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Warrant Needed to Track Suspects with GPS

Warrant needed to track suspects with GPS, justices rule

TONY RIZZO, The Kansas City Star
PUBLICATION: Kansas City Star, The (MO)

SECTION: News

DATE: January 23, 2012
Often under cover of darkness and without a warrant, local police officers have been able in recent years to attach GPS devices to the cars of suspected criminals to track their movements.

But a ruling from the U.S. Supreme Court Monday will change that practice.

In a unanimous decision that for the first time addressed the use of GPS devices in criminal investigations, the court ruled that police must obtain a search warrant before placing the tracking device on a suspect’s vehicle.

The opinion, written by Justice Antonin Scalia, stated that the warrantless use of a GPS device in the case of a Washington man violated the Fourth Amendment’s prohibition against unreasonable searches and seizures of “persons, houses, papers, and effects.”

“It is beyond dispute that a vehicle is an ‘effect’ as that term is used in the Amendment,” according to the opinion. “We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search.”

It is unclear just how often local law enforcement agencies use the technology, but at least one Jackson County judge recently ruled in a similar case involving a man facing robbery charges.

Jackson County Circuit Judge Robert Schieber ruled in October that the warrantless use of a GPS tracking device violated Sean Hunley’s Fourth Amendment rights.

Officers with the Jackson County Drug Task Force had placed the device on Hunley’s vehicle while it was parked in his southeast Kansas City driveway and used the tracking information to determine the vehicle was near the scene of an armed robbery in Lee’s Summit.

Because they placed the device without a warrant or other court order, Schieber ruled that prosecutors could not use evidence obtained from it at Hunley’s trial.

“Indeed, this is too scary and too Orwellian a proposition for this court to place its stamp of approval upon,” Schieber wrote. “Absent any authority to the contrary, this court will err on the side of constitutional protection.”

Jackson County prosecutors were appealing that decision. On Monday they said they will review the case to determine if they can go forward with other evidence not related to the GPS tracking.

Other cases also could be affected, a spokesman for the prosecutor’s office said. Attorneys were reviewing them as well.

Other ramifications may be yet to come.

Indicating that they will be monitoring the growing use of high-tech surveillance, five justices said they could see constitutional and privacy problems with police using many kinds of electronic surveillance for long-term tracking of citizens’ movements without warrants.

Justice Samuel Alito, a former federal prosecutor, said the court should address how expectations of privacy affect whether warrants are required for remote surveillance equipment, such as GPS tracking of mobile telephones that police do not have to install.

Responding just to the GPS tracking issue decided Monday, local and federal law enforcement officials on both sides of the state line said they will abide by the new rules.

“This will change how we do things,” said Officer Gary Mason, a spokesman for the Overland Park Police Department.

Although he didn’t know how often the department has used GPS tracking, Mason said it has been used more frequently in recent years.

“We will conduct our work along the lines of the constitution and the Fourth Amendment,” Mason said.

Capt. Steve Young, a spokesman for the Kansas City Police Department, said the department does not discuss investigative techniques, but he added, “Obviously, the Supreme Court has ruled and we will be following the rules.”

Barry Grissom, the U.S. attorney for Kansas, said that while the use of GPS technology and other forms of electronic surveillance has become more common, he did not believe the ruling would hamper his office’s efforts to enforce the law.

“We see this as a clarification of a new area of the law and we appreciate the court’s guidance,” Grissom said. “I feel real comfortable saying this will change our practices ever so slightly.”

Because he cannot comment on pending cases, Grissom said he cannot talk about how many current cases might be affected.

Several local defense attorneys contacted Monday said that they have seen such cases only occasionally.

One attorney, Robin Fowler, said he believes authorities have been aware of the pending Supreme Court case and have been “somewhat circumspect” in utilizing GPS tracking until the court ruled.

And sometimes officers may use GPS tracking, but if it doesn’t lead to any productive evidence, then it doesn’t become an issue in court, Fowler said.

Another attorney, John Picerno, recently represented a bank robbery suspect whose vehicle was tracked, but prosecutors did not use the tracking information at trial so the issue wasn’t addressed in court.

Picerno called the unanimous ruling from the conservative court on Monday significant.

“It looks like it was not even a close call,” he said.

Picerno said without the search warrant requirement, authorities could track anybody’s car for any reason.

“Any limits on governmental power are good for all citizens,” he said.