September 2009 /$4

EARN MCLE CREDIT

PLUS

The EB-1 VisaProgram page 12

When LitigantsDeclareBankruptcypage 16

Irvine lawyer Aashish Y. Desaioffers guidance to class actioncounsel on precertificationsettlementspage 23

Pickoff Moves

Use of GPSTracking Devices page 30

2009 California State Bar Meeting

Use of GPSTracking Devices page 30

Answeringa Call from Jailpage 38

Answeringa Call from Jailpage 38

The EB-1 VisaProgram page 12

When LitigantsDeclareBankruptcypage 16 Pickoff

Moves

23 Pickoff MovesBY AASHISH Y. DESAI

Despite the ruling in Chindarah v. Pick Up Stix, class counsel may still be able to thwart efforts by employers to solicit waivers from potential class members inwage and hour disputesPlus: Earn MCLE credit. MCLE Test No. 184 appears on page 25.

30 Where on Earth?BY TRACY J. HASPER AND GORDON F. LULL

While courts have been lenient in approving nonconsensual use of GPS technology in criminal cases, civil law practitioners face a roadblock inCalifornia’s Penal Code

38 Jailhouse CallBY ANTHONY V. SALERNO AND DAVID M. MURPHY

Knowledge of the basics of DUI law, bail procedures, and criminal evidence willhelp a civil law attorney when a client calls from jail

F EATU RE S

Los Angeles Lawyer

the magazine of

the Los Angeles County

Bar Association

September 2009

Volume 32, No. 6

COVER PHOTO: TOM KELLER

09.09

10 Barristers TipsApplying neurolinguistics during trialBY APRIL A. CHRISTINE

12 Practice TipsPermanent residency for immigrants ofextraordinary abilityBY JOSH EFFRON

16 Practice TipsThe impact of an adversary filing for bankruptcy during civil litigationBY SUSAN S. DAVIS AND ALICIA N. VAZ

47 By the BookBad AdviceREVIEWED BY STEPHEN F. ROHDE

52 Closing ArgumentA breakdown in the attorney disciplinesystemBY JERRY ABELES

49 Classifieds

50 Index to Advertisers

51 CLE Preview

DE PARTM E NTS

LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly,except for a combined issue in July/August, by the Los AngelesCounty Bar Association, 1055 West 7th Street, Suite 2700,Los Angeles, CA 90017 (213) 896-6503. Periodicals postage paid at Los Angeles, CA, and additional mailing offices. Annualsubscription price of $14 included in the Association member-ship dues. Nonmember subscriptions: $28 annually; single copyprice: $4 plus handling. Address changes must be submittedsix weeks in advance of next issue date. POSTMASTER: AddressService Requested. Send address changes to Los AngelesLawyer, P. O. Box 55020, Los Angeles CA 90055.

30 Los Angeles Lawyer September 2009

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BUCKMINSTER FULLER once said thathumanity is acquiring all the right technologyfor all the wrong reasons. Today, dramaticadvances in Global Positioning System (GPS)technology may lead attorneys to risk liabil-ity by using it for the wrong reasons.

GPS technology can track persons andproperty through the transmission of elec-tronic impulses. Using GPS devices, trans-portation companies now track cargo via satel-lite. Employers can monitor the movements ofemployees. Ankle bracelets with GPS tech-nology allow law enforcement personnel to sur-veil those convicted of domestic violence andsexual abuse as well as perpetrators of othercrimes. GPS devices are used to track Alz-heimer’s patients. The uses of GPS technologyby civil government include the productionof maps for the study of soil, agriculture, andutilities. Commercial applications include nav-

igation, inventory control, fleet management,and perimeter security. GPS devices can notonly be attached to vehicles but also placed intosneakers, embedded in plastic cards, andinjected under the skin.

GPS technology has evolved so rapidlythat the critical legal issues it raises are yetto be fully addressed by U.S. federal andstate courts, which have developed very lit-tle case law in this area.1 Certain incidents inrecent years suggest not only the wide rangeof GPS applications but also the inevitablelegal issues that will emerge in civil and crim-inal courtrooms:• A Utah man, accused of illegally trappingbobcats, was tracked as he visited trap linesin the northern part of the state. Game war-dens attached a GPS device to his truck,tracked his movements, and then raided hishome. Lawyers for the defendant claimed

that the attachment of a GPS device to theirclient’s pickup truck was illegal.2

• A Vail, Colorado, private investigator, DaveAlan Stark, was arrested and charged withcriminal tampering after he installed a GPSdevice on an SUV in connection with adivorce case and, by doing so, triggered abomb scare.3

• A Southern California woman reported toa private investigative agency that a formerlover was stalking her. Police had agreed totake a felony stalking report but could notpromise any follow-up by overburdeneddetectives. The investigative agency, throughcareful examination of the woman’s vehicle,

Tracy J. Hasper, a California attorney, is a licensedprivate investigator and director of investigationsat Batza & Associates Inc. Gordon F. Lull is a licensedprivate investigator at Batza.

GPS tracking devices raise Fourth Amendmentissues for civil and criminal law practitioners alike

by Tracy J. Hasper and Gordon F. Lull

WHEREEARTH?ON

found a GPS device hard-wired to one of theengine components. A temporary restrain-ing order, and prosecution for electronic stalk-ing, resulted.4

• In Connecticut, one car rental agencywarned in its rental contract of a possible$150 fee for “excessive wear and tear” if therenter drove over 79 miles per hour. What wasnot so prominent in the contract was the factthat each vehicle was equipped with a GPSdevice. The Connecticut Supreme Court foundthe penalty fees to be a violation of the state’sUnfair Trade Practices Act and not, as therental car company argued, simple liquidationof damages.5

• A Commerce, California, man was con-victed of assault with a deadly weapon afterLos Angeles County Sheriff’s deputies, sus-pecting him in a robbery, planted a GPSdevice in his vehicle.6

• High-profile homicide investigations in sev-eral states have included the use of trackingdevices. The technology was partly credited,to cite one example, for the conviction ofScott Peterson in the murder of his wife andunborn son.7

• According to published reports, JoumanaKidd planted electronic devices on vehiclesoperated by her husband, NBA star JasonKidd, to help prove charges of infidelity intheir high-profile divorce case.8

Attorneys contemplating the use of GPStechnology in any context should educatethemselves on how the technology actuallyworks, the best way it can be deployed to aidin resolving legal matters, and whether theyface liability for using it. To address theseissues effectively, attorneys learning aboutthe technology must also become familiarwith the constitutional framework withinwhich future cases will be decided. They cando so by examining the guidance that can beextrapolated from the existing case law thatemerged as courts addressed older, relatedtechnology. Attorneys who use, or allow theiragents to use, GPS technology must particu-larly weigh and consider its implicationsregarding the issues of search and seizureand reasonable expectations of privacy.

How GPS Devices Work

GPS technology involves global satellites andradio navigation.9 With breathtaking accu-racy, it answers the fundamental question,“Where on the earth am I?” It does so byusing three components: space satellites, acontrol center, and a user device. The spacecomponent consists of 24 satellites, with fourequally spaced satellites in six separate orbitalplanes. These satellites orbit the earth twicedaily, transmitting signal information to earth.

The control component, headquarteredat Schriever Air Force Base, Colorado, mea-sures incoming signals from the satellites and

then uploads precise orbital transmissiondata back to the satellites. The data may besent in subsets to GPS receivers (the usercomponent) in the form of radio signals.

The GPS user component consists of thedevices that receive the data and covert it(through triangulation) to indicators of posi-tion and time. Basically, the receiver unit cal-culates how far it is from three satellites bycomparing the time a signal is sent with thetime it is received. The time difference indi-cates the distance of the receiver from thesatellite. By comparing the distances of thethree satellites, the GPS receiver can mapprecisely where the user is and display thelocation electronically. Depending upon thetype of the receiver and its sophistication,GPS technology can provide a location withaccuracy to less than three meters (just under10 feet).

Clearly, GPS technology can deliver pre-cise data. It also leaves a credible, recoverablerecord of the specific movement, in time andspace, of the object being tracked. This raisesa tangled skein of critical issues that courtswill have to address, including who ownsthe data.

Because GPS technology—with its capa-bility of allowing a person to monitor some-one else’s precise movements for weeks, oreven months, at a time—represents a signif-icant departure from previous technologies,it raises, as never before, decisive concernsabout threats to personal privacy. “Where onthe earth am I?” is an acceptable question, butGPS technology can answer questions such as“Where on the earth is my husband?” “Whereon earth is my employee?” or, “Where onearth is the person or contraband that is thesubject of this criminal investigation?”

What the California Penal Code, the U.S.Constitution, and judgments in criminal mat-ters all demonstrate is that law enforcementagencies, attorneys, their clients, and theiragents should be very cautious when employ-ing GPS devices to track people or property.To avoid potential liability, careful consider-ation must be given to Fourth Amendmentprotections and to reasonable expectations ofprivacy.

In devising state and federal criminalstatutes in this area, legislators generally havebeen guided by concerns over the privacy ofcitizens. In California, the Penal Code is clearregarding what is, and is not, permissiblewhen installing GPS devices on automobilesfor non-law enforcement purposes.

Section 637.7 of the California Penal Codestates:

(a) No Person or entity in this stateshall use an electronic tracking deviceto determine the location or move-ment of a person. (b) This section shallnot apply when the registered owner,

the lessor, or lessee of a vehicle hasconsented to the use of the electronictracking device with respect to thatvehicle. (c) This section shall not applyto the lawful use of an electronic track-ing device by a law enforcementagency. (d) As used in this section,“electronic tracking device” meansany device attached to a vehicle orother movable thing that reveals itslocation or movement by the trans-mission of electronic signals.Section 637.7(f) has particular relevance

to attorneys and the agents they hire:A violation of this section by a person,business, firm, company, association,partnership, or corporation licensedunder Division 3…of the Business andProfessions Code shall constitutegrounds for revocation of the licenseissued to that person, business, firm,company, association, partnership, orcorporation.…When attorneys instruct investigators

during the course of civil litigation, theymust be adamant that when it comes to elec-tronic tracking devices, no wiggle room existsregarding the specific language in the crim-inal statute. The installation of GPS tech-nology on a vehicle is legal only when it isundertaken with the permission of the vehi-cle’s owner or with the approval of lawenforcement.

Constitutional Implications

The protection provided by the U.S. Con-stitution’s Fourth Amendment “against unrea-sonable searches and seizures” extends to anindividual’s property and effects as well as hisor her person. Attorneys seeking guidancefor conducting investigations in connectionwith civil litigation will find that case lawinvolving the use of GPS devices in civil mat-ters is virtually nonexistent. Therefore, coun-sel must rely upon the larger analytical frame-work provided by criminal statutes and courtfindings in criminal matters involving GPS andits predecessor technology.

When the U.S. Constitution was written,the most likely search and seizure would havetaken place under the color of military author-ity and upon suspicion of criminal activity.Those arguing that a search was warrantedprobably would have offered proof of itsreasonableness with evidence from infor-mants and personal observation.

Evolving technologies added more effec-tiveness to the arsenal of law enforcement butalso raised myriad questions regarding theapplicability of the Fourth Amendment tothe newer crime fighting tools. In the earlytwentieth century, authorities found theiractivities evolving from trailing a suspiciousbuggy on horseback to tracking automobiles

32 Los Angeles Lawyer September 2009

using a battery-powered radio transmitteror beeper. A beeper device, clandestinelyattached to a suspect’s car, would periodicallyemit a radio signal. Although the transmissiondistance was limited, radio beepers allowedlaw enforcement to monitor the strength ofthe signal and judge the distance of the vehi-cle being monitored. The benefits of beepersas an aid to vehicle surveillance by lawenforcement were clear. Even if a suspectwas “lost” during surveillance, as long asthe transmitter continued sending a signal, lawenforcement could calculate its distance fromthe subject vehicle and reestablish visualobservation.

A large body of case law developed overthe implications of beeper technology andFourth Amendment rights. Federal courtsstruggled with whether attaching a beeper tosomeone’s vehicle constituted a seizure, orwhether monitoring a beeper could be con-sidered a search. They grappled with defin-ing a person’s reasonable expectation of pri-vacy for his or her vehicle when it is parked,or when it is operating, on a public street.When courts ruled on Fourth Amendmentissues regarding beeper technology, theyaddressed two distinctly different issues: theinstallation of a device, and tracking a sub-ject vehicle. The principles extracted fromthese criminal law cases provide an analyt-ical foundation for assessing how courtswill apply constitutional principles to the useof GPS technology.

In 1967, in Katz v. United States, the U.S.Supreme Court considered the appeal of aCalifornia man who placed telephone callsfrom a Los Angeles public phone booth toBoston and Miami.10 FBI agents had placeda listening and recording device on the out-side top of the booth. This device yieldedinformation that was admitted at the defen-dant’s trial in the U.S. District Court for theSouthern District of California, and he wasconvicted on charges of transmitting wager-ing information. The court of appealsaffirmed the conviction, finding that noFourth Amendment right had been violatedbecause the installation of the device involved“no physical entrance” to the space occu-pied by the defendant.

The Supreme Court reversed the convic-tion, holding that government agents hadviolated the privacy on which the defendantrelied. Further, the Court ruled that the eaves-dropping activities constituted search andseizure. Noting that the Fourth Amendmentcovered not just the seizure of goods but oforal statements as well, the Court found that“the Fourth Amendment protects peoplerather than places [and] its reach cannot turnon the presence or absence of a physicalintrusion into any given enclosure.” JusticeHarlan’s concurring opinion in Katz conveys

his understanding of “a two-fold require-ment” in determining whether a privacy pro-tection applies to an individual: 1) “a person[must] have exhibited an actual (subjective)expectation of privacy,” and 2) “the expec-tation [must] be one that society is preparedto recognize as ‘reasonable.’”

The Supreme Court directly addressedthe issue of whether monitoring beeper sig-nals constitutes illegal search and seizure inUnited States v. Knotts.11 In this 1983 case,Minnesota law enforcement officers, believ-

ing that a suspect was involved in the man-ufacture of illegal drugs, arranged for theplacement of a radio transmitter in a containerof chloroform that was later sold to him.Using the beeper signals transmitted by thedevice, police tracked the defendant to asecluded Wisconsin cabin. After several daysof visual surveillance, police secured a searchwarrant, searched the cabin, and found adrug laboratory. The beeper, however, wasinstalled without a warrant. The defendantwas convicted in federal district court for con-spiring to manufacture controlled substances,but the court of appeals reversed the con-viction, finding that monitoring the beepersignal violated the Fourth Amendment.

Looking back, in part, to its findings inKatz in 1967, the Supreme Court held thatmonitoring beeper signals did not violate anylegitimate privacy expectation on the part ofthe defendant, and therefore no search or

seizure had occurred. “The beeper surveil-lance,” the Court found, “amounted princi-pally to following an automobile on publicstreets and highways. A person traveling in anautomobile on public thoroughfares has noreasonable expectation of privacy in his move-ments.” Furthermore, it held that “[n]othingin the Fourth Amendment prohibited thepolice from augmenting their sensory facul-ties with such enhancement as science andtechnology afforded them in this case.”

The next year, in United States v. Karo, a

Drug Enforcement Administration (DEA)agent learned through a government infor-mant that three defendants had ordered 50gallons of ether, which they intended to usein extracting cocaine from imported gar-ments.12 The DEA obtained court autho-rization to install a beeper in one of the con-tainers holding the ether. When Karo, one ofthe defendants, picked up the containers fromthe informant, DEA agents, following theradio signals, pursued the vehicle back to hisresidence. Subsequently, the monitored con-tainer was moved to four more locations,the last of which was a locker—jointly rentedby two defendants in the case—in a com-mercial storage facility. Ultimately, the con-tainer was taken to the home of one of thedefendants, a warrant was executed, cocainefound, and the defendants arrested for a vari-ety of offenses related to the production andsale of cocaine. The defendants filed a pretrial

Los Angeles Lawyer September 2009 33

ment and privacy rights.18 The case involvedMichael Sveum, who had been convicted in1996 of stalking his girlfriend, JamieJohnson, and was imprisoned until 2002.In 2003, Johnson advised police that Sveumwas stalking her again. Based upon Sveum’sprevious stalking conviction as well as infor-mation implicating his sister in assisting himwhile he was in prison in stalking Johnson,police successfully sought a warrant autho-rizing use of a battery-powered GPS device.They fastened the device with duct tape anda magnet to the undercarriage of Sveum’svehicle while it was parked in his driveway.For five weeks police tracked the where-abouts of his vehicle, including when it wasparked in his residence garage and at hisplace of employment. The detailed trackinginformation provided by the GPS device wasused to obtain a warrant to search his homeand vehicle. This information, along withevidence seized through the warrant, led toSveum’s conviction and a prison sentence ofseven and one-half years.

In his appeal, Sveum argued that the GPStracking information should not have beenadmitted due to the “overly broad” warrant.The prosecution responded that no searchor seizure occurred in violation of the FourthAmendment. Sveum conceded that monitor-ing his vehicle on public roadways did notimplicate the Fourth Amendment; however,he argued that information regarding thelocation of his vehicle while it was out of pub-lic view—in his garage and his employer’sgarage—should have been suppressed.

The appellate court, citing Knotts andKaro, affirmed Sveum’s conviction:

The State responds that no FourthAmendment search or seizure occurswhen police attach a GPS device tothe outside of a vehicle while it is in aplace accessible to the public and thenuse that device to track the vehiclewhile it is in public view. We agreewith the State. At the same time, weurge the legislature to consider regu-lating both police and private use ofGPS tracking technology.19

Relying upon Garcia, the court furtherstated, “We also agree with the State thatthe police action of attaching the GPS deviceto Sveum’s car, either by itself or in combi-nation with subsequent tracking, does notconstitute a search or seizure.”

The court underscored its larger concernregarding future uses of GPS devices:

So far as we can tell, existing law doesnot limit the government’s use of track-ing devices to investigations of legiti-mate criminal suspects. If there is noFourth Amendment search and seizure,police are seemingly free to secretlytrack anyone’s public movements with

36 Los Angeles Lawyer September 2009