New Federal Rule of Criminal Procedure addresses warrants for tracking devices.

On December 1, 2006, Federal Rule of Criminal Procedure 41 was substantially revised. The modifications set forth the procedure for federal law enforcement officers and agents to obtain, process, and return warrants to install and use tracking devices to include global positioning system (GPS) technology. (1) The new rule does not address whether law enforcement officers need a warrant to install or monitor a tracking device. Whether a warrant is required to install a tracking device, or track a vehicle or other object, revolves around expectations of privacy. If an intrusion into an area where there is a privacy expectation is necessary to install the device, (2) or the vehicle or object will be tracked in an area where one has a privacy expectation, a warrant is required. If there is no such intrusion or tracking the device will not infringe on privacy, a warrant is not required. Agents and officers are encouraged to read the text of the change at http://www.uscourts.gov/rules/supctll05/CR_Clean.pdf. Highlights of due changes include the following:

* Rule 41(b)(4) Authority to Issue the Warrant: A magistrate judge in the district where the device will be installed may issue a warrant to install a tracking device. The issuing magistrate judge may authorize tracking in the district where the device will be installed, as well as any other district in which it may travel.

* Rule 41(e)(2)(B) Contents of the Warrant: The warrant must contain the identity of the person or property to be tracked and that of the magistrate judge to whom the return on the warrant will be made. It also must denote a reasonable period of time that the device may be used, not to exceed 45 days. Other extensions for not more than 45 days may be granted for good cause shown. (3) The warrant must include a command that the device be installed within 10 days or less from the time the warrant is issued and during the daytime unless the magistrate, for good cause shown, authorizes another time, along with a command that there will be a return on the warrant.

* Rule 41(f)(2) Return on Warrant: Within 10 days after use of the device has ended, the officer executing the warrant must make the return to the magistrate judge specified in the warrant. The return must contain the exact dates and times of both installing the device and the period in which it was used. The return must be served on the person who was tracked or whose property was tracked within 10 days after use of the device has ended. (4)

* Rule 41(f)(3) Delays in the Return: Upon request of the government, the magistrate judge may delay providing the notice required by the return.

Endnotes

(1) Title 18, Section 3117, U.S. Code defines a tracking device as an electronic or mechanical device that permits the tracking of the movement of a person or object.

(2) An intrusion may be necessary to reach the vehicle, as when it is parked within curtilage, or to complete an internal GPS installation that would require access to the vehicle's passenger compartment or internal wiring.

(3) If the results of the tracking device thus far disclose evidence of criminal activity, that fact always should be mentioned in the request for an extension.

(4) Any delay in the required notification must be one "authorized by statute." See 18 U.S.C. [section]3103a (2006).

Keith Hodges, a senior instructor in the Legal Division at the Federal Law Enforcement Training Center in Glynco, Georgia, prepared this Legal Brief.