Weekly Case Summaries: July 22, 2011

Fifth Circuit

United States v. Hernandez

07/18/11 : Cite No. 10-10695

Issue (1):

Did a driver with consent to drive another person's vehicle have standing to challenge the use and placement of a DEA-installed GPS device (a slap-on tracker with 50-yard accuracy and an intermittent signal)?

Issue (2):

Did the attachment of the GPS device constitute an unconstitutional warrantless search?

Holding (1):

Yes and no: While the driver had standing to challenge the use of the GPS device because he drove the vehicle with consent, he lacked standing to challenge its placement because the vehicle was not registered to him. Read Opinion.

Holding (2):

No, the DEA agents' use of the surreptitious GPS device to track Hernandez was not a search within the meaning of the Fourth Amendment. Suppression of the evidence was not required. The court left for another day whether a GPS device that continuously and precisely monitors location would constitute a search.

Commentary:

In June, the SCOTUS granted a petition filed in a similar case by the federal government, seeking review on the issue of whether the warrantless use of a GPS device to monitor the movement of a car violates the Fourth Amendment. To read the petition click here. Most appellate courts, including even the liberal Ninth Circuit, have found the practice constitutional. The Court of Appeals for the D.C. Circuit, however, focused on the “prolonged” nature of the surveillance and found some sort of right to privacy arising from that extended investigation. That is not likely to fly at SCOTUS. Stay tuned.

Texas Attorney General

Request for Opinion from El Paso County Attorney

07/15/11 : Request No. RQ-0983-GA

Issue:

What is the authority of a county attorney to enforce a bail bond forfeiture judgment that is more than twelve years old? Read Request

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