not so much.'

That sounds like consistency in applying the law, otherwise known as crazy-talk, not the sort of thing that most courts would entertain as they have much better uses of their time, like stamping ‘Approved’ on (almost) any request/action issued or done by anyone with a badge.

The Wanderer (profile) says:

Re: Re: Re:

The thing is, as far as I can tell, nobody – not even the government in cases like this – is arguing that the Fourth Amendment does not apply at the border.

Rather, they’re arguing that any search pursuant to border enforcement is automatically reasonable – even in the absence of a warrant – and therefore falls within the category of searches which the Fourth Amendment does not prohibit.

If you want to oppose their argument effectively, you need to attack that idea of automatic reasonableness, rather than a position for which no one seems to be actually arguing.

Anonymous Anonymous Coward (profile) says:

Proper planning prevents piss poor performance

With all the preparation and planning that went into this operation, why didn’t they ask for a warrant? Did they think they wouldn’t get one? If that was the case, why did they think they could get away without one?

Applying for a warrant only takes a bit of time and effort, and then some waiting while a judge makes a decision. It’s not like it’s hard or anything. But they decided to go without one. To what end?

Anonymous Coward says:

Re: Proper planning prevents piss poor performance

I think this is just the Government trying to set precedent. See if they get this through OK, why stop there. If the court says that’s OK, what’s next, just doing it anywhere in America and that’s now legal according to the precedent. Glad to see this court stop that garbage from happening.

Anonymous Coward says:

Re: Re: Proper planning prevents piss poor performance

I see where you’re getting at (and I see the possibility) but the court in this case really didn’t do anything but affirm already established law.

What wasn’t mentioned in the article is that the two LEO’s primarily responsible for this whole debacle circle-jerked each other into thinking it was all o.k. Everything about this was lazy, they didn’t bother to ask higher-ups or some type legal expert if it was kosher. They didn’t apply for a warrant which in this case would have easily been granted, HELL they could of gotten one after the they attached the tracker and everything would have been good.

But they were lazy and fucked up and the government had to go with what they had and at least in this aspect in the case, they have pretty have shit…

I’d love to imagine a just world where those two LEO’s get their professional asses handed to them for such a cock-up, but as it’s been said here earlier, they probably got promoted.

Toom1275 (profile) says:

Re: Proper planning prevents piss poor performance

And even if law enforcement didn’t know the truck was going to stop at the border crossing at least a day beforehand (more than enough time to get a warrant), and had to scramble to slap on the tracker, they still had the option of getting a warrant for the tracker after the fact, which would still have made it legal. They chose not to do even that.

Tip Ickle says:

As ALWAYS, Techdirt happy that drug sellers escape justice.

This is another case where the facts are uncontested and the only flaw is reasonably within "good faith".

My bet is this will be overturned. How can it be otherwise? Purpose of Fourth Amendment is protect THE INNOCENT, not the known guilty, no matter how discovered or traced.

But Techdirt minion claims that the drug sellers had their "rights continuously violated". It’s a completely fanatic ultra-libertarian view of "rights" that’s source of many hoots here.

Of course the major problem is lawyers who can split hairs indefinitely when want, though will still allow egregious incontrovertible violations of rights when police gun down innocent people. — HOW DO LAWYERS RECONCILE SUCH IN THEIR OWN MINDS? — Answer: because BOTH insane cops AND drug sellers serve The Establishment’s — and "The Bar’s" — purposes.

Stephen T. Stone (profile) says:


The purpose of the Fourth Amendment is to protect both the innocent and the guilty. Murderers, child rapists, drug dealers, bankers—they all have civil rights, no matter how much you despise any of those people, and the legal system is bound by the fact that it must respect those rights. Even if enough proof is found of someone’s guilt, that someone can (and should) walk into a courtroom with a (supposed) presumption of innocence to face a (hopefully) fair trial.

You may hate the fact that police cannot simply execute criminals on the spot as if this were Mega-City One. You may hate the fact that the legal system respects the civil rights of people you presume to be criminals, even though plenty of innocent people have been imprisoned and even executed for crimes they did not commit. Our legal system requires us to respect those civil rights because any of us could be sitting at the defendant’s table. Would you want the civil rights of a criminal stripped from them if you might one day be that criminal?

That One Guy (profile) says:

Re: Re: Re:

You have to wonder sometimes if, assuming they aren’t just trolling rather than insane, they realize that they are often putting forth the exact opposite of ‘It is better that 99 guilty people go free than 1 innocent person be wrongly punished’, and what that says about them and what they consider ‘justice’.

That One Guy (profile) says:

An all too rare breath of sanity

It’s refreshing, in large part due to how rare it is, for a court to actually tell the government ‘No’ on stuff like this, rather than just giving them whatever they want ‘Because otherwise the Bad People will win’.

Now if only it could happen more often they might start respecting the law that they demand everyone else follow.

Anonymous Coward says:

… it’s pretty difficult to imagine well-trained federal agents with all their expertise would not be aware of the warrant requirement

We routinely see that well-trained local officers, despite all their expertise, are not only permitted but encouraged to be unaware of the laws they allegedly enforce. It seems easy to imagine that federal agents are similarly unaware of the rules governing their conduct.

Anonymous Coward says:

The trouble is that if the ruling went the other way, people who did not want to be tracked would be able to jam wireless Internet signals to prevent location from being reported.

Jamming wireless Internet does not currently violate FCC rules, as it is only illegal to jam voice, and not data.

I could see, somewhere down the line, the CFAA expanded to cover jamming 1x/2g/3g/4g/5g/Wifi/WiMax. I am surprised that bills to expand the CFAA have never covered that, since it could be considered a type of denial of service attack.

Bergman (profile) says:

Wait a second...

The entire basis of the organization is that that specific truck had been used to smuggle cocaine before, been seized, and the smugglers prosecuted.

Since both civil and criminal asset forfeiture are things that exist, how did that truck get back into the wild, as it were? Obviously it was forfeited and sold, given how cash hungry cops are, no amount of property is too small to forfeit.

So the new owners of the truck are not under any suspicion of any kind — all of the suspicion here falls upon the truck, as if it had loaded the cocaine all by itself, independent of its owners!

So the government acts as if the truck were the smuggler, and attached a GPS tracker. They follow the truck, and when it makes its delivery, they sweep in and bust the people operating it. They search the truck and find only the cargo on the manifest, none of it illegal in any way.


They are apparently prosecuting people for owning a truck that the government sold to them, with no actual evidence against them aside from an illegal search that failed to find anything illegal on the truck!

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