Tag

Warrantless Search Archives | Page 3 of 4 | Fort Worth Criminal Defense, Personal Injury, and Family Law

Jul 07
2
Fort Worth warrantless cell phone search

No More Warrantless Searches of Cell Phones

By | Search & Seizure

Is it a violation of the 4th Amendment prohibition against unreasonable search & seizure for a police officer to search a suspect’s cell phone without a warrant?

Fort Worth warrantless cell phone searchU.S. Supreme Court Holding: YES – The 4th Amendment prohibits officers from searching a suspects cell phone for information without a warrant.

Riley v. California; U.S. v. Wurie, (Consolidated by the Supreme Court in one case) 2014 U.S. LEXIS 4497 (U.S. June 25, 2014)

Riley v. California: In this case, Police officers arrested Appellant and searched the cell phone he was carrying incident to his arrest. The officers discovered photographs and videos on Appellant’s cell phone that were admitted as evidence against him at trial. As a result, Appellant was convicted. The California Court of Appeal affirmed the conviction, holding that the warrantless search of Appellant’s cell phone incident to his arrest was lawful.

U.S. v. Wurie: In this case, Police officers arrested Appellant for distribution of crack cocaine and seized two cell phones from him. Officers searched the call log on one of the cell phones and determined the phone number labeled “my house” was associated with a nearby apartment. Officers went to the apartment and saw the name “Wurie” written on the mailbox. The officers obtained a warrant, searched the apartment and found drugs and firearms.

Appellant filed a motion to suppress the evidence seized from his apartment, arguing the officers violated the Fourth Amendment by searching his cell phone incident to arrest. In reversing Appellant’s conviction, the First Circuit Court of Appeals held the search incident to arrest exception to the Fourth Amendment’s warrant requirement did not authorize the warrantless search of data on cell phones seized from individuals arrested by police officers.

The Supreme Court consolidated the cases, holding that police officers generally may not search digital information on a cell phone seized from an individual who has been arrested, without first obtaining a warrant.

Previously, the court held police officers could conduct warrantless searches of arrestees and possessions within the arrestees’ control, incident to a custodial arrest. The court concluded such searches were reasonable in order to discover weapons or any evidence on the arrestee’s person so that evidence could not be concealed or destroyed.

The court concluded this rationale does not apply to modern cell phones. First, digital data stored on a cell phone cannot be used as a weapon to harm an arresting officer or aid an arrestee in escaping. The court emphasized that police officers may still examine the physical aspects of phone to ensure that it will not be used as a weapon. For example, the court noted a police officer may examine a cell phone to determine whether there is a razor blade hidden between the phone and its case. However, once an officer has secured a phone and eliminated any potential threats the data on the phone cannot harm anyone.

Second, the court stated the government provided little evidence to believe that loss of evidence from a seized cell phone, by remote wiping of the data on the phone, was a common occurrence. Even if remote wiping were a concern, the court listed two ways remote wiping could be prevented. First, the officer could turn the phone off or remove its battery. Second, the officer could put the phone inside a device, called a Faraday bag, that would isolate the phone from radio waves. The court added that Faraday bags are cheap, lightweight, and easy to use and a number of law enforcement agencies already encourage their use. In addition, the court commented that if a police officers are truly confronted with individualized facts suggesting that a defendant’s phone will be the target of an imminent remote wiping attempt, they may be able to rely on exigent circumstances to search that phone immediately.

The court further recognized that cell phones are different from other objects that an arrestee might have on his person. Before cell phones existed, a search of an arrestee generally constituted a small intrusion on the arrestee’s privacy. However, modern cell phones are, in essence, mini-computers that have immense storage capacity on which many people keep a digital record of nearly aspect of their lives. Consequenly, the warrantless search of a cell phone consitutes a significant intrusion upon a person’s privacy. If police officers wish to search a cell phone incident to arrest, they need to obtain a warrant.

Apr 14
0
DWI Blood Draw Defense Lawyers Fort Worth

Warrantless Search: DWI Blood Draw Struck Down as Unconstitutional

By | DWI, Warrantless Search

DWI Blood Draw Defense Lawyers Fort WorthIssue before the Court: “In the absence of exigent circumstances or consent, does Texas Transportation Code §724.012(b)(3)(B) violate the Texas and U.S. constitutional prohibitions against unreasonable searches and seizures where the statute requires law enforcement officers to seize a specimen of a DWI arrestee’s blood without a search warrant in all cases where the officer believes the arrestee has been previously convicted of DWI two or more times?”

Sutherland v. State (2014)- On the night of February 2, 2011, Austin PD Officer Housmans initiated a traffic stop after a vehicle changed lanes without using a turn signal.  Once the vehicle had pulled over, Housmans approached the driver, appellant Sutherland, and, after speaking with him for “a bit,” asked the appellant to step out of the vehicle.  Housmans administered field sobriety tests on appellant, and arrested appellant based on his performance on the tests and on his suspicion that the appellant was driving while intoxicated.  Appellant refused to provide a breath specimen. Dispatch provided Housmans with Texas DPS records showing that appellant had two or more previous convictions for DWI.  The appellant was then transported to the Travis County jail where, ultimately, a blood sample was drawn without appellant’s consent and without a warrant.

Following the trial court’s denial of a motion to suppress evidence of his intoxication, appellant pleaded guilty to the charges but reserved his right to appeal the trial court’s ruling.  The appellant appealed his conviction for felony DWI.  The appellant challenged the constitutionality of the procedure and authority under which a sample of his blood was taken without his consent.  Appellant contends that the trial court erred by denying his motion to suppress the results of the testing done on the sample of his blood taken in such a manner.

Housmans claimed that he relied on the provision of the Texas Transportation Code that required him to obtain a sample of a suspect’s blood whenever he learns that the individual has been convicted two or more times of DWI.  Appellant maintained that, regardless of the mandatory language of the Transportation Code, constitutional protections against unreasonable searches and seizures require that a warrantless search be supported by an established exception to the Fourth Amendment’s warrant requirement, in this case, the exigent circumstances exception.  Appellant further contended that no established exception-exigent circumstances or otherwise – applied here.

According to the Seventh Court of Appeals- Amarillo, the arresting officer was not faced with exigent circumstances such that the natural dissipation of alcohol from appellant’s bloodstream would support a warrantless seizure of a specimen of appellant’s blood.  The arresting officer did not describe any factors that would suggest he was confronted with an emergency or any unusual delay in securing a warrant.  He testified that he made no effort to obtain a warrant because he believed that the law required that he obtain a blood sample under the circumstances presented to him.  The appellant was not transported to the hospital for medical care, the scene of the traffic stop was not very far from the booking facility, and transportation time was not a factor that could be said to lend to the exigency of the circumstances.  Furthermore, while the unavailability of a magistrate may affect whether an exigency exists to justify a warrantless blood draw, a magistrate is available twenty-four hours a day, every day at the Travis County central booking facility.  Therefore, based on these facts, the trial court erred by denying the defendant’s motion to suppress.  Reversed and remanded.

Mar 21
0
Consent search Fort Worth Criminal Defense

When The Police May Search a Home Over Occupant Objection

By | Warrantless Search

Can police obtain consent from a co-tenant to conduct a warrantless search a dwelling after another co-tenant, who objected to the search, is lawfully removed?

Consent search Fort Worth Criminal DefenseThe Supreme Court said YES in Fernandez v. California.  Read more below to see what happened and when the police can search a home without a warrant over a tenant’s objection.

Fernandez v. California (2014) – Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas answered.  She appeared to be battered and bleeding.  When the officers asked Rojas to step out so that they could conduct a search of the apartment, Fernandez came to the door and objected to the search.  Suspecting that he had assaulted Rojas, the officers removed Fernandez from the apartment and placed him under arrest. He was later identified as the perpetrator in the earlier robbery and taken to the police station. An officer later returned to the apartment and, after obtaining Rojas’s oral and written consent and searched the premises where he found several items linking petitioner to the robbery.

At trial, Fernandez moved to suppress the evidence seized in the warrantless search.  The trial court denied Fernandez’s motion to suppress the evidence, and he was convicted.  The California Court of Appeals affirmed the conviction.  It held that because Fernandez was not present when Rojas consented to the search, the exception to permissible warrantless consent searches of jointly occupied premises that arises when one of the occupants present objects to the search, Georgia v. Randolph, did not apply, and therefore, Fernandez’s suppression motion had been properly denied.

In a 6-3 decision, the Supreme Court ruled that police officers may enter and search a home without a warrant as long as one occupant consents, even if another resident has previously objected.  Here, the Court said that Fernandez did not have a right to prevent the search of his apartment once Rojas had consented.  Although an officer usually needs a warrant from a judge to search a home, home searches are legal whenever the officers are able to obtain consent from an occupant.  According to the Court, “A warrantless consent search is reasonable and thus consistent with the 4th Amendment irrespective of the availability of a warrant.” Furthermore, “Denying someone in Rojas’ position the right to allow the police to enter her home would show disrespect for her independence.” The judgment of the Court of Appeals was affirmed.

Nov 11
0
Drug-Sniffing Dog Search

No Solicitors or Drug-Sniffing Dog!

By | Warrantless Search

The Legality of Drug-Sniffing Dog Searches

Drug-Sniffing Dog Search Let’s face it, nobody really likes uninvited guests on their front porch, unless, of course, it is the time of year when the Girl Scouts are selling cookies or little trick-or-treat monsters are out and about.  Aside from that, I’m not too keen on having people drop by unannounced, especially if that person is trying to investigate a crime or conduct a search and seizure.

The United States Supreme Court recently considered a case involving an unannounced (and unwelcome) furry visitor to a man’s front porch.  The question presented was this:  Is a dog sniff at the front door of a suspected drug house by a trained narcotics detection dog a Fourth Amendment “search” requiring probable cause?

In a 5-4 decision authored by Justice Scalia, the Supreme Court said YES, the use of the drug-sniffing dog was an unreasonable search.

Florida v. Jardines, 133 S. Ct. 1409 (2013)-  In 2006, the Miami-Dade Police Department received an unverified tip that marijuana was being grown in the home of respondent Joelis Jardines.  One month later, police took a drug-sniffing dog to Jardines’s front porch, where the dog gave a positive alert for narcotics.  Officers obtained a search warrant, which revealed marijuana plants inside the home.  Jardines was charged with trafficking in cannabis.

At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search.  The trial court granted the motion but the Florida Third District Court of Appeal reversed.  On a petition for discretionary review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court’s decision to suppress, holding that the use of the trained narcotics dog to investigate Jardines’s home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.

The Supreme Court of the United States granted certiorari, limited to the question of whether the officers’ behavior was a search within the meaning of the Fourth Amendment.  The Court held that the front porch of a home is part of the home itself for Fourth Amendment purposes.  While custom typically permits a visitor to approach the home “by the front path, knock promptly, wait briefly to be received, and then leave,” it does not allow a visitor to engage in investigative activity such as bringing a trained drug dog on the porch and allowing it to sniff around for incriminating evidence.  Therefore, the government’s use of trained police dogs to investigate the home and its immediate surroundings was a “search” within the meaning of the Fourth Amendment.

To learn more about Police Canine Training, check out our friend and trainer Steve Scott at Scott’s Police K9 in North Texas.

Jul 23
1

Border Patrol Agents Violate Fourth Amendment in Terry Stop But Conviction Upheld

By | Warrantless Search

United States v. Hernandez-Mandujano, (5th Circuit June 27, 2013)

Border PatrolBorder Patrol agents stopped Appellant as he was driving on Interstate 10, approximately 450 miles from the nearest United States-Mexico border crossing. The agents believed Appellant was transporting illegal aliens because he was driving an SUV; had both hands on the steering wheel, and he was not exhibiting the relaxed nature of most drivers. In addition, Appellant’s speed dropped from 70 miles per hour to 60 miles per hours as the agents followed him, and when the agents pulled alongside Appellant, he stopped talking to the person in the passenger’s seat.

The agents learned the car was registered to a woman; however, it had not been reported stolen, had no outstanding warrants or criminal activity associated with it, and had not recently crossed the border. During the stop, Appellant told the agents he was a Mexican national in the United States illegally. The government indicted Appellant for reentry without permission by an alien deported after conviction for an aggravated felony, in violation of 18 U.S.C. § 1326(a) and (b)(2).

At trial, Appellant moved to suppress his statements to the agents, arguing the stop could not be considered an extended border search and the agents lacked reasonable suspicion to conduct a Terry stop. The district court agreed the stop was not an extended border search, but held the agents had reasonable suspicion of illegal activity to support a Terry stop.

The 5th Circuit Court of Appeals held the agents did not have reasonable suspicion to stop Appellant. First, the stop occurred 450 miles from the nearest border crossing and there was no reason to believe Appellant had come from the border. Second, Appellant’s driving posture speed change and the fact the SUV was registered to a woman was not indicative of criminal activity. Third, the SUV had not been reported stolen, had no outstanding warrants or criminal activity associated with it, and had not recently been documented as crossing the border. Finally, the agents could not identify anything about the SUV that rendered it more likely than other SUVs to be transporting illegal aliens.

Even though the agents violated the Fourth Amendment in stopping Appellant, the court still denied Appellant’s motion to suppress. The court noted previous Fifth Circuit case law held an alien’s INS file and identity are not subject to suppression when law enforcement officers learn of a deported alien’s unlawful reentry after an allegedly unconstitutional stop.

Apr 30
0
Fort DWI Blood Draw Lawyers

No Per Se Exigency for Warrantless Blood Draw in DWI Cases

By | DWI, Warrantless Search

U.S. Supreme Court holds:  “In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify a blood test without a warrant.” 

Fort DWI Blood Draw LawyersMissouri v. McNeely, No. 11-1425 (U.S. Apr 17, 2013). The Defendant was charged with DWI.  He filed a motion to suppress the results of a warrantless blood draw that was taken without a valid search warrant.  The trial court granted the motion to suppress.  The Missouri Supreme Court affirmed the grant of the motion.  The U.S. Supreme Court granted certiorari to resolve a split of authority.

The U.S. Supreme Court affirmed the Missouri Supreme Court. Kennedy concurred. Roberts concurred in part and dissented in part. Thomas dissented. The question was whether the natural metabolization of alcohol in the bloodstream presented a per se exigency that justified an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.  The Court held that it did not.  While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, it does not do so categorically.

Whether a warrantless blood test of a drunk-driving suspect is reasonable has to be determined on the totality of the circumstances.  Any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.  The general importance of the interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.  Because the case was argued on the broad proposition that drunk-driving cases present a per se exigency, the Court was not provided with an adequate analytic framework for a detailed discussion of all the relevant factors to determine the reasonableness of acting without a warrant.

Feb 22
0
Warrantless Search GPS Tracking

Warrantless Search with GPS Device

By | Warrantless Search

Warrantless Search GPS TrackingNew Case from the 5th Circuit (Federal):  United States v. Andres, 2013 U.S. App. LEXIS 143 (5th Cir. Tex. Jan. 3, 2013)

Synopsis:  In December 2009, federal agents conducting an investigation into a large drug trafficking operation installed a GPS device underneath a pick-up truck, with a trailer attached to it, while it was parked on a public street after it had been loaded with twenty kilos of cocaine. Federal agents monitored the truck’s movements as it drove toward Chicago.

The agents contacted the Illinois State Police, gave them information about the truck, and told them they would like to have the drugs discovered during a traffic stop so they would not have to disclose the existence of a federal investigation. After being provided GPS information on the truck, a police officer saw it on an interstate highway and began to follow it.

The officer conducted a traffic stop on the truck for improper lane usage and improper lighting after he saw the trailer was swaying back and forth within its lane and its taillights were flickering.  After the officer wrote a warning ticket, he asked Appellant to get out of the truck so he could talk to him about the taillight problem.

After inspecting the electrical connection between the truck and trailer, the officer handed Appellant his clipboard so he could sign the ticket.  While Appellant was signing the ticket, the officer asked him where he was coming from.  Appellant told the officer he was coming from Joliet, but the officer knew this could not be possible based on the surveillance the officers had been conducting.  The officer also noticed that Appellant had begun to fidget and move his feet and arms around very nervously.  When the officer asked Appellant if he had any drugs in the truck, he said, “No” and then consented to a search with a drug dog.  The drug dog alerted and the officers found twenty kilos of cocaine hidden in the truck.

Appellant argued the drug evidence should have been suppressed because the initial traffic stop was a pretext and not based on any actual traffic offense.  Even if the traffic stop was valid, Appellant claimed the officer’s continued questioning and dog search were not reasonably related to the original reasons for the stop.

First, the court held the officer was justified in stopping Appellant based on the traffic violations he saw.  Second, the court held the officer’s continued seizure of Appellant after the reason for the initial traffic stop ended was supported by reasonable suspicion.  It was reasonable for the officer, who had stopped Appellant for a safety violation concerning his trailer, to ask him to get out of his truck to look at the trailer and discuss the problem.  In addition, the officer’s question, asking Appellant where he was coming from, occurred before the officer had finished dealing with the traffic offenses and did not extend the scope or duration of the stop. Appellant’s untruthful answer created reasonable suspicion that justified his continued detention, which ultimately led to the officer receiving consent to search the truck.

Appellant also argued the warrantless placement and use of the GPS device to monitor the movements of his truck violated the Fourth Amendment in light of the United States Supreme Court decision in U.S. v. Jones, decided in 2012. The Fifth Circuit Court declined to rule on whether warrantless GPS searches are per se unreasonable.  Even assuming a Fourth Amendment violation had occurred, the court held the evidence should not be suppressed in this case because in December 2009, it was objectively reasonable for agents in the Fifth Circuit to believe that warrantless GPS tracking was allowed under circuit precedent.

Dec 07
0

A Couple of Troubling Cases: Drug Dogs and Consent Searches

By | Warrantless Search
The following cases were reported to me as “interesting cases,” but I would reclassify them as “troubling” (especially the second one).  We might just see these again sometime soon if the CCA decides to hear them.
 
Duration of traffic stop not unreasonable, despite officer’s remark that the purpose of checking passenger’s license was to “buy time” until the K-9 dog arrived.
Campbell v. State, 2012 WL 3201923 (Tex.App.-Tyler Aug 08, 2012) (NO. 12-11-00324-CR)
Quoting from the opinion: “Appellant contends that the true purpose of the stop ended when he was cleared of any outstanding warrants at 12:44 a.m. In his brief, Appellant points out that the evidence indicates that (1) the officers did not smell marijuana in the vehicle, (2) [officers] discussed that Appellant and [passenger] were calm, but that their demeanor might change when the K–9 unit arrived, and (3) [officer] remarked that [other officer] was just buying some time by talking to [passenger]….We initially note that [officer’s] remark concerning [other officer’s] ‘buying time’ is troubling.  But the trial court was not required to examine [the] statement in a vacuum.  The officers were justified in checking whether there were any outstanding warrants for [passenger]….The traffic stop may have concluded more quickly if the officers had requested information on outstanding warrants for Appellant and [passenger] at the same time.  But the officers were under no obligation to investigate the situation in any particular order.”Police Helicopter
D’s consent to house search deemed “voluntary,” despite presence of twenty officers on D’s property and a police helicopter hovering overhead.
 
Schield v. State, 2012 WL 3228829 (Tex.App.-Hous. (1 Dist.) Aug 09, 2012) (NO. 01-11-00466-CR, 01-11-00467-CR)
Quoting from the opinion:  “‘An environment of few or many officers is significant in determining the validity of a consent to search,’ and the Court of Criminal Appeals ‘has been critical of consent given in the face of numbers of armed officers.’….We find this case distinguishable…Appellant was behind a tall privacy fence on his property when [officer] called and asked him to come to the front of the property….[I]n Lowery, one of the officers had a pistol drawn, and at least five officers were inside the apartment before the seventeen year-old gave verbal consent, but here only two officers, with no guns drawn, approached the middle-aged Appellant at his gate to ask for consent….Appellant further testified that none of the officers yelled at him and that he made small talk with the officers before they asked him to sign the consent form.”
Apr 19
1
Fort Worth Weapon Charges Defense Lawyers

5th Circuit Opens the Barn Door on 4th Amendment Searches

By | Theft

Fort Worth Weapon Charges Defense LawyersBelow is a case update from the 5th Circuit (Federal)

U.S. v. Cooke, 5th Circuit, March 13, 2012

While appellant was in jail, federal agents approached him and asked for consent to search his house.  He refused.  A week later, while he was still in jail, federal agents went to his house to conduct a knock-and-talk interview.  Appellant’s house was a windowless structure that had two large sliding exterior barn doors.  Behind the barn doors was a large area with a dirt floor and a paved sidewalk path that led to a stoop and another set of doors.  Behind these interior doors were the living quarters where appellant, his wife and his mother lived.  When the agents approached the house, they noticed that one of the exterior barn doors was damaged, allowing them access to walk directly up to the interior doors.  Believing that knocking on the barn door would be futile, the agents walked through the open barn door and knocked on the interior set of doors.  Appellant’s mother answered the door and granted the agents consent to enter the house.  Once inside the house, the agents saw a shotgun shell and gun safe in plain view.  Based on these observations, the agents obtained a search warrant and found illegal firearms, ammunition and a bulletproof vest in appellant’s house.

Appellant argued that the agents unlawfully entered the curtilage of his house when they crossed the threshold of the barn door without a warrant or consent.  The court held that the area inside the barn doors, but outside the interior doors was not part of the curtilage, so the agents did not violate appellant’s Fourth Amendment rights by entering the area without consent or a warrant in order to knock on the interior doors.  First, the area had a dirt floor and a paved sidewalk that led to the interior doors.  Second, the contents of the area included non-operating washing machines and dryers, ladders, a grill and other items indicating that the space was used for storage.  Finally, the barn door was open wide enough such that the items stored there were exposed to the elements, the public could see into the area from the street, and anyone would reasonably think that they would have to enter and knock on the interior doors when visiting.

Appellant also argued that under Georgia v. Randolph the warrantless search was invalid because his mother’s consent to the agents’ entry into the house was trumped by his previous refusal to consent.  The court disagreed, stating that Randolph only applied to co-tenants who were physically present and immediately objected to the other co-tenant’s consent.  Here, appellant was not a present and objecting co tenant, but rather was miles away from his home and in jail when he objected to the search.

The Seventh and Eighth Circuits agree and allow searches under similar circumstances; however, the Ninth Circuit does not.

Aug 17
0
Warrantless GPS search attorneys Fort Worth

The Evils of Technology | GPS Search

By | Warrantless Search

Warrantless GPS search attorneys Fort WorthI love technology – from tablet computers to smartphones to flat-screen televisions.  If it’s shiny and new and guaranteed to make me the envy of my friends and family, I’ll buy it (to the dismay of my wife).  One of the recent (in the last 5 years) technological advancements that has made its way into just about every home in America is GPS.  Whether it be a Garmin running watch, a TomTom navigational device, or a GPS location broadcaster on your cell phone, most people use some sort of GPS device every day.  Aside from the fact that we’ve lost the capability to drive somewhere without turn-by-turn directions, GPS is great.

Jose Juan Hernandez, however, might not agree that GPS is so great.  In a recent 5th Circuit Court of Appeals Case (United States v. Hernandez), Hernandez challenged the GPS search that the DEA had surreptitiously (and without a warrant) performed on his brother’s truck to track its movements.  Hernandez was arrested while driving his brother’s truck to California on a drug run.  The police seized 20 pounds of meth from the truck.  At trial, Hernandez moved to suppress the drugs, arguing that the discovery was the result of an unlawful search (as a result of the GPS tracking).  The trial court denied the request.

The 5th Circuit held that Hernandez had standing to challenge the use of the GPS search device placed on his brother’s vehicle by FBI agents because he drove the vehicle with consent, but he lacked standing to challenge its placement because the vehicle was not registered to him.  The Court also held that the DEA agents’ use of the surreptitious GPS search device to track Hernandez was not a search within the meaning of the Fourth Amendment, explaining that it was more akin to the old beepers that police used to place on vehicles in the 80’s and 90’s.  Accordingly, the Court upheld the trial court’s denial of the motion to suppress. The Court did not decide whether a GPS search device that continuously and precisely monitors location would constitute a search.