Amicus Curiae Brief — Frank Thompson, Petitioner v. Carl Wilson, Commissioner, Maine Department of Marine Resources

No. 25-1105

In the Supreme Court of the United States

__________

FRANK THOMPSON,

v.

Petitioner,

CARL WILSON, IN HIS OFFICIAL CAPACITY AS

COMMISSIONER, MAINE DEPARTMENT OF

MARINE RESOURCES

__________

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the First Circuit

__________

BRIEF OF THE MANHATTAN INSTITUTE

AS AMICUS CURIAE

SUPPORTING PETITIONER

__________

April 21, 2026

Ilya Shapiro

Counsel of Record

Trevor Burrus

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.

institute

i

QUESTIONS PRESENTED

1. Whether Maine’s requirement that lobstermen

place a GPS tracking device on their private fishing

vessels and submit to 24/7 surveillance constitutes

an unreasonable trespassory search in violation of

the Fourth Amendment?

2. Whether courts must evaluate the reasonableness

of a warrantless administrative search based on

the Fourth Amendment’s protections against

government trespass, and not solely on a business

owner’s reasonable expectations of privacy?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................... i

TABLE OF AUTHORITIES ....................................... iv

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 4

I. MAINE’S GPS REGIME EXCEEDS

THE BURGER DOCTRINE, WHICH

ALLOWS INSPECTIONS, NOT

SURVEILLANCE.............................................. 4

A. The Administrative-Search Framework

Permits Warrantless Inspections Only

Within a Regulatory Scheme that

Supplies Meaningful Safeguards as a

Constitutionally Adequate Substitute

for a Warrant ............................................... 4

B. Burger’s Framework Allows Bounded

Inspections, Not Continuous

Surveillance ................................................. 6

C. The First Circuit’s Three Reasons for

Upholding Maine’s Regime Fail to

Supply the Meaningful Limits the

Doctrine Requires ........................................ 7

D. The Monitoring Rule’s Application to

Personal, Non-Commercial Use

Exposes the Doctrinal Failure .................. 11

II. HISTORICAL PRACTICE CONFIRMS

THE DISTINCTION BETWEEN

EPISODIC INSPECTION AND

CONTINUOUS TRACKING .......................... 13

iii

A. Since the Founding Era, Government

Authority Over Vessels Has Been

Exercised Through Boarding and

Physical Inspection, Not Continuous

Location Reporting .................................... 13

B. The Absence of Any Historical

Analogue Matters Because Burger

Presupposes Inspection-Style

Enforcement ............................................... 16

III.MODERN LOCATION-TRACKING

DOCTRINE CONFIRMS BY

ANALOGY WHY CONTINUOUS GPS

MONITORING IS

CONSTITUTIONALLY DISTINCTIVE ........ 17

A. Carpenter Confirms That Continuous

Location Tracking Cannot Be Treated

as Constitutionally Minor or Routine ....... 17

B. Jones Confirms That Compelled

Installation of a Tracking Device Is a

Search, Regardless of the

Government’s Purpose............................... 19

IV. THE FIRST CIRCUIT’S REASONING

CANNOT BE CONFINED TO THIS

CASE ............................................................... 20

CONCLUSION .......................................................... 22

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Arizona v. Gant, 556 U.S. 332 (2009).......................... 4

Camara v. Municipal Court,

387 U.S. 523 (1967) .................................................. 4

Carpenter v. United States,

585 U.S. 296 (2018) .......................... 9, 10, 17, 18, 19

City of Los Angeles v. Patel,

576 U.S. 409 (2015) ...................................... 5, 10, 20

Colonnade Catering Corp. v. United States,

397 U.S. 72 (1970) .................................................... 6

Donovan v. Dewey, 452 U.S. 594 (1981) ...................... 6

Grady v. North Carolina,

575 U.S. 306 (2015) .......................................... 19, 20

Kyllo v. United States,

533 U.S. 27 (2001) ...................................... 11, 15, 18

Marshall v. Barlow’s, Inc.,

436 U.S. 307 (1978) ...................................... 4, 11, 20

Maul v. United States,

274 U.S. 501 (1927) ...................................... 5, 13, 14

Mexican Gulf Fishing Co. v. U.S. Dep’t of Comm.,

60 F.4th 956 (5th Cir. 2023) ............................ 21, 22

New York v. Burger,

482 U.S. 691 (1987) .................... 1, 5, 6, 8, 10, 12, 16

Riley v. California, 573 U.S. 373 (2014) ............. 11, 18

Rivera-Corraliza v. Morales,

794 F.3d 208 (1st Cir. 2015) .................................... 7

v

See v. City of Seattle, 387 U.S. 541 (1967) .................. 4

State v. Thomas, 8 A.3d 638 (Me. 2010) ................... 14

Thompson v. Wilson,

159 F.4th 91 (1st Cir., 2025) ........ 7, 9, 10, 12, 19, 20

United States v. Biswell, 406 U.S. 311 (1972) ............ 6

United States v. Jones,

565 U.S. 400 (2012) ...................................... 9, 19, 20

United States v. Ponce-Aldona,

579 F.3d 1218 (11th Cir. 2009) .......................... 7, 12

United States v. Villamonte-Marquez, 462

U.S. 579 (1983) ....................................................... 15

1

INTEREST OF AMICUS CURIAE 1

The Manhattan Institute (MI) is a nonprofit public

policy research foundation whose mission is to develop

and disseminate new ideas that foster greater economic choice and individual responsibility. To that

end, MI has sponsored scholarship supporting the rule

of law and opposing government overreach.

This case interests MI because privacy is an essential element of a free society. While the government

has a justified role in conducting searches for public

safety, it must do so within the confines of the Fourth

Amendment. This case presents the Court with an important opportunity to define the parameters of the

Fourth Amendment when new technologies are arising that can potentially harm privacy.

SUMMARY OF ARGUMENT

Even assuming commercial lobstering is a closely

regulated industry, the Maine Department of Marine

Resources rule at issue fails under the Court’s precedent on its own terms. New York v. Burger, 482 U.S.

691 (1987). Burger authorizes warrantless inspections,

not warrantless surveillance. Its framework presupposes a bounded search conducted pursuant to law and

confined by meaningful limits of time, place, and scope

sufficient to function as a constitutionally adequate

substitute for a warrant. Maine rule is not such a regime. It compels continuous, automated GPS tracking

whenever a vessel is in the water—including during

personal use—and thereby generates a comprehensive

1 Rule 37 statement: All parties were timely notified of the

filing of this brief. No part of this brief was authored by any

party’s counsel, and no person or entity other than amicus, their

members, or their counsel funded its preparation or submission.

2

minute-by-minute record of movement with no discrete inspection event, no triggering suspicion, and no

meaningful endpoint.

The First Circuit acknowledged the regime’s “constant search” character but upheld it based on the device’s automated operation, the collection of “time and

position data only,” and the rule’s temporal trigger of

when the vessel is in the water. Those features do not

supply the meaningful limits Burger requires. Automation may reduce officer-by-officer discretion, but it

also enables surveillance of a scale, duration, and comprehensiveness no traditional inspection regime imposed. “Time and position data only” understates the

intrusion, because continuous location records reveal

a detailed chronicle of movement through aggregation

over time. And “whenever the vessel is in the water” is

not a bounded inspection window. It is an always-on

monitoring rule that extends beyond commercial fishing to personal use unconnected to regulated activity.

Historical practice confirms the distinction. From

the Founding Era forward, government authority over

regulated vessels has traditionally been exercised

through boarding and physical inspection—manifest

review, cargo examination, and other discrete onboard

encounters—not through compelled continuous electronic reporting. The historical materials identify no

analogue to a rule requiring a licensed operator to

broadcast his vessel’s location to the government every

minute as a condition of licensure. While new technologies can change how inspection regimes work, they

don’t change the privacy concerns at the heart of the

Fourth Amendment.

The absence of historical analogue matters because

Burger’s doctrine itself is built for inspection-style

3

enforcement. This Court’s cases have upheld warrantless inspections of premises, records, goods, and equipment at identifiable times and within meaningful statutory limits. They have not approved continuous automated surveillance in place of a bounded inspection regime. As has frequently been the case in this Court’s

Fourth Amendment jurisprudence, new technologies

often don’t easily fit into old case law.

Carpenter and Jones do not control the administrative-search question, but they confirm by analogy why

persistent technology-enabled location tracking cannot be dismissed as constitutionally minor merely because the underlying data consist only of coordinates

and timestamps. This Court has already recognized

that continuous location monitoring is distinctive because of its continuity, aggregation, and comprehensiveness.

Finally, the First Circuit’s reasoning lacks a limiting principle. If a state may impose continuous GPS

tracking because regulated work occurs at irregular

hours, because the data collected are “only” location

data, and because the system is automated, then the

same logic can be extended across closely regulated industries. That would convert Burger’s narrow inspection exception into a general surveillance authorization for licensed work, contrary to Patel’s warning that

the closely regulated industry exception must remain

narrow lest it swallow the rule.

The Court need not extend Carpenter or Jones to

reverse the lower court here. Maine’s rule already exceeds the limits of Burger itself.

The petition should be granted.

4

ARGUMENT

I. MAINE’S GPS REGIME EXCEEDS THE

BURGER DOCTRINE, WHICH ALLOWS INSPECTIONS, NOT SURVEILLANCE

A. The Administrative-Search Framework

Permits Warrantless Inspections Only

Within a Regulatory Scheme that Supplies

Meaningful Safeguards as a Constitutionally Adequate Substitute for a Warrant

The Fourth Amendment applies to administrative

inspections of private dwellings and commercial premises alike. Camara v. Municipal Court, 387 U.S. 523,

532–39 (1967); See v. City of Seattle, 387 U.S. 541, 543

(1967). Warrantless searches are “per se unreasonable

. . . subject only to a few specifically established and

well-delineated exceptions.” Arizona v. Gant, 556 U.S.

332, 338 (2009) (quoting Katz v. United States, 389

U.S. 347, 357 (1967)). A businessman, “like the occupant of a residence, has a constitutional right to go

about his business free from unreasonable official entries upon his private commercial property.” Camara,

387 U.S. at 543.

One “well-delineated” exception permits warrantless inspections of closely regulated industries. The

justification is that proprietors in such industries have

“voluntarily chosen to subject [themselves] to a full arsenal of governmental regulation,” and thus possess a

diminished expectation of privacy in the regulated enterprise. Marshall v. Barlow’s, Inc., 436 U.S. 307, 313

(1978). But Barlow’s insisted that this exception remain confined to “responses to relatively unique circumstances,” id., and rejected the idea that efficiency

or surprise alone can justify dispensing with warrants,

5

because warrants may issue on administrative standards and can be obtained ex parte without advance notice. Id. at 316, 320.

Even within a closely regulated industry, a warrantless inspection is constitutionally permissible only

if three criteria are satisfied. There must be: (1) a substantial government interest informing the regulatory

scheme; (2) a showing that warrantless inspections are

necessary to further the scheme; and (3) an inspection

program that, in terms of the certainty and regularity

of its application, provides a constitutionally adequate

substitute for a warrant—meaning it advises the

owner the search is pursuant to law, has a properly

defined scope, and limits inspecting officers’ discretion. Burger, 482 U.S. at 702–03; see also City of Los

Angeles v. Patel, 576 U.S. 409, 426 (2015).

Patel reinforces two points relevant here: (1) the

closely regulated industry exception remains narrow,

and (2) the government cannot satisfy Burger’s second

and third prongs merely by asserting that warrantless

inspections are necessary because notice or review

would risk record alteration. Id. at 424–25. The Court

explained that officers could instead use an ex parte

warrant or secure the registry pending review, separately holding the ordinance invalid because it failed

sufficiently to constrain officer discretion. Id. at 437.

The parties agreed below that Maine has a substantial interest in regulating and conserving its lobster fishery, satisfying Burger’s first prong. The second

prong—whether a warrantless inspection is necessary

to further the scheme—doesn’t address whether this

type of tracking is necessary or the only viable option.

Petitioners challenge this system of warrantless surveillance, but not necessarily other types of inspection.

6

The remaining question is whether the Maine’s system

provides a constitutionally adequate substitute for a

warrant under Burger’s third prong. It does not.

B. Burger’s Framework Allows Bounded Inspections, Not Continuous Surveillance

This case requires the Court to identify a limiting

principle implicit in Burger’s framework and reflected

in every inspection regime the Court has upheld under

it. Burger is built around inspection-style searches—

bounded, legally defined encounters conducted within

meaningful limits of time, place, and scope.

This distinction is not merely rhetorical. It is

grounded in the structure of the inspection regimes the

Court has upheld under Burger. Each involved a discrete encounter with identifiable boundaries. In

Burger itself, the regime authorized on-premises examination of records and vehicle parts during business

hours. 482 U.S. at 711–12. In Donovan v. Dewey, 452

U.S. 594 (1981), the Court upheld periodic physical inspections of mines. In United States v. Biswell, 406

U.S. 311 (1972), the regime authorized inspection of a

firearms dealer’s locked storeroom during business

hours. And in Colonnade Catering Corp. v. United

States, 397 U.S. 72 (1970), it was an inspection of a

liquor licensee’s premises. In each case, the inspection

was a discrete event: officials examined specified

premises, records, or items at identifiable times and

under statutory constraints that could meaningfully

be compared to the limiting functions of a warrant.

Maine’s GPS regime shares none of these features.

It is triggered automatically when the vessel enters

the water, operates continuously, and compiles a minute-by-minute record of vessel movement—personal

7

and commercial alike—with no human decision to

begin or end the search. It is not an inspection in the

sense that the doctrine has traditionally recognized; it

is surveillance. The distinction between inspection and

surveillance is what prevents Burger from becoming a

general-purpose surveillance authorization.

C. The First Circuit’s Three Reasons for Upholding Maine’s Regime Fail to Supply the

Meaningful Limits the Doctrine Requires

The First Circuit acknowledged the regime’s “constant search” character but held that three features

provided a constitutional safe harbor, as it were: automated operation, collection of “time and position data

only,” and the trigger of “when the vessel is in the water.” Thompson v. Wilson, 159 F.4th 91, 103–06 (1st

Cir., 2025). But none of these provides the meaningful

limits in time, place, and scope that Burger requires.

1. “When the vessel is in the water” is not a

meaningful time limit.

The First Circuit held that “when the vessel is in

the water” is a sufficient temporal boundary because

lobstermen may haul traps at any hour, so narrower

limits would frustrate enforcement. Id. at 104–05. For

that proposition, it relied on Rivera-Corraliza v. Morales, 794 F.3d 208, 221 (1st Cir. 2015), which in turn

cited the commercial-trucking case United States v.

Ponce-Aldona, 579 F.3d 1218 (11th Cir. 2009).

But the trucking analogy underscores the defect in

Maine’s rule rather than curing it. A trucking regime

may need to permit inspections at unpredictable times

because commercial trucks operate around the clock.

Yet that is still a regime of episodic inspections: an officer stops a truck and examines it at a particular time

8

and place. The absence of fixed business hours does not

eliminate the inspection window; it merely makes the

permissible window flexible.

Maine’s rule is fundamentally different. It does not

authorize inspections at any hour, but compels continuous transmission during all times the vessel is in the

water. That surveillance covers not only fishing activity but all vessel operations, including personal use. So

instead of defining when an inspection may occur, the

rule effectively abolishes any inspection window at all

and replaces it with always-on monitoring triggered by

the ordinary act of putting the boat in the water.

Burger relied on express statutory limits: inspections “during [the] regular and usual business hours”

of covered records and vehicles or parts on the premises. Burger, 482 U.S. at 711. The “time” component of

the warrant-substitute analysis contemplated discrete

inspection windows, not perpetual data collection. Rivera-Corraliza confirms both why timing matters and

why the First Circuit’s reasoning cannot simply be extended from episodic inspections to continuous monitoring. Rivera-Corraliza recognized that context may

affect the feasibility of time limits, but it still treated

timing and scope as essential parts of the Burger inquiry. 794 F.3d at 221–23. The proposition that inspections would be unworkable without flexible timing is a

different proposition from claiming that continuous

automated monitoring is justified because regulated

activity occurs at unpredictable times.

2. “Time and position data only” is not meaningfully narrow.

The First Circuit treated “time and position data

only” as sufficient to confine the scope of the search.

9

The court reasoned that the devices “relay time and

position data only,” that the rule “only collects a limited and specific type of data,” and that the devices “do

not record and report everything done aboard the vessel.” Thompson, 159 F.4th at 106.

The relevant question is not whether the device

captures every onboard act, but whether constant location transmission itself creates a record of movement so comprehensive that it exceeds anything resembling a traditional inspection. Describing the data

as “limited” because it contains only coordinates and

timestamps characterizes the data at the wrong level

of abstraction. A continuous, minute-by-minute location record reveals patterns of movement, duration of

stops, frequency of visits to particular locations, and

the full scope of the vessel operator’s maritime activity, both commercial and personal.

This Court’s decisions in United States v. Jones,

565 U.S. 400 (2012), and Carpenter v. United States,

585 U.S. 296 (2018), demonstrate by analogy why “location-only” understates the intrusion. Jones recognized that GPS tracking is a search, and the concurring opinions emphasized the distinctive privacy concerns raised by prolonged and comprehensive monitoring of a person’s movements. 565 U.S. at 415 (Sotomayor, J., concurring); id. at 431 (Alito, J., concurring in the judgment). The comprehensiveness of a

search does not arise from a single data point but from

the aggregation of location data over time. Carpenter,

585 U.S. at 309–13. Maine’s regime requires minuteby-minute GPS transmissions whenever the vessel is

in the water, producing a denser and more deliberately

continuous record of movement than the historical location data at issue in Carpenter.

10

The First Circuit thus erred in treating “time and

position data only” as self-evidently narrow. Continuous location records are comprehensive due to their

continuity and aggregation, not despite the apparent

simplicity of the underlying data. See Section III infra.

3. Uniform, non-discretionary GPS monitoring does not by itself supply the limiting

principles Burger requires.

The First Circuit treated the devices’ “mindless”

and non-discretionary operation as a constitutional

virtue: “Minimally intrusive, mindless tracking devices remove discretionary judgment calls from the

equation entirely.” Thompson, 159 F.4th at 105.

Automation is relevant to the discretion inquiry,

which point should be conceded as far as it goes. Eliminating officer-by-officer judgment calls at the point of

execution may address one component of the Burger

analysis. But automation itself cannot substitute for

meaningful limits on the search’s time, scope, and operation, including whether the regime extends to continuous monitoring and personal use. See Burger, 482

U.S. at 702–03, 711–12; Patel, 576 U.S. at 424–25.

Automation simultaneously eliminates discretion

and expands scale. A regime in which no officer decides

when to search because the search never stops has not

solved the discretion problem; it has dissolved the concept of a bounded search altogether. As Carpenter recognized, automatic and passive collection can intensify

rather than reduce the intrusion when it enables comprehensive tracking that would have been impractical

through traditional means. Carpenter, 585 U.S. at

311–12. Riley and Kyllo reinforce the broader point

that technologically enhanced information gathering

11

cannot be assessed by mechanically extending pre-digital analogies or by allowing advances in technology to

erode practical Fourth Amendment protection. See Riley v. California, 573 U.S. 373, 393–97, 401 (2014);

Kyllo v. United States, 533 U.S. 27, 34–35 (2001).

The First Circuit’s rationale has no built-in stopping point. In any industry where automated monitoring is technologically feasible, the devices would always be “mindless,” would always reduce officer discretion, and could always be described as collecting

“only” some limited data. On that logic, the exception

would expand from episodic inspections of closely regulated activity to continuous monitoring of ordinary licensed workers and small-business operators across a

wide range of industries. See Section IV, infra.

D. The Monitoring Rule’s Application to Personal, Non-Commercial Use Exposes the

Doctrinal Failure

The whole justification for reduced privacy expectations in a closely regulated industry is that “when an

entrepreneur embarks upon such a business, he has

voluntarily chosen to subject himself to a full arsenal

of governmental regulation.” Barlow’s, 436 U.S. at

313. That rationale is tied to the commercial activity—

the regulated business. It has never been understood

to authorize surveillance of a person’s entire life, or of

activity unconnected to the regulated enterprise.

Whatever reduced privacy expectation may attach

to commercial lobstering, Maine’s rule does not stop at

that activity. It requires one-minute GPS transmission

whenever the vessel is in the water, including during

personal use. It also requires the tracking device to remain powered and transmitting “at all times the vessel

12

is in the water,” including when a vessel is docked or

being operated for personal use. Thompson, 159 F.4th

at 95. A lobsterman who takes his family fishing on a

Saturday, or motors to an island for a personal errand,

is tracked at the same one-minute interval as when

hauling traps commercially.

Burger’s warrant-substitute analysis makes sense

only if the inspection remains tied to the regulated activity. The junkyard operator’s reduced privacy expectation in Burger applied to the covered records and vehicles on his business premises—not to his personal

vehicle in his driveway. 482 U.S. at 711–12. The trucking inspection in Ponce-Aldona applied to the commercial vehicle and its required documents—not to the

driver’s personal car. 579 F.3d at 1222–23. When a regime extends beyond the regulated activity to encompass personal life, the foundational justification—voluntary assumption of regulatory burdens by entering

a regulated business—no longer applies.

The First Circuit did not grapple with this problem.

Although it acknowledged elsewhere that the rule applies during personal use, it treated “when the vessel

is in the water” as a sufficient temporal limit without

addressing the fact that this “limit” sweeps in personal, non-commercial activity for which the closely

regulated industry rationale provides no justification.

Thompson, 159 F.4th at 106. The decision below identified no case approving continuous monitoring of concededly personal activity unrelated to the regulated

enterprise merely because the person works in a

closely regulated industry.

13

II. HISTORICAL PRACTICE CONFIRMS THE

DISTINCTION BETWEEN EPISODIC INSPECTION AND CONTINUOUS TRACKING

A. Since the Founding Era, Government Authority Over Vessels Has Been Exercised

Through Boarding and Physical Inspection, Not Continuous Location Reporting

The government’s authority to inspect vessels without a warrant has deep historical roots. But historically that authority took the form of physical boarding

and inspection—episodic encounters in which an officer went aboard, examined specified items, and departed. See Maul v. United States, 274 U.S. 501, 504–

06 (1927). While the technologies may have changed,

the Fourth Amendment has not.

The earliest federal customs statutes reflected the

traditional inspection model. The Act of July 31, 1789,

authorized customs officers to seize vessels liable to

forfeiture. Id. at 504–05. The Act of August 4, 1790,

expanded that regime. Id. at 504. And the Act of March

2, 1799, again enlarged the regulations and preserved

the same basic seizure authority. Id. at 505.

As Maul explained, those statutes did not merely

authorize seizure. “Along with” the seizure provisions,

the early acts “contained other provisions distinct from

[the seizure authority] which authorized customs officers to board and search vessels bound to the United

States and to inspect their manifests, examine their

cargoes, and prevent any unlading while they were

coming in.” Id. That is the relevant historical pattern:

14

boarding, inspection, manifest review, cargo examination, and, where warranted, seizure. Id. at 504–08.

The pattern across these Founding-era enactments

is consistent. Government authority over vessels

meant the power to board and inspect—to conduct a

physical examination at a discrete moment in time. Id.

Those inspections could be unannounced, could occur

at unpredictable times, and could entail substantial

authority over the vessel and its contents. Id. But they

were still encounters, not monitoring systems. The

government officer arrived, inspected, and left.

Fisheries-related enforcement followed the same

basic model. Congress relied on documentation requirements, sworn statements, boarding, seizure, and

cargo inspection—not continuous location transmission by the vessel itself. Cf. id. at 512–30 (Brandeis, J.,

concurring) (surveying longstanding maritime enforcement practice, including boarding and seizure of

American vessels in enforcing navigation, customs,

and related maritime laws). Modern Maine practice remains similar. State marine patrol officers enforce marine-resource laws by boarding vessels, inspecting containers and catch, and examining compliance on

board. See State v. Thomas, 8 A.3d 638, 640–43 (Me.

2010). In Thomas, for example, officers boarded a vessel approximately 35 miles offshore, inspected totes on

deck, and examined the lobsters found there; Maine’s

high court upheld that inspection under the state’s

marine-resource inspection authority. Id. at 640–43.

That history matters for what it shows—and for

what it does not. The historical tradition supports warrantless vessel inspections, including suspicionless

and unannounced boardings. Maul, 274 U.S. at 504–

08; Thomas, 8 A.3d at 642–43. It does not reveal any

15

tradition of requiring a vessel operator to carry a government-mandated device that continuously transmits the vessel’s location whenever it is afloat.

This Court’s decision in United States v. Villamonte-Marquez, 462 U.S. 579 (1983), upheld suspicionless vessel boarding in customs waters for documentation inspection, relying in part on the 1790

boarding statute’s “impressive historical pedigree” and

on maritime-specific enforcement realities, including

the reduced practicality of land-style alternatives for

vessels with ready access to the open sea. Id. at 585,

592–93. Villamonte-Marquez validated suspicionless

vessel-boarding for documentation inspection. It does

not suggest that the government may require vessel

operators themselves to transmit a continuous stream

of location data whenever the vessel is afloat. It becomes a significant authority for the state only if

overread: the case supports episodic boarding and document checks, not permanent minute-by-minute location broadcasting. Id. at 593.

While technologies like GPS trackers of course

didn’t exist for most of the history of vessel inspections,

the historical record is still important. A historical

analogy would be an inspector who physically stayed

on the ship for the entire time the vessel was in the

water, including when no regulated activity was occurring. The Framers were concerned with searches that

encroach on private life and go beyond the purpose of

the search. Kyllo, 533 U.S. at 31–34. New technologies

don’t change that fact. Id. at 35–38. In fact, new technologies that facilitate seamless and comprehensive

16

surveillance are a reason to reiterate the principles of

privacy embodied in the Fourth Amendment.

B. The Absence of Any Historical Analogue

Matters Because Burger Presupposes Inspection-Style Enforcement

Burger’s framework was built for inspection regimes. The three-prong test asks whether the statute

gives notice, limits the scope of the search, and cabins

the discretion of “inspecting officers.” 482 U.S. at 703,

711–12. These are the features of a bounded encounter. They do not translate coherently to continuous automated monitoring, where there is no inspecting officer, no discrete moment of inspection, and no scope

limit that is meaningful in the traditional sense.

The historical record confirms what the doctrine’s

structure already implies: Burger was designed for inspections. Extending it to surveillance requires the

Court to do something the doctrine was never built for.

This fact is sufficient reason for the Court to grant

the petition here. Perhaps more than any part of the

Constitution, the Fourth Amendment’s protections are

constantly affected by technological change. New cases

that deal with new technologies can often be only

loosely analogized to cases dealing with older technologies. Maritime vessel inspection is almost as old as

maritime vessels. How old doctrines apply to new technologies is one reason this Court is consistently asked

to update doctrine. In so doing, however, the Court

should stay focused on the privacy-protecting core of

the Fourth Amendment, not on the way new technologies can make government searches easier and more

“efficient.” “As technology has enhanced the Government’s capacity to encroach upon areas normally

17

guarded from inquisitive eyes, this Court has sought

to ‘assure[] preservation of that degree of privacy

against government that existed when the Fourth

Amendment was adopted.’” Carpenter, 585 U.S. at 305

(quoting Kyllo, 533 U.S. at 34).

III. MODERN LOCATION-TRACKING DOCTRINE CONFIRMS BY ANALOGY WHY CONTINUOUS GPS MONITORING IS CONSTITUTIONALLY DISTINCTIVE

Carpenter and Jones do not control the administrative-search analysis. They arose in the criminal-investigative context, and their holdings do not directly resolve the Burger question presented here. Their relevance is more narrow but important: they preempt any

argument that persistent, technology-enabled location

tracking is constitutionally minor or routine merely

because the underlying data points are simple. This

Court has already recognized otherwise.

A. Carpenter Confirms That Continuous Location Tracking Cannot Be Treated as

Constitutionally Minor or Routine

In Carpenter, this Court held that the government’s

acquisition of even seven days of historical cell-site location information (“CSLI”) constituted a Fourth

Amendment search requiring a warrant. 585 U.S. at

302. The Court’s reasoning rested on the recognition

that location history provides a “detailed, encyclopedic, and effortlessly compiled” chronicle of movement,

revealing the “privacies of life” and enabling “near perfect surveillance.” Id. at 309, 311, 312. The comprehensiveness of location data arose from aggregation over

time, not from the complexity of any individual data

18

point. In total, law enforcement collected 12,898 small

data points on the defendant in Carpenter. Id. at 302.

Riley v. California reinforces the same broader

principle. There, the Court recognized that digital

technologies can fundamentally transform both the

quantity and quality of information the government

obtains, so that pre-digital physical-search analogies

cannot be mechanically extended to modern digital collection. 573 U.S. at 393–97 (noting that, “[t]he possibility that a search might extend well beyond papers

and effects . . . is yet another reason that the privacy

interests here dwarf those in [United States v. Robinson]”). And in Kyllo, the Court asked what limits exist

on technology’s power “to shrink the realm of guaranteed privacy,” warning against leaving citizens “at the

mercy of advancing technology.” 533 U.S. at 34–35.

Kyllo also shows how accessing even somewhat vague

private data through a technology-enhanced search—

blurry thermal images inside a home—still requires a

warrant despite the argument that the images obtained are arguably not sufficiently “intimate.” Id. at

37–39. Similarly, the comprehensive tracking of a vessel even when used for private activities may not seem

terribly intrusive or “intimate,” but it is still compiling

a large data set of movements over time.

The First Circuit treated “time and position data

only” as limited in scope. Carpenter demonstrates why

that characterization is wrong: continuous location

records are comprehensive because of their continuity

and aggregation, regardless of the apparent simplicity

of the underlying data. Maine’s regime requires oneminute GPS transmissions whenever the vessel is in

the water, producing a more deliberately continuous

record of movement than Carpenter’s historical CSLI,

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where the search averaged 101 data points per day.

Carpenter, 585 U.S. at 302. Whatever the outer boundaries of Carpenter’s holding, the principle that continuous location tracking is constitutionally significant

applies with full force to the regime challenged here.

B. Jones Confirms That Compelled Installation of a Tracking Device Is a Search, Regardless of the Government’s Purpose

In Jones, the Court held the government’s physical

attachment of a GPS device to a vehicle, combined

with its use of that device to monitor the vehicle’s

movements, to constitute a search within the meaning

of the Fourth Amendment. 565 U.S. at 404–05. The

majority’s holding was trespass-based: the government physically intruded on an “effect” for the purpose

of obtaining information. Id. at 404–05, 409–11.

Grady v. North Carolina extended this principle beyond the criminal-investigative context. The Court

held that government-imposed GPS monitoring is a

search even in a civil regulatory regime, and that “the

government’s purpose in collecting information does

not control whether the method of collection constitutes a search.” Grady v. North Carolina, 575 U.S. 306,

309 (2015). In so doing, the Court cited the administrative-search case of Camara v. Municipal Court of

San Francisco, 387 U.S. 523 (1967).

Maine’s regime involves compelled installation of

government-approved tracking equipment on private

property that transmits location data to the government continuously. The parties and courts below have

already agreed this constitutes a search. Thompson,

159 F.4th at 97–98. Jones and Grady confirm that compelled installation and tracking are searches. Jones,

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565 U.S. at 402; Grady v. North Carolina, 575 U.S. at

309–10. The remaining question is reasonableness,

and here the state seeks to answer that question

through Burger. So the program must satisfy Burger

on its own terms. As explained above, it does not.

IV.THE FIRST CIRCUIT’S REASONING CANNOT BE CONFINED TO THIS CASE

Patel warns that the closely regulated industry exception must remain narrow. 576 U.S. at 424–25. Barlow’s confines warrantless inspection authority to “relatively unique circumstances.” 436 U.S. at 313. The

question is whether the First Circuit’s reasoning honors those limits. It does not, because each of its three

holdings generalizes beyond lobstering.

On time: The court held that no time limit was required because regulated activity occurs at unpredictable hours. That rationale applies to every closely regulated industry in which work may not follow a 9-to-5

schedule—trucking, mining, commercial fishing of all

types, auto salvage, agriculture, and more.

On scope: The court concluded that “time and position data only” was inherently limited. Thompson,

159 F.4th at 106. But every data type can be described

as “limited” at a low enough level of abstraction. Financial transactions are only dollar amounts and

timestamps; communications metadata is only call-related information rather than content. The First Circuit’s reasoning supplies no limiting principle for

treating GPS data as different.

On discretion: The court held that automated,

non-discretionary monitoring satisfied Burger’s discretion constraint. Id. at 105–06. But every automated

system is non-discretionary by definition. If

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automation alone satisfies the discretion prong, then

continuous automated monitoring of any kind in any

closely regulated industry would pass Burger. And the

third prong’s “time, place, and scope” limits would be

satisfied whenever the government can say the device

“mindlessly” collects “only” one type of information.

None of this reasoning is limited to large industries

or well-capitalized enterprises. The lobstermen here

are individual fishermen and small operators. The

same logic would apply to a sole-proprietor firearms

dealer required to wear a location-broadcasting device

around the clock, or to a one-truck owner-operator required to transmit continuous GPS data as a condition

of maintaining a commercial driver’s license. The

closely regulated industry doctrine already covers an

enormous range of American workers and small businesses. If Burger authorizes continuous electronic surveillance as a condition of licensure, the exception will

no longer remain narrow, and ordinary licensed workers and small businesses across regulated industries

will be exposed to a form of monitoring never before

sanctioned under the Fourth Amendment.

The Fifth Circuit recently confirmed that materially similar GPS mandates raise serious privacy and

limiting-principle concerns. Mexican Gulf Fishing Co.

v. U.S. Dep’t of Comm., 60 F.4th 956, 971–73 (5th Cir.

2023). The court did not resolve the Fourth Amendment merits there; it held instead that the charterboat fishing industry was not closely regulated and set

the rule aside on statutory and APA grounds. Id. at

969–70, 976. But in doing so, it emphasized the substantial privacy and financial burdens imposed by continuous vessel-location reporting, including the “massive privacy cost” of requiring charter-boat owners to

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transmit their exact location to the government “every

hour of every day forever,” regardless of whether the

vessel was being used for commercial or personal purposes. Id. at 965–66. The court also stated at the outset

that the regulation “very likely violated the Fourth

Amendment,” id. at 961, and later explained that a

broader reading of the statute would raise “grave constitutional concerns.” Id. at 966–67.

That decision does not control here. It does, however, show that courts confronting similar technology

did not regard continuous GPS tracking as a trivial

regulatory add-on.

CONCLUSION

Even in a closely regulated industry, the Fourth

Amendment does not permit the government to replace bounded inspection authority with continuous

tracking. A program of constant GPS transmission

during all vessel use is not a bounded inspection regime and cannot serve as a constitutionally adequate

substitute for a warrant.

For the foregoing reasons, and those stated in the

petition, the Court should grant certiorari.

Respectfully submitted,

April 21, 2026

Ilya Shapiro

Counsel of Record

Trevor Burrus

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.institute