A top Homeland Security Investigations official has told a federal court that it remains the agency's policy that officers can install a GPS tracking device on cars entering the United States "without a warrant or individualized suspicion" for up to 48 hours.
There is no such time limit, HSI Assistant Director Matthew C. Allen also told the court, for putting such trackers on "airplane, commercial vehicles, and semi-tractor trailers, which has a significantly reduced expectation of privacy in the location of their vehicles."
Such an assertion comes over a month after a federal judge recently told the Department of Justice that such a practice—at least in one drug-trafficking case—is unconstitutional. His decision is based on a landmark 2012 Supreme Court ruling involving GPS tracking, known as Jones.
Prosecutors had claimed that installing such a tracker was valid under the "border doctrine" exception to the Fourth Amendment, which finds that limited, warrantless searches at the border are allowed. US District Judge Jesus G. Bernal disagreed in an August 24, 2018 ruling.
Allen continued, saying that HSI believes that its policy is "consistent" with both the Jones decision and a case from 2004 case known as Flores-Montano. In that instance, the Supreme Court ruled that there is a "diminished" expectation of privacy at the border.
Legal experts find this newly disclosed HSI policy to be troubling.
"It is hard to square with the [Supreme] Court's decision in Jones," wrote Michael Price, an attorney with the National Association of Criminal Defense Lawyers, in an email to Ars.
"For starters, it ignores the fact that physical trespass was the basis for the Supreme Court's holding in Jones—the act of placing a tracker on a vehicle is itself a search, regardless of how long police track it."
Similarly, law professor Brian Owsley of the University of North Texas, who formerly served as a federal magistrate judge along the border in southern Texas, agreed in an email to Ars:
If HSI wants to argue that it can engage in warrantless GPS tracking of vehicles, that is within its prerogatives… However, Jones does not support a 48-hour window within the border. Instead, Jones establishes that the government needs a warrant signed by a neutral magistrate judge based on probable cause consistent with the Fourth Amendment. Moreover, Congress has established that a warrant is necessary for the installation of a mobile tracking device, which included GPS devices. In 18 U.S.C. 3117, Congress does not discuss any exception for border searches. Indeed, once a device is put on a vehicle, it likely will leave the border area, which undercuts the government's position.
“Law enforcement sensitive”
HSI Assistant Director Allen's statement was made in a September 28 court filing in a case known as United States v. Slavco Ignjatov et al., which is currently winding down in federal court in Riverside, California.
The government said in a separate September 28 filing that it would soon ask the court to dismiss the charges in the wake of Judge Bernal's August 24 ruling, which suppressed evidence found as a result of the illegal search—the installation of two such tracking devices.
As part of the investigation into Ignjatov, an FBI agent, after consulting with two HSI agents, ordered that a pair of GPS trackers be installed on a big-rig truck as it approached a border crossing at Port Huron, Michigan. Authorities believed that this truck and its occupants were involved in smuggling cocaine.
Prosecutors said that investigators tracked the truck from Michigan as it drove 33 hours to Los Angeles, where local police confronted the driver and his passenger. In addition to transporting its bona fide cargo of frozen cheese danishes, the truck was found to contain 15 four-pound packages of sugar.
The government believes that these sacks of sugar were effectively a "dry run" for a future delivery of cocaine, particularly as the very same truck had been caught delivering nearly 200 kilograms of cocaine in 2017.
Lawyers for defendants Slavco Ignjatov and Valentino Hristovski filed a motion to suppress, which was successful. When the government chose not to appeal the ruling, the judge eventually ordered that the men be released so that they could return home to Canada.
On Thursday, Ars asked HSI to provide a copy of its GPS-at-the-border policy and any related legal memos.
"Because the policy you are asking about is deemed law enforcement sensitive, you will need to file a FOIA request for the policy," Lauren Mack, an agency spokeswoman, emailed Ars.
Ars has already filed a records request under FOIA, the Freedom of Information Act. This process can take months to years.
Government lawyers have asked Judge Bernal to amend his August 24 order simply to include that the FBI agent and Los Angeles Police Department officer involved in the arrest should not be reprimanded for what turned out to be bad legal advice.
On Friday, Steven Gruel and Marilyn Bednarski, attorneys for the defendants, filed a motion to the court, arguing against the government's position.
"If the federal government does in fact have such a policy and is training law enforcement agents to act as the policy suggests, which is a violation of the 4th amendment, the government should be deterred and the agencies internal policies and training should be revealed and scrutinized," they wrote.
The two sides will be back in court on November 5 at 2pm to discuss the matter.