A 2020 decision by the Florida First District Court reminds us of various realities in our modern world. Bailey v. State of Florida, No. 1D18-4514, 45 Fla. L. Weekly D2559 (Fla. 1st DCA 2020). The trial there resulted in conviction "for first-degree murder, armed robbery, and possession of a firearm by a convicted felon." It is an intriguing look into the process of police investigations, but more so into the way technology implies itself into our lives.
Surveillance video from a hotel established the victim and defendant had departed together, but the defendant returned alone. The defendant's girlfriend testified that she periodically allowed him to use her vehicle. Coincidentally, on the night of the murder, she reported her car stolen and the next day used a "GPS tracker," of which she was aware, to locate the vehicle. The police later obtained these vehicle tracking records without a subpoena and used them to demonstrate the car had been in the area in which the victim's body was found.
In particular, the vehicle was at a specific home early in the morning when the victim was found. Police visited that home and were given surveillance camera footage with the homeowner's consent. This demonstrated the defendant's presence at that home. A warrant was then issued allowing for a search of the home revealing clothing the defendant wore the night of the murder. A warrant for the defendant's cell phone records produced electronic records that "matched the timeline of the GPS (car) records."
The appeal centers on the appellant's contention that the "GPS records" regarding the vehicle should be excluded from evidence (as well as the warrants thereafter for the home and cell phone records, referred to as "the fruits thereof"). The trial court focused on the ownership of the vehicle, concluding that as it was not the defendant's car, he "had no expectation of privacy." The appellate court focused upon this expectation of privacy argument.
The Court explained that the privacy argument in this context is founded upon the Fourth Amendment to the United States Constitution. This precludes "unreasonable" searches. Such searches, conducted "without prior approval by judge or magistrate, are per se unreasonable." However, there are exceptions. The Court also explained the origins of the Fourth Amendment, and its "redefinition" in 1967 that "expanded the protections." Thereafter, the standard has become "the ‘reasonable expectation of privacy’ test."
If one feels somewhat unclear on the legal standard, the First District seems sympathetic, characterizing the standard as suffering from "murkiness of its application." In part, that seems intertwined with the technological (r)evolution through which we have recently lived. Despite the modern "subtler and more far-reaching means of invading privacy," the courts nonetheless strive "to ensure that the progress of science does not erode Fourth Amendment protections.”
Thus, the analysis has evolved into two potentials for challenge: physical intrusion of the government and intrusion where "a person possesses a reasonable expectation of privacy." To prevail on this second potential the defendant must show:
he/she "sought to preserve the information in question as private," and "exhibit(ed) an actual, subjective expectation of privacy," and this "expectation is one which society recognizes as objectively reasonable."
Whether a person allows information to be revealed may be relevant in determining this expectation, however, the Court explains this is not "a mechanical" analysis. The context and expectation are critical.
The Court turned to the specifics of the allegations in Bailey, and Supreme Court precedent in which a tracking device placed upon a vehicle was a "trespass" and thus its yield was deemed inadmissible. There were conclusions in that analysis (Jones, 565 U.S. at 430,) that hinge on the duration of such surveillance, and whether it might be characterized as "long term" or "short term." Essentially, the distinction there lies in what might be demonstrated by repeated visits to a particular venue as compared to a singular instance.
The court here affirmed the trial court's decision not to suppress the GPS data. It noted that the evidence in this instance was "business records that might incidentally reveal location information." There is also an explanation of the distinction between tracking related to a cell phone (which "the overwhelming majority of individuals more or less must own") and how that is "distinguished from cars, which contrarily have “little capacity for escaping public scrutiny.”). In effect, vehicle GPS data is less subject to privacy concerns than cell phone GPS. This seems to be a reasonably general conclusion.
In summary, the Court noted
"The fact remains that Appellant chose to operate a car on public roads - a car owned by another who consented to GPS tracking. The police played no role in the recording of the information and simply availed themselves of the advantages afforded by the (existing) electronic recording. Under these circumstances, any expectation of privacy on Appellant's part was not objectively reasonable."
The Court panel was unanimous in affirming the trial court. However, one judge wrote a special concurrence to express a different foundation for affirmance, the "good faith exception." Here, an interesting analysis is provided regarding the timing of the murder investigation (before Carpenter v. United States was decided by the Court - the expectation of privacy regarding cell phone information). More interesting, however, is the explanation that the vehicle in question had been "reported stolen to police," and that the police efforts to use the GPS with "the owner's apparent consent," was consistent with locating the car. The use was an "objectively reasonable response of law enforcement."
This analysis regards a criminal case, suppression of evidence, and constitutional rights. But, the analysis is pertinent to the broader world of litigation, including workers' compensation. The points to take away are that appellate decisions, even from the United States Supreme Court may present parameters and considerations that are not contained or defined by "bright lines." What is or is not reasonable in the context of privacy may be a similar trial proceeding determination to any issue requiring reasonableness. There is nuance and distinction in litigation, and therefore there will likely be facts that are pertinent in most disputes, subject to the interpretation of the trial judge.
In this decision, there are two examples of thought processes through difficult precedents. There is discussion and edification of the role of trial court and appellate review. There is a discussion of how the concept of law struggles with the inescapable fact that our world is evolving and that technology may periodically create as many questions as it resolves. And, finally, there is reminder that a there are factual distinctions that require analysis, such as people's affinity for and dedication to their cell phones compared to their ability and willingness to park their car and walk away. The analysis of that distinction in terms of privacy and expectations is fascinating.
