New Federal Rule of Criminal Procedure Addresses Warrants for Tracking Devices
Hodges, Keith, The FBI Law Enforcement Bulletin
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. …