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What a Minnesota poaching case says about the 4th Amendment and GPS

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Paul Sakuma/AP/File

(Read caption) Yasir Afifi at his San Jose, Calif., home in 2011 showed where a GPS tracking device was placed on his car. The Supreme Court ruled unanimously in 2012 that police must get a search warrant before using GPS technology to track criminal suspects. A Minnesota judge used the case to dismiss charges against a poaching suspect this week.

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Officers found the man with 37 deer racks, an equal number of guns, and a fawn killed illegally with a rifle. 

The Minnesota Department of Natural Resources seemed to have a clear-cut case against Joshua Liebl, and the long-winded prosecution became the most high-profile poaching case the state has ever seen.

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But in a Monday ruling, District Judge Thomas Van Hon dismissed all 13 charges against Mr. Liebl, Twin Cities Pioneer Press reported, based on the Fourth Amendment's protection against "unreasonable searches and seizures."

Because officers placed a GPS device on Liebl's car without a search warrant, the Department of Natural Resources must return all 37 deer racks (head-and-shoulder mounts), guns, the fawn, and Liebl's truck, Dennis Anderson and Tony Kennedy reported for the Minneapolis Star Tribune.

The judge's ruling builds on a controversial 2012 decision by the Supreme Court to clarify a citizen's right to privacy with the advent of new technology. United States v. Jones, filed by a nightclub owner whose Jeep was tracked as police investigated him for drug trafficking, determined that a using a GPS to track suspects constitutes a search

"This is an important victory for the rule of law and for the privacy of sportsmen of Minnesota," Liebl's defense attorney Bill Peterson told the Star Tribune. "It should establish once and for all that DNR enforcement officers are subject to the same constitutional standards as any policemen or other law enforcement officer."

The officers obtained a tracking warrant, but no search warrant, before attaching the GPS. Van Hon said that although a search warrant would probably have been granted based on the evidence at the time, its lack was enough to dismiss a range of charges including hunting out of season, using a bad hunting license, and illegal transport.

The case, and the 2012 Jones case on which the judge based his ruling, attracted national attention because the cases represent efforts to answer a difficult question: How much should new technology increase the government's ability to monitor its citizens? Both cases were answered rather narrowly but refused to give law enforcement any shortcuts with GPS trackers.

"Jones has become a high-profile case because untrammeled GPS monitoring is creepy and Orwellian," Orin Kerr, a Fourth Amendment professor at George Washington University Law School in Washington, D.C., wrote in a SCOTUS blog. "It's not a subtle threat to privacy and security: People get it immediately and intuitively."

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He said high-profile court rulings cannot go far enough to protect privacy because "stalkers, jealous ex-boyfriends, suspicious spouses" and others can still attach a GPS tracker to anyone's car at will. He argues for a federal law to stop anyone from attaching a GPS device to someone else's property, with exceptions only as permitted by the Fourth Amendment.

The Electronic Frontier Foundation, whose amicus brief on the 2012 case was joined by "father of GPS" Roger L. Easton, also worried that the law has fallen behind as new technology gives law enforcement better tools for surveillance. 

The judge added that a search warrant was even more necessary in the Minnesota case than it was in the precedent case, United States v. Jones. In that case, the Supreme Court ruled the FBI and local police would have needed a search warrant to attach a GPS tracker to the car of a suspected drug trafficker. They attached the device while the car was parked in a parking lot; Liebl's car, on the other hand, was parked in his driveway when DNR officers attached the GPS.  

DNR enforcement chief Lt. Col. Rodman Smith told the Star Tribune his department is considering an appeal and will decide within days. 


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