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Michele L. Berry on United States v. Maynard and GPS Surveillance: Prolonged Surveillance Equates a Search under the Fourth Amendment


By Michele L. Berry


“In United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) [enhanced version available to subscribersunenhanced version available from lexisONE Free Case Law] the D.C. Circuit Court of Appeals conducted a Fourth Amendment review of the use of a GPS monitoring device surreptitiously attached without a warrant to a Jeep driven by one of the co-defendants (Jones),” writes Michele L. Berry. “The GPS device was then used to monitor the movement of Jones' vehicle 24-hours a day for 28 days during which time the government collected evidence that Jones drove to and from a house where law enforcement located $850,000 in cash and nearly 100 kilograms of cocaine. The D.C. Circuit held that the government's use of the GPS device constitutes a search, and thus, the government violated Jones' Fourth Amendment expectation of privacy by installing the GPS device without a valid warrant.”


“The Court's analysis hinged on analyzing the prolonged nature of the surveillance at issue in Maynard and the privacy implications caused by the government monitoring an individual over a prolonged timeframe—so as to notice a pattern of movement—as opposed to monitoring an individual once or over a short term,” explains the author. “Most significantly, the Court pointed out that in other cases analyzing GPS surveillance under the Fourth Amendment, the appellant never contended (as Jones did here) that Knotts v. United States, 460 U.S. 276 (1983) [enhanced version available to subscribersunenhanced version available from lexisONE Free Case Law] (the leading case analyzing under the Fourth Amendment surveillance of vehicles via tracking devices) does not control whether prolonged surveillance is a search.”


“The Maynard Court rebuffed the government's assertion that the Knotts Court intended to reserve the Fourth Amendment questions raised by mass surveillance of a population rather than prolonged surveillance of a single individual,” Berry points out. “The Court quoted sections from the defendant's appellate brief submitted in Knotts and demonstrated that, in fact, when the Knotts Court explained that it was reserving the issue of 24-hour ‘dragnet-type’ surveillance, the Court was directly responding to the defendant's assertion that failing to require a warrant prior to attaching a tracking device to a person's vehicle, will permit ‘twenty-four hour surveillance of any citizen of this country...without judicial knowledge or supervision...for any length of time’. While the Knotts Court managed to avoid the issue, explaining that the facts involved in the Knotts case ‘hardly suggested abuse’ and did not actually present the 24-hour ‘dragnet-type’ surveillance alluded to in the defendant's appellate brief, the 24-hour surveillance scenario is the exact scenario presented to the D.C. Circuit in Maynard.” subscribers can access the complete commentary, Michele L. Berry on United States v. Maynard and GPS Surveillance: Prolonged Surveillance Equates a Search under the Fourth Amendment. Additional fees may be incurred. (approx. 5 pages)


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Michele L. Berry is an attorney in Cincinnati, Ohio focusing in criminal defense, appellate, post-conviction, and civil rights litigation. She is a graduate of the University of Cincinnati College of Law where she was named to the Order of the Barristers and served as senior articles editor to the Human Rights Quarterly, and the University of Dayton where she graduated summa *** laude with honors. She is a member of the CJA panel for the United States Court of Appeals for the Sixth Circuit and handles criminal appeals throughout the State of Ohio in addition to her trial work in Southwestern Ohio. She is an expert on DNA and post-conviction issues, and currently represents Ohio's most recent DNA exoneree in his civil suit against the authorities who wrongfully convicted him. She has represented several of Ohio's DNA exonerees in their respective civil suits. She has also represented criminal defendants whose cases have drawn national media attention. Working with the Ohio Innocence Project, Berry organized a legislative effort culminating in the passage of Ohio's Senate Bill 77 (Ohio's Integrity of Evidence Law), which provides numerous reforms to curb wrongful convictions, such as DNA preservation, recorded interrogations, and improved eyewitness identification procedures. She has spoken at Witwatersrand University in Johannesburg, South Africa and Shandong University Law School and Beijing Normal Law School in China about the causes of wrongful convictions.