Supreme Judicial Court (September 17, 2009)

GPS tracking warrants are issued under the common-law authority of the courts, and the monitoring period must be no longer than 15 days from the date the warrant was issued.

The defendant was convicted of cocaine trafficking and distribution violations, mostly with evidence obtained by a GPS device installed in his minivan pursuant to a warrant. On appeal, the defendant's arguments relative to the GPS device were that: 1) the surreptitious GPS monitoring without a warrant (the GPS device had been installed pursuant to a warrant previously issued) violates the Fourth Amendment of the Constitution and Article 14 of the Declaration of Rights; 2) while a warrant was issued for the GPS device, the police continued to obtain data after the warrant had expired; and 3) the police then improperly used the GPS data obtained after the warrant's expiration to get a search warrant for the minivan. The SJC concluded that "the installation and use of the GPS device in the circumstances of this case was a seizure requiring a warrant, and that the warrant obtained had not expired when the minivan was seized."

The SJC concluded that the installation of the GPS device constituted a seizure under art. 14 and thus required a warrant: the process required police entry in the vehicle for an hour, the use of the minivan's electrical system, and the power of the vehicle to operate the device. Moreover, the use of the GPS device also constituted a seizure, because tracking the vehicle's movements interferes with the defendant's exclusionary interests in his vehicle as a property owner. The police interfered with the property right by using the vehicle to obtain information for their own purposes.

The Court then addressed the issue of when the warrant expired. It reasoned that the use of the GPS device did not constitute a search of tangible property so that the seven-day period to execute a search warrant under G.L. c. 276 did not apply. The Court also found that data from GPS devices are not communications under the wiretap statute. The Court concluded that GPS warrants are issued under the common-law authority of the courts and, looking to the Legislature's adoption of G.L. c. 272, sec. 99 I 2 for a 15-day surveillance period for wire communications, imposed a 15-day monitoring period for such common law warrants.