Several important court battles over the use of GPS tracking by law enforcement without a warrant have been going on during the last year. The courts have returned different opinions recently.
1) In November 2010, the US Court of Appeals for the DC Circuit, in a five to four split, upheld a lower court’s ruling that law enforcement agencies need to obtain a warrant to use the “global positioning system” (GPS) to track a suspect.
The federal appellate court denied a Department of Justice request for reconsideration of a three-judge panel’s ruling that warrantless GPS tracking violated the defendant’s Fourth Amendment rights as well as the defendant’s “reasonable expectation of privacy.”
The case involved a D.C. area nightclub owner who was busted for drug possession after police attached a GPS tracking device to his vehicle. Local authorities had monitored Antoine Jones for a month without a warrant before they nabbed him. In a divided decision the court ruled to re-establish Jones’ 4th amendment rights as precedent over what is essentially probable cause, most likely because there didn’t seem to be probable cause for much of the time spent monitoring the suspect.
Judge Douglas H. Ginsburg in his decision wrote that “A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain disconnected and anonymous.” It stands to reason that if a suspect is considered an obvious and immediate threat to the public safety that officers would take the opportunity to secure a warrant, lest that suspect be released on such a technicality. We’d like to say that this decision sets in stone the legal ramifications for use of GPS units without a warrant, but we can see this trending back and forth for quite some time.
2) Also in November 2010, the Ohio Court of Appeals ruled the other way, in favor of police surveillance without a warrant of any motorist with a GPS tracking system. (Here is a pdf copy of the court decision.)
The case arose after paid informants told the Butler County Sheriff’s Office that Sudinia Johnson was involved in selling cocaine. Acting on this information, Detective Mike Hackney attached a pager-sized GPS tracking device underneath Johnson’s white Chevy van. Hackney was then able to regularly track where the suspect was located.
The data gathered from the GPS tracking device was used to follow the van from Chicago back to Ohio, with police prepared to make a traffic stop with drug-sniffing canines as soon as Johnson entered Butler County, as long as “they were able to find probable cause to make a stop,” according to Hackney’s testimony.
Johnson allegedly made an improper right-hand turn — one police later admitted was a perfectly safe maneuver — and was pulled over and searched. No drugs were found after two thorough searches, but Johnson admitted to police that “you guys got me.” He then proceeded to admit he was going to sell cocaine that he picked up in Chicago that was in another vehicle.
In court, Johnson’s lawyer argued that both the traffic stop and the GPS tracking violated the law. A trial judge did not agree and Johnson was convicted and sentenced to 15 years in jail. The three-judge appellate panel found no fault with this outcome.
“We find that placing the GPS on the van and monitoring its movement did not constitute a search or seizure under either the federal or Ohio Constitution,” Judge Robert A. Hendrickson wrote for the court. “Johnson did not produce any evidence that demonstrated his intention to guard the undercarriage of his van from inspection or manipulation by others…. Supreme Court precedent has established not only that a vehicle’s exterior lacks a reasonable expectation of privacy, but also that one’s travel on public roads does not implicate Fourth Amendment protection against searches and seizures.”
What do you think?