8-7-2010 Washington DC:
A Washington appeals court today struck down a man's conviction and life sentence in a drug case on the grounds the police unlawfully tracked his movement with a GPS device that had been installed without a warrant on his vehicle.
The unanimous three-judge ruling in the U.S. Court of Appeals for the D.C. Circuit said that law enforcement officers must obtain a warrant to use GPS tracking equipment. The appeals court said the government violated the Fourth Amendment and reversed the conviction of the defendant, Antoine Jones, former co-owner of a night club in Washington.
"We're gratified that a unanimous D.C. Circuit agreed that protecting civil liberties requires that the technology of the 21st Century be evaluated on its own terms, and not as if it were still the technology of past decades,” said Arthur Spitzer, legal director of the American Civil Liberties Union National Capital Area, which participated as a friend-of-the-court. “That principle needs to be applied in many other contexts as well.”
A spokesman for the U.S. Attorney’s Office for the District of Columbia, William Miller, said the government is reviewing the opinion. Miller declined to comment further. Prosecutors could decide to ask the full court to review the case. The government can also petition the U.S. Supreme Court to take the case. Two federal appellate circuits—the 9th and the 7th—have found that the use of GPS tracking over a long period of time is not a “search” under the Fourth Amendment.
Federal prosecutors argued the police did not need a warrant to track the travels of the drug trafficking suspect, Antoine Jones, because he was moving freely about in a vehicle on public roads in the District of Columbia and in Maryland. The authorities initially had a warrant, but it expired. The GPS device was re-attached to Jones’s vehicle in violation of a court order in the U.S. District Court for the District of Columbia.
The appeals court, in a 41-page opinion written today by Judge Douglas Ginsburg, rejected the government’s position. Click here for the opinion and here for earlier coverage of the case.
Ginsburg, joined by Judges David Tatel and Thomas Griffith, said the “whole of a person’s movement” is not “exposed” to the public because the whole reveals more about a person than individual movements. Ginsburg drew a comparison to a person’s rap sheets, suggesting that one crime in a person’s papers does not compare to a full understanding of the person’s criminal history.
“It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work,” Ginsburg wrote. “It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine.”
A single trip to a gynecologist‘s office “tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story,” the judge said. “A person who knows all of another‘s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.
Jones , co-owner of the “Levels” nightclub, became targets of a Metropolitan Police Department drug investigation. The authorities arrested Jones and Maynard in October 2005 on charges that included conspiracy to distribute cocaine. At trial, a jury acquitted Jones on a number of counts but could not reach a verdict on the conspiracy charge. A mistrial was declared.
Prosecutors brought Maynard and Jones to trial in late 2007, and a jury found the men guilty in January 2008. The government’s case was largely built on the GPS evidence—allegedly showing Jones driving to and from a drug stash house in Maryland. Prosecutors did not have any evidence showing Jones was involved in any drug transaction. The government relied heavily on statements from co-conspirators who claimed Jones was a ringleader in a trafficking organization.
Jones's trial counsel, A. Eduardo Balarezo, a solo practitioner in Washington, said, "Mr. Jones always said that all he wanted was for the law to be applied fairly, today he got his wish."
Stephen Leckar of Washington’s Shainis & Peltzman, who argued for Jones in the D.C. Circuit last November, said that requiring investigators to adhere to the “modest requirement” of obtaining a warrant will not burden law enforcement.
“Judge Ginsburg’s eloquently-written opinion recognized the increasing importance in a high-tech age of requiring law enforcement agents to seek the approval of a neutral judge before surreptitiously installing a device that records relentlessly your every movement in time and space,” Leckar said. ..Source.. Mike Scarcella
August 7, 2010
Court Says GPS Surveillance Requires Warrant
May 13, 2009
Police Used GPS Illegally, Court Rules
Interesting, New York says UNCONSTITUTIONAL but in WIsconsin its CONSTITUTIONAL, is the U.S. Supreme court in the futre for this issue?
5-13-2009 New York:
In a 4-to-3 ruling, the New York State Court of Appeals ruled on Tuesday that the State Police violated a criminal suspect’s rights under the State Constitution when it placed a GPS tracking device inside the bumper of his van without obtaining a warrant.
The police had used the device to monitor the movements of the suspect, Scott C. Weaver, for more than two months. But the court ordered the evidence gathered from the device suppressed and ordered a new trial for Mr. Weaver.
In three written opinions, the judges debated the constitutional issues raised by the growing use of global positioning system technology as a tool of surveillance. The case could set an important precedent for state and local police agencies.
In the early morning on Dec. 21, 2005, a State Police investigator crawled under Mr. Weaver’s van, parked on the street, and placed a GPS tracking device, known as a Q-ball, inside the bumper. It remained in place for 65 days, constantly monitoring the location of the van.
It was not clear why Mr. Weaver, of Watervliet, N.Y., was placed under electronic surveillance, but he was eventually tried for two burglaries — one in July 2005 at the Latham Meat Market; the other in December 2005 at a Kmart in the same hamlet in Albany County.
A jury convicted Mr. Weaver of two counts relating to the burglary of the Kmart but acquitted him of the counts pertaining to the meat market burglary. (GPS evidence had only showed that Mr. Weaver’s van crossed the parking lot of the Kmart hours before the burglary; he was never spotted behind the wheel, and was convicted in part on the testimony of a witness who said that Mr. Weaver, now 41, had used the van to scout out the Kmart before going back to commit the crime.)
Writing for the majority, Chief Judge Jonathan Lippman cited a 1983 United States Supreme Court case in which government agents had placed a beeper in a five-gallon drum of chloroform to track the container’s movements. The beeper was used to help the agents keep visual track of the vehicle carrying the container. In that case, the court found that the driver of the vehicle had no reasonable expectation of privacy since the van’s movements were visible for all to see.
The judge also raised the specter of a GPS being used to penetrate every part of a person’s private life.
The judge added that the ruling had no bearing on federal cases, because the United States Supreme Court has not ruled upon whether the use of a GPS by the state in criminal investigations constitutes a search under the Fourth Amendment, and most federal appellate courts have not addressed the issue.
“In light of the unsettled state of federal law on the issue, we premise our ruling on our State Constitution alone,” Judge Lippman wrote, citing similar decisions in Washington State and Oregon. He was joined by Judges Carmen Beauchamp Ciparick, Eugene F. Pigott Jr. and Theodore T. Jones.
In a dissenting opinion, Judge Robert S. Smith acknowledged the newness and greater efficiency of GPS devices but defended the legitimacy of the search. ..News Source.. by SEWELL CHAN
WI- Wisconsin court upholds GPS tracking by police
5-13-2009 Wisconsin:
MADISON, Wis. - Wisconsin police can attach GPS to cars to secretly track anybody's movements without obtaining search warrants, an appeals court ruled Thursday.
However, the District 4 Court of Appeals said it was "more than a little troubled" by that conclusion and asked Wisconsin lawmakers to regulate GPS use to protect against abuse by police and private individuals.
As the law currently stands, the court said police can mount GPS on cars to track people without violating their constitutional rights -- even if the drivers aren't suspects.
Officers do not need to get warrants beforehand because GPS tracking does not involve a search or a seizure, Judge Paul Lundsten wrote for the unanimous three-judge panel based in Madison.
That means "police are seemingly free to secretly track anyone's public movements with a GPS device," he wrote.
One privacy advocate said the decision opened the door for greater government surveillance of citizens. Meanwhile, law enforcement officials called the decision a victory for public safety because tracking devices are an increasingly important tool in investigating criminal behavior.
The ruling came in a 2003 case involving Michael Sveum, a Madison man who was under investigation for stalking. Police got a warrant to put a GPS on his car and secretly attached it while the vehicle was parked in Sveum's driveway. The device recorded his car's movements for five weeks before police retrieved it and downloaded the information.
The information suggested Sveum was stalking the woman, who had gone to police earlier with suspicions. Police got a second warrant to search his car and home, found more evidence and arrested him. He was convicted of stalking and sentenced to prison.
Sveum, 41, argued the tracking violated his Fourth Amendment protection against unreasonable search and seizure. He argued the device followed him into areas out of public view, such as his garage.
The court disagreed. The tracking did not violate constitutional protections because the device only gave police information that could have been obtained through visual surveillance, Lundsten wrote.
Even though the device followed Sveum's car to private places, an officer tracking Sveum could have seen when his car entered or exited a garage, Lundsten reasoned. Attaching the device was not a violation, he wrote, because Sveum's driveway is a public place.
"We discern no privacy interest protected by the Fourth Amendment that is invaded when police attach a device to the outside of a vehicle, as long as the information obtained is the same as could be gained by the use of other techniques that do not require a warrant," he wrote.
Although police obtained a warrant in this case, it wasn't needed, he added.
Larry Dupuis, legal director of the ACLU of Wisconsin, said using GPS to track someone's car goes beyond observing them in public and should require a warrant.
"The idea that you can go and attach anything you want to somebody else's property without any court supervision, that's wrong," he said. "Without a warrant, they can do this on anybody they want."
Attorney General J.B. Van Hollen's office, which argued in favor of the warrantless GPS tracking, praised the ruling but would not elaborate on its use in Wisconsin.
David Banaszynski, president of the Wisconsin Chiefs of Police Association, said his department in the Milwaukee suburb of Shorewood does not use GPS. But other departments might use it to track drug dealers, burglars and stalkers, he said.
A state law already requires the Department of Corrections to track the state's most dangerous sex offenders using GPS. The author of that law, Rep. Scott Suder, R-Abbotsford, said the decision shows "GPS tracking is an effective means of protecting public safety." ..News Source.. by RYAN J. FOLEY
