Disturbing Police Overreach: unreasonable GPS tracking after owner no longer drove the car

“To invoke the Fourth Amendment protections, a person must show that [they] had a legitimate expectation of privacy.” U.S. v. Shryock, 342 F.3d 948, 978 (9th Cir. 2003) (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)). An expectation of privacy is legitimate if it is one that society accepts as objectively reasonable. See Minnesota v. Olson, 495 U.S. 91, 95-96 (1990); California v. Greenwood, 486 U.S. 35, 3940 (1988).

“The Fourth Amendment shields not only actual owners, but also anyone with sufficient possessory rights over the property searched.” Lyall v. City of Los Angeles, 807 F.3d 1178, 1186 (9th Cir. 2015). “[A] defendant who lacks an ownership interest may still have standing to challenge a search, upon a showing of ‘joint control’ or ‘common authority’ over the property searched.” United States v. Thomas, 447 F.3d 1191, 1198 (9th Cir. 2006) (citation omitted). “Common authority rests ‘on mutual use of the property by persons generally having joint access or control for most purposes.’” Id. For example, “a defendant may have a legitimate expectation of privacy in another’s car if the defendant is in possession of the car, has the permission of the owner, holds a key to the car, and has the right and ability to exclude others, except the owner, from the car.” Id. at 1198 (9th Cir. 2006).
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Rubin does not challenge the validity of the search warrant but rather challenges the continued placement and monitoring of the GPS tracking device as unreasonable after law enforcement became aware that Morgan was no longer driving the white pickup. (ECF No. 26 at 5-6, 10-11.) The issue here is essentially whether the continued GPS tracking was conducted within the scope of the warrant. “If the scope of [a] search exceeds that permitted by the terms of a validly issued warrant …, the [search and any] subsequent seizure [are] unconstitutional without more.” Horton v. California, 496 U.S. 128, 140 (1990). “Whether a search exceeds the scope of a search warrant is an issue [courts] determine through an objective assessment of the circumstances surrounding the issuance of the warrant, the contents of the search warrant, and the circumstances of the search.” United States v. Hitchcock, 286 F.3d 1064, 1071 (9th Cir.), opinion amended andsuperseded on other grounds, 298 F.3d 1021 (9th Cir. 2002); see, e.g., United States v. Hurd, 499 F.3d 963, 966-69 (9th Cir. 2007) (application of the Hitchcock test)).
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An objective assessment of the circumstances surrounding the issuance of the warrant does not support the conclusion that the issuing judge authorized the GPS tracking of the white pickup while driven exclusively by someone other than Morgan-such as Rubin.

Full case: United States v. Rubin, 3:22-cr-00012-MMD-CSD-1, 5 (D. Nev. Apr. 21, 2023), https://casetext.com/case/united-states-v-rubin-38