Sunday, October 10, 2010

Tracking Devices, Abandoned Property and Bailments

You’ve probably seen one of the stories about the California student who found a GPS tracking device on his car.

As the Wired story explains, Yasir Afifi, a U.S. citizen and 20-year old business marketing student at Mission College in Santa Clara, discovered the

the device . . . when he took his car to a local garage for an oil change. When a mechanic at Ali’s Auto Care raised his Ford Lincoln LS on hydraulic lifts, Afifi saw a wire sticking out near the right rear wheel and exhaust.

Garage owner Mazher Khan . . . also saw it. A closer inspection showed it connected to a battery pack and transmitter, which were attached to the car with a magnet. Khan asked Afifi if he wanted the device removed and when Afifi said yes, Khan pulled it easily from the car’s chassis.

As the Wired story also explains, a few days later FBI agents showed up at Afifi’s apartment and told him “`We’re here to recover the device you found on your vehicle. It’s federal property. It’s an expensive piece, and we need it right now.’” According to a story in the San Jose Mercury News, Afifi gave the GPS device to the FBI agent who demanded it . . . so in a sense, the story is over.

As you may have noticed, there was a lot of discussion of the incident online, some of which included comments to the effect that Afifi wasn’t legally obligated to give the tracking device to the FBI because, by putting it on his vehicle, the FBI abandoned any property interest in it. So I decided to do this post on whether the GPS device really was abandoned property and/or whether there was any legal reason why Afifi would have to return it to the FBI.

We’ll start with abandoned property. As the legal encyclopedia American Jurisprudence explains, abandoned property is property as to which the

owner has voluntarily relinquished all right, title, claim, and possession, with the intention of terminating his or her ownership, but without vesting ownership in any other person, and with the intention of not reclaiming any future rights therein. Or, as sometimes stated, the term `abandonment,’ as applied to personal property . . . , means the act of voluntarily and intentionally relinquishing a known right. . . . It involves a relinquishment of possession, and occurs because an owner no longer desires to possess the property.

1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property § 3 (notes omitted).

I’m sure the FBI had no intention of “voluntarily and intentionally relinquishing” its ownership interest in the GPS device agents attached to Afifi’s vehicle. The FBI only meant for the device to stay in place on his vehicle for a given period of time for the purpose of tracking his movements. That, in turn, cuts against the notion that the FBI abandoned the property. As American Jurisprudence also explains,

[m]ere relinquishment of the possession of a thing is not an abandonment of it in the legal sense of the word, for such an act is not wholly inconsistent with the idea of continuing ownership; the act of abandonment must be an overt act or some failure to act which carries the implication that the owner neither claims nor retains any interest in the subject matter of the abandonment.

1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property § 7. So if Afifi had found the GPS device in a trash can, that would presumably have given rise to a legitimate inference that the owner had abandoned the property with the intention of relinquishing ownership of it. And as the legal encyclopedia Corpus Juris Secundum explains, abandoned personal property “becomes the property of the person first appropriating it with the intention to possess.” 1 C.J.S. Abandonment § 15. In other words, if Afifi had found the device under circumstances which clearly indicated it had been abandoned, it would have become his property.

The problem with the abandonment theory, of course, is that the device wasn’t found in a trash can. Instead, it was found carefully installed on Afifi’s vehicle, which inferentially suggests that the person(s) who put it there intended to come back for it. The FBI obviously would have had a much stronger argument here if they’d attached a sticker to the device, one that said something like “Property of the FBI – If found, please return.” Such a sticker, as I understand the law of abandoned property, would have put the finder on notice that the property had not, in fact, been abandoned . . . but was something else.

(Another circumstance that might have done the same thing was the fact that, as the Wired story notes, someone who apparently knows their GPS devices identified this one as an “Orion Guardian ST820 tracking device made by an electronics company called Cobham, which sells the device only to law enforcement.” If Affifi realized that, then this should have had the same effect as the sticker, i.e., should have put him on notice that the device was not, in fact, abandoned property.)

What else, you ask? Well, I see two logical possibilities, one of which, however factually unlikely it may be, is that the GPS device was lost property. According to Corpus Juris Secundum, lost property is “property which the owner has unwittingly or unintentionally allowed to pass out of his or her possession”. 36A C.J.S. Finding Lost Goods § 1. Since the owner didn’t intend to surrender ownership of the property, the rights of someone who finds it are much less than in the case of abandoned property. As a Maryland court explained, “one who finds lost personal property holds it against all the world except the rightful owner.” Ganter v. Kapiloff, 69 Md. App. 97, 516 A.2d 611 (Maryland Court of Appeals 1986). This court also noted that “[g]enerally, it may be said that the finder of lost property holds it as a bailee for the true owner.” Ganter v. Kapiloff, supra.

That brings to the other logical possibility: bailment. As Wikipedia explains, the term bailment “describes a legal relationship” in which “physical possession of personal property . . . is transferred from one person (the 'bailor') to another person (the 'bailee').” As Wikipedia also noted, a bailment differs “from a contract of sale or a gift of property, as it only involves the transfer of possession and not ownership.” When I check a bag with an airline, that’s a bailment; I’m giving the airline temporary possession of my bag, not ownership of it.

And that brings me to the only case I could find in which the possession of a tracking device became an issue. The case – Aegis Investigative Group v. Metropolitan Government of Nashville and Davidson County, 98 S.W.3d 159 (Tennessee Court of Appeals 2001) arose when the Aegis Investigative Group (“Aegis”) filed a lawsuit in the “the First Circuit Court for Davidson County on October 30, 1998, alleging that employees of the Metropolitan Nashville Davidson County Police Department removed an electronic tracking device from the vehicle of the wife of one of its clients.” Aegis v. Metropolitan Government, supra. The case arose when Aegis,

a private investigating firm, was hired to watch the wife of a Murfreesboro client for information in a divorce action by placing an electronic tracking device on her car. After the wife discovered the device, she came to the Metropolitan Nashville Police Department to have the device removed as part of a stalking . . . . Metro held the device as potential evidence in a stalking and illegal use investigation. . . . No charges were placed against Aegis. Notwithstanding the conclusion of its investigation, Metro did not return the device to [Aegis] for some five (5) months. . . .

Aegis v. Metropolitan Government, supra. Aegis claimed Metro had a duty to return the device, but Metro argued that it did not. Aegis v. Metropolitan Government, supra. In ruling on the issue, the Court of Appeals held that with regard to the device, Metro was “a bailee implied in law, which is commonly referred to as a constructive bailee.” Aegis v. Metropolitan Government, supra. It explained that while bailments usually arise from a

contractual relation. . . . [t]here is also a class of bailments which arise by operation of law. Such a constructive or involuntary bailment arises where the person having possession of a chattel holds it under such circumstances that the law imposes on him the obligation of delivering it to another. . . .

Aegis v. Metropolitan Government, supra. The court also found that in a situation such as this, i.e., when “the bailment is for an indefinite time,” no cause of action for unlawful detention of the property arises unless and until the owner demands its return. Aegis v. Metropolitan Government, supra. Since the court found that Aegis had not demanded the return of the property, it held that Metro “rightfully acquired” possession of the device and had no “duty of care” to deliver it to Aegis absent a demand for its return. Aegis v. Metropolitan Government, supra.

If we apply that reasoning to the Afifi case, then Afifi presumably was a constructive bailor of the device and was, once the FBI demanded it back, legally obligated to return it.

There’s also the other, non-property issue, which occurred to me when I first heard about the story and which, I later discovered, the FBI agent raised when he confronted Afifi demanding the return of the device. The San Jose Mercury News article says the FBI agent told Afifi he’d be arrested for obstructing justice if he didn’t return the device.”

Since the tracking device was being used to gather evidence as part of an investigation into criminal activity, failing to return it (and, even worse, destroying it) could presumably be prosecuted as obstruction of justice . . . as long as Afifi was on notice that it was, in fact, being used by the government for that purpose.


Anonymous said...

Here are some pictures of what the device looks like: &

Too be honest, had I found it my first thought would have been 'pipe bomb' and I'd've smashed it to bits.

My second thought would be to attach it to a city bus and "f" the FBI.

Maybe he could sue them for mental angish if he claims he thought it was a bomb and it scared him.

Anonymous said...

I saw this posted on the ABC News wesbite by someone: "Innocent people do not end up with FBI tracking devices on their vehicles and they do not become the focus of such attention from the FBI." I laughed really hard when I read this as this sounded like something that my dad would say. But people forget (or refuse to remember) all the crap that the FBI has pulled!

Remember the guys from Boston who were framed for murder that the FBI allowed sit in jail for decades? Or Richard Jewel?

How about all the FBI files on Dr. MLK and people like that?

And how about all those idiots who were caught cheating on an open book test? Hundreds of 'special' agents caught cheating.

The only thing that protects us from the government are our guns. Ya, I know. That sounds crazy, right? But think of all the regular people whose lives have been ruined by illegal or immoral crap pulled by the government.

You are not free if you are monitored. That is why they put ankle bracelets on criminals. NOT FREE PEOPLE !

SeaDrive said...

Lots of unanswered questions. Could it be obstruction of justice just to remove it from the car? What if he mailed it to the FBI is DC? What if he mailed it to city or state police?

Susan Brenner said...

Good questions, SeaDrive.

A prosecutor might argue that it was obstruction of justice to remove the device IF it was apparent to Afifi and/or whoever removed it that it was a law enforcement device being used to collect potential evidence in a possible criminal case.

As to mailing it, well, that's a good question (or good questions). If he didn't know whether it was being used the federal or state authorities, I don't see how he'd know to which to mail it. . . . so I don't see how mailing it to the wrong agency would constitute knowingly obstructing, or attempting to obstruct, justice.

Anonymous said...

Since you cannot be compelled to testify against yourself, I don't see how you can obstruct justice if you are the target of the investigation.

Susan Brenner said...

Anonymous (latest),

The 5th Amendment protects you from being compelled by a court to give testimony that incriminates you.

Destroying evidence, altering evidence, hiding evidence or otherwise obstructing justice usually involves conduct, not "testimony" under the 5th Amendment . . . and there's no constitutional prohibition on prosecuting someone for conduct that violates the law.

Professor Don said...

OK, I think I can agree with the arguments that support the FBI legally demanding a return.

My question is did Afifi have a legal obligation to protect the device? Couldn't he have just thrown it away (perhaps after removing the batteries) or destroyed it. Doesn't bailment require the consent of both parties?

What happens when the FBI drops off a "Sacred White Elephant" at my house and never demands it back. Do I still have to feed it?

Susan Brenner said...

Professor Don,

Whether Afifi had a legal duty to protect and/or preserve the device would depend, IMHO, on whether or not he knew it was a law enforcement device that was being used for law enforcement purposes, i.e., gathering information that might be used as evidence in a criminal case. If he knew that, then destroying it or discarding it could be seen as knowingly obstructing justice by interfering with (probably terminating) the functioning of a device being used to gather evidence, etc.

As to the Sacred White Elephant gifted by the FBI, whether you would have to feed and care for it depends on whether or not its (i) an evidence gathering device or (ii) otherwise an instrumentality of the FBI or some other law enforcement agency. If either is true and you let it come to harm, I assume we'd be back to obstructing justice . . . .

Anonymous said...


I don't quite see how a prosecutor could plausibly argue obstruction of justice if a suspect found a GPS device on his car and pulled it off the car. Suspects do not have an affirmative obligation to let the police tail them, and that's just as true if the police are watching them by following the car in a close distance or using a GPS device.

Orin Kerr

Susan Brenner said...

Hi, Orin,

I don't think the issue here is the same as a suspect's doing his best to avoid officers who are trying to tail in him another vehicle.

One thing that might differentiate this situation is the installation of the device which, I believe, some stories said was done pursuant to a warrant. That might enhance the obligation that derives from the constructive bailment theory discussed in the post . . . since now it's not just a device, it's a device that has constitutionally been installed to collect evidence . . . which then, at least arguably, would mean that removing it is, in deed, obstructing justice.

For what it's worth, there's at least one reported federal case in which the defendants were charged with one count of obstructing justice for "knowingly remov[ing] and thr[owing] away an electronic tracking device attached to" a vehicle. U.S. v. Williams, 650 F.Supp.2d 633, 642 (U.S. District Court for the Western District of Kentucky 2009).

The charge in that case was brought under 18 U.S. Code section 1519, which, as you know, provides as follows:

"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both."