Can the government track your eScooter (Lime) with real-time location data (GPS) without a warrant?

Background: Lessee of motorized electric scooters brought action challenging constitutionality of city program requiring companies that leased such scooters to obtain permits from the city department of transportation, which, among other conditions, mandated that companies provide real-time location data directly to city for all leased scooters. The United States District Court for the Central District of California, Dolly M. Gee, J., 2021 WL 1220690, dismissed the action. Lessee appealed.

Holdings: The Court of Appeals, Hawkins, Senior Circuit Judge, held that:
1 city’s collection of real-time location data on scooters amounted to injury-in-fact sufficient to confer Article III standing;
2 lessee had no reasonable expectation of privacy in real-time location data; and
3 city’s collection of data did not amount to a “search” under the Fourth Amendment.

Full case here: Sanchez v. Los Angeles Dep’t of Transportation, 39 F.4th 548 (9th Cir. 2022),

The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. The initial issue for decision is whether LADOT’s collection of MDS location data is a search for Fourth Amendment purposes.5 Only if collection of the data is a search do we need to address the separate question of whether that search is unreasonable. See Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).

For much of our Nation’s history, the definition of a search under the Fourth Amendment was “tied to common-law trespass,” focusing on whether government actors had obtained “information by physically intruding on a constitutionally protected area.” United States v. Jones, 565 U.S. 400, 405, 406 n.3, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). In Olmstead v. United States, for example, the Supreme Court found that wiretaps attached to telephone wires on public streets did not constitute a search because “[t]here was no entry of the houses or offices of the defendants.” 277 U.S. 438, 464, 48 S.Ct. 564, 72 L.Ed. 944 (1928).

The Court significantly expanded the doctrinal scope of the analysis in Katz v. United States, finding that the attachment of an eavesdropping device to a public *555 telephone booth was a search, memorably stating that “the Fourth Amendment protects people, not places.” 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Its subsequent decisions have framed the inquiry as whether the challenged government action violates a person’s “reasonable expectation of privacy,” citing Justice Harlan’s seminal Katz concurrence. Id. at 360, 88 S.Ct. 507. Thus, when an individual “seeks to preserve something as private,” and that expectation of privacy is “one that society is prepared to recognize as reasonable,” government intrusion into that private sphere generally qualifies as a search requiring a warrant supported by probable cause. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (cleaned up).

The third-party doctrine teaches that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith, 442 U.S. at 743–44, 99 S.Ct. 2577; see also United States v. Mohamud, 843 F.3d 420, 442 (9th Cir. 2016) (noting that the “third-party doctrine” instructs “that a person’s *557 privacy interest is diminished where he or she reveals information to a third party, even in confidence”). This is true “even if the information is revealed on the assumption that it will be used only for a limited purpose.” United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). “As a result, the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections.” Carpenter, 138 S. Ct. at 2216. Sanchez v. Los Angeles Dep’t of Transportation, 39 F.4th 548, 556–57 (9th Cir. 2022)

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
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