Wednesday, December 1, 2010

Ohio Appeals Court Permits Warrantless GPS Tracking

The Ohio Twelfth District Court of Appeals has just issued an opinion upholding the warrantless use of a GPS tracking device by the police. The case is State v. Johnson.

In Johnson, the defendant was suspected of trafficking in cocaine. The police attached a GPS device to the defendant's van when it was parked on the street outside his apartment, and then tracked it through a website.

The police observed that the van was in Chicago, and made arrangements for local law enforcement to observe the vehicle. The defendant was observed placing a package in his van, and a car with Ohio plates was also observed at the scene. The van then was followed back to Ohio. Once in Ohio, law enforcement stopped the vehicles for minor traffic violations. A canine alerted on the vehicle, but no drugs were recovered from the van. However, drugs were found in a hidden compartment on the other car traveling from Illinois. The defendant told the police, "you guys got me," and later confessed. Officers also discovered that one of the keys on the defendant's key ring opened the hidden compartment in the other car that contained the drugs.

The defendant challenged the use of the GPS device without a warrant. The court rejected this argument. The court relied on Supreme Court cases holding that "there is no reasonable expectation of privacy in the exterior of a car," and that "one's travel on public roads does not implicate Fourth Amendment protection against searches and seizures." The court also noted that the defendant "did not produce any evidence that demonstrated his intention to guard the undercarriage of his van from inspection or manipulation by others."

The court rejected an argument that the advanced technology of a GPS device was different. The court said:

the defendant "parked his van on a public street, did not take any precaution to exert a privacy interest over it, and then openly traveled on the road where any onlooker could see his movement and arrival. . . . More importantly, the information gathered from the GPS device shows no more information than what detectives could have obtained by visual surveillance. [The] Detective testified that he would sporadically log onto a secure website and view the position of [the defendant's] van, but could tell nothing more from the GPS report than the approximate location of the van or how long it had been at a location. This same information could have been ascertained had a member of law enforcement tracked Johnson or employed surveillance techniques that require no technology. There is no question that following a suspect on a public road is not a search that implicates the Fourth Amendment and, scientific enhancement of this sort raises no constitutional issues which visual surveillance would not also raise. (Citations omitted.)

Lots has been, and will be, written on this topic. You can find a good start here on this blog.

It will be interesting to see if the Ohio Supreme Court gets this case. The Ohio Supreme Court has previously applied the Fourth Amendment to emerging technology, such as when it found that the search of a cell phone violated the Fourth Amendment.

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