Commentary for KQED "Perspectives"

Police Placement of Tracking Devices Under Cars

by Marty Kassman

(Aired October 8, 1999)

Got your new bumper sticker yet? The one that says, "Police -- Keep out from under this car"? You need one, you know. At least, that's the only way I can figure out for a citizen to block the police from being legally able to attach an electronic device to the under-side of his car and track him wherever he goes.

This may sound like a joke. I wish it were. But in early August, the San Francisco-based U-S Court of Appeals ruled that no search or seizure happened when police walked onto a man's driveway and put two electronic tracking devices on the undercarriage of his Toyota 4-Runner.⁽¹⁾ The cops suspected that the man was involved with some marijuana plants growing in a national forest. They used the devices to track the man as he drove to the forest, harvested the pot and brought it home. He was convicted of conspiracy to manufacture marijuana.

The argument in the Ninth Circuit Court of Appeals was not about whether the police had enough evidence for a search warrant. They didn't have a warrant, and normally, police can't search or seize private property without one. So the defendants' lawyers argued that all the evidence that flowed from the use of the tracking devices should be thrown out. But the majority of the Ninth Circuit panel ruled that the police didn't need a warrant, because what they did wasn't a search or a seizure.

Now, get a load of the court's reasoning on the search issue. For a police action to be considered a "search" under the Fourth Amendment, it has to infringe on someone's reasonable expectation of privacy. The court said the defendant, quote, "did not produce any evidence to show that he intended to shield the undercarriage of his Toyota 4-Runner from inspection by others. Furthermore, in placing the electronic devices on the undercarriage of the Toyota 4-Runner, the officers did not pry into a hidden or enclosed area." End quote.

Remember, this is the Ninth Circuit U-S Court of Appeals -- the one that some Republicans want to split up because they say it's too liberal. Maybe this case will ease their minds. For the rest of us, it's time to figure out how to let the police know that we'd rather they and their tracking devices stay out from under our cars.

With a Perspective, I'm Marty Kassman.

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1. United States v. McIver (9th Cir. Aug. 6, 1999) 1999 Daily Journal D.A.R. 8052.