Page 35 - March April 2021 TPA Journal

GPS coordinates of Davis’s phone. Nothing in the Virginia, the Court reviewed “photographs in the
record or the parties’ briefs suggests that MPD record” to determine “whether the part of the
officers ever exceeded the scope of that warrant. driveway where [the defendant’s] motorcycle was
Officer Heckard adhered to its terms by faxing the parked and subsequently searched” qualified as
warrant to Verizon and periodically requesting the constitutionally protected “curtilage.” Defining the
location of Davis’s phone during the approved scope of a search with such specificity makes
window. His requests didn’t mention Beaudion or sense: the Fourth Amendment itself authorizes
Beaudion’s phone. In fact, Heckard testified that he warrants only when “the scope of the . . . search is
did not learn that Beaudion even had a phone until set out with particularity.” Applying that
after Beaudion’s arrest. We therefore conclude that particularized analysis here, the scope of the
the GPS coordinates of Davis’s phone constitute search—as reflected in both the warrant and
the relevant “place searched.” Heckard’s compliance with it—included only the
Beaudion would have us go further. In his view, GPS coordinates of Davis’s phone and her
the Government’s search extended beyond Davis corresponding location.
and her phone to include Beaudion and the car in Having concluded that the “place searched” is
which he and Davis were traveling. That’s so, he limited to location information about Davis, we
argues, because “[t]he purpose of the search now ask whether Beaudion has a Fourth
warrant was to track the movements of [t]he car by Amendment property or privacy interest in that
using the GPS location of the cell phone inside of information. He doesn’t. The Supreme Court
the car.” That argument fails for at least two requires us to consider “whether the person
reasons. claiming the constitutional violation ha[s] a
First, the Supreme Court long ago rejected the legitimate expectation of privacy in the premises
“target” theory of a search under which “any searched.” Indeed, the privacy inquiry
criminal defendant at whom a search was ‘directed’ “supplements . . . ‘the traditional property-based
would have standing to contest the legality of that understanding of the Fourth Amendment.’”
search.” Framing the standing inquiry that way Privacy and property concepts “are often linked”
“would in effect permit a defendant to assert that a because “one who owns or lawfully possesses or
violation of the Fourth Amendment rights of a third controls property will in all likelihood have a
party entitled him to have evidence suppressed at legitimate expectation of privacy by virtue of the
his trial.” What matters is not the purpose of a right to exclude.” That’s why we must remain
search but rather its scope. “[e]ver mindful of the Fourth Amendment and its
Second, the Supreme Court has consistently [property-based] history.”
defined the relevant scope of a search with These principles certainly gave Davis a
granularity. In United States v. Rakas, for example, reasonable expectation of privacy in her phone and
two defendants moved to suppress evidence its location. She lawfully possessed and controlled
discovered during the search of a vehicle in which the phone as its “primary user.” And she owned the
they were passengers. The Court confined its phone number for nearly a decade. But Davis’s
analysis to the specific “portions of the automobile suppression motion is not before us. Rather,
which were searched,” holding that the defendants Beaudion must show a reasonable expectation of
lacked an expectation of privacy “in the glove privacy in a phone and number he did not own.
compartment [and the] area under the seat” where Beaudion directs us to five facts as evidence of
police found contraband. Similarly, in Collins v. his reasonable privacy expectations in Davis’s
phone: (1) he purchased the physical phone and

March/April 2021 www.texaspoliceassociation.com • (512) 458-3140 31