OnStar, Rental Vehicles and the 4th Amendment

I’ve done a couple of posts about cases in which law enforcement officers’ use of OnStar listen in on conversations occurring in a vehicle violates the 4^th Amendment.

As I explained in the post I did last year, a defendant in this situation is arguing that the use of OnStar to track his/her movements constitutes a “search” under the 4^th Amendment and therefore must be done pursuant either to a search warrant or a valid exception to the warrant requirement.

As I noted in that post, the court in that case – an Ohio case – held that the 4^th Amendment wasn’t implicated because the monitoring in that case was done by an OnStar employee – a private citizen – which meant the 4^th Amendment wasn’t implicated by the monitoring. As I’ve explained in other posts, the 4^th Amendment only protects you from searches and seizures conducted by agents of the state, i.e., by law enforcement.

This post is about a case that involved a different use of OnStar: using it to track someone’s movements in a vehicle. The case is U.S. v. Dantzler, 2010 WL 2740003 (U.S. District Court for the Western District of Louisiana 2010), and this is how it arose:

Riley D. Dantzler came to the attention of area law enforcement agencies . . . during their investigation of narcotics distribution . . . in Morehouse Parish, Louisiana. . . . [T]he investigation uncovered that Dantzler of Houston was the supply source for crack cocaine, powder cocaine, and marijuana for the Bastrop area. . . .

[T]he [Morehouse Parish Sheriff’s Office] (MPSO) learned . . . Dantzler would be delivering . . . cocaine to Morehouse Parish. The investigation revealed that . . . Dantzler had rented a 2009 Chevrolet Tahoe bearing Texas License STY440 and VIN 1GNEC23X9R232443 from Enterprise Leasing of Houston. The Tahoe was equipped with the OnStar Global Positioning System that was serviced by OnStar, with an account in the name of Enterprise Leasing of Houston, Texas. . . .

[T]he District Attorney . . . incorporated the[se] . . . facts into a motion he submitted to the 4th Judicial District Court . . . to obtain an order compelling OnStar . . . to help the MPSO track the Tahoe. . . . Deputy Balsamo . . . confirmed . . . the facts in the motion, via an affidavit. . . . Judge Leehy issued an order that . . . required OnStar to furnish the MPSO with . . . assistance necessary to monitor the Tahoe. . . .

On December 11, 2009, at approximately 3:00 p.m., Balsamo contacted Trooper Crooks, and told him that, according to OnStar, Dantzler was en route to Louisiana from Houston. . . . Troopers Crooks and Jordan traveled to Haughton, Louisiana . . . and at . . . initiated surveillance for Dantzler at milepost 33 of Interstate 20, on the eastbound entrance ramp. Some 50 minutes later, an OnStar representative contacted Crooks on his cell phone and helped him identify Dantzler's vehicle as it passed the troopers' location. Crooks entered the interstate, caught up to the Tahoe, and confirmed the vehicle's license plate number. . . . At . . . 5:30 p.m., Crooks contacted Trooper Peters and advised him Dantzler was eastbound on I-20, and possibly transporting . . . cocaine.

U.S. v. Dantzler, supra. Peters followed the Tahoe and saw the “driver-side tires cross the yellow line that separates the travel lane from the median”, twice, so he “initiated a traffic stop of the Tahoe.” U.S. v. Dantzler, supra. After they went through the basics of the traffic stop, Peters asked Dantzler if he could search the Tahoe; Dantzler said he had ecstasy in the console, which he’d be glad to retrieve for Peters. U.S. v. Dantzler, supra. Peters told Dantzler he’d just given the trooper probable cause to search the car, which he did, finding ecstasy and cocaine. U.S. v. Dantzler, supra.

After he was indicted on federal drug charges, Dantzler moved to suppress all the evidence seized from the Tahoe, which resulted in the federal district court judge’s addressing the issue as to whether the OnStar monitoring of Dantzler’s movements constituted a “search” under the 4^th Amendment. U.S. v. Dantzler, supra. Since the monitoring was not conducted pursuant to a search warrant or an exception to the warrant requirement, it would violate the 4^th Amendment – and the evidence would be suppressed – if the monitoring was, in fact, a search. U.S. v. Dantzler, supra.

In ruling on this issue, the federal judge therefore had to decide if the OnStar monitoring was a search. As I’ve noted in an earlier post, most courts have held that using GPS devices to track someone’s movements isn’t a 4^th Amendment search under the Supreme Court’s decision in U.S. v. Knotts, 460 U.S. 276 (1983). As I noted in those posts, the Knotts case involved law enforcement’s use of a “beeper” (1980s technology) to track Knotts movements along public highways. The Knotts Court held that doing this wasn’t a 4^th Amendment search because you have no reasonable expectation of privacy in your movements in public places.

The Knotts Court applied the test the Supreme Court enunciated in Katz v. U.S., 389 U.S. 347 (1967) in holding that monitoring the beeper wasn’t a search. As I’ve noted in other posts, under Katz, I have a 4^th Amendment expectation of privacy in a place or thing if (i) I subjectively believe it’s private and (ii) society accepts my belief as objectively reasonable. The Katz Court held, as I’ve noted before, that it was a search for the FBI to intercept calls Katz made from a phone booth because (i) Katz believed the calls were private and (ii) society in the 1960s found that belief to be objectively reasonable.

The judge also relied on the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), which, as I’ve noted, held that you have no expectation of privacy in information you knowingly share with a third party. In Smith, the Court held that Smith had no 4^th Amendment expectation of privacy in his phone records (calls made, calls received) because he knowingly shared that with the phone company.

Now, back to Dantzler: The federal judge found that he could not “satisfy either prong” of the Katz test used to determine if someone had a reasonable expectation of privacy:

First, although [Dantzler] . . . leased the Tahoe, and thus enjoys some . . . possessory interest therein, he has not adduced any evidence that he subjectively believed his movements in the vehicle would remain free of monitoring -- either visually or electronically, given the preexisting installation of the OnStar system in the vehicle. For instance, there is no evidence that Dantzler did not know that the GM-manufactured Tahoe was installed with the OnStar system. There also is no evidence that Dantzler's rental agreement with Enterprise or OnStar's subscription agreement with Enterprise, precluded monitoring of the vehicle's travels via GPS or disclosure of real-time monitoring data to third-parties, including law enforcement.

U.S. v. Dantzler, supra. The judge also explained that the OnStar system revealed

no more information than law enforcement officers could have observed from constant surveillance of the vehicle from the time that it was rented in Houston until the time of the stop. . . . Moreover, this is not a case where authorities physically installed a tracking device on [Dantzler’s] vehicle. Rather, the officers merely accessed information that defendant's rented vehicle had transmitted to a third-party monitoring service.

U.S. v. Dantzler, supra. The federal judge then explained that Dantzler either

knew or should have known that he was renting an OnStar equipped vehicle that was capable of transmitting the vehicle's location to a monitoring service. As a result, [he] accepted the risk that the information that the tracking system transmitted to the third-party monitoring service could be forwarded to others. See Smith v. Maryland. . . .

U.S. v. Dantzler, supra. The judge then held that

[Dantzler] has failed to establish a reasonable expectation of privacy in the movements of his OnStar-equipped rental car as it traveled upon public thoroughfares, and thus, the authorities' solicitation and receipt of tracking information from a third-party monitoring service subscribed to by the vehicle owner did not constitute a `search’ . . . under the Fourth Amendment.

U.S. v. Dantzler, supra.

Dantzler also challenged the validity of the court order that required OnStar to track the Tahoe’s movements, but he lost on this argument, too:

Although [Dantzler] trumpets the fact that the court order was issued to a Michigan corporation, for a vehicle that was rented in Texas, there is no evidence that Louisiana law enforcement officials acted upon any information provided by OnStar until the vehicle approached the Louisiana border. It was not until the vehicle passed the officers' surveillance point in Louisiana that an OnStar representative actively assisted the state trooper to confirm that the vehicle had passed his vantage point.

U.S. v. Dantzler, supra. I don’t have access to Dantzler’s brief, so all I know is what the judge says in this opinion. According to the judge, Dantzler argued that the evidence had to be suppressed “because the court order issued herein exceeded the jurisdictional boundaries of the issuing court under Louisiana law.” U.S. v. Dantzler, supra. The judge did not directly address this issue because he found that the issue Dantzler’s motion to suppress raised wasn’t “whether the state officials’ actions in arresting him were `lawful’ under state law”, but was whether “the actions of the state officials” violated the 4^th Amendment. U.S. v. Dantzler, supra.