Tuesday, April 12, 2011

Virginia Judges Question Whether Extensive GPS Surveillance is Permissible

A panel of a Virginia Court of appeals had an opportunity to rule on the warrantless use of GPS devices.  The Court punted, deciding the case on other grounds.  But one of the judges wrote an interesting concurring opinion.

In this case, the defendant was convicted of abduction with intent to defile.   The Defendant challenged the use of evidence obtained through the use of a GPS device placed on his work van.
The defendant, a registered sex offender on probation as a result of prior convictions, including rape, was a suspect in a series of sexual assaults in Northern Virginia.  The sexual assaults appeared to be similar to the crimes committed by the defendant.

His employer provided him with a van which he was permitted to drive to his home.   On February 1, 2008, the officers attached a GPS to the defendant’s work van.  On February 5, 2008, the police determined that the defendant’s van had been in the vicinity of a sexual assault.  They then began traditional surveillance.  The officers observed the defendant start to assault a woman and arrested him.  The defendant was convicted of his crime for this assault.

The court did not reach the GPS issue.  Instead, the court concluded that the officers could legitimately have conducted the traditional surveillance and thus, legally, obtained the visual evidence used to obtain the conviction. 

This decisions appears to be correct.  I won’t bog down the blog with a discussion of “fruits of the tree” doctrine.  Instead, lets move to the interesting discussion that occurred within the concurring opinions.

Two of the judges would have addressed the use of the GPS devices “squarely.”   In their opinion, they note that “The government could potentially abuse this technology in an Orwellian manner by truly invading the private lives of individuals without any constitutional justification.”  However, “the particular facts of this specific case simply do not even raise such concerns.” 

The judges would have allowed the warrantless use of GPS devices in this case because the van was not owned by the defendant.  More significantly, the van “was parked on a public street when the police attached the GPS device to the van.”  The judges reasoned that because the van was visible to the public, the “GPS device . . . did not expose anything that was not already visible and freely accessible to the public.” 

Here is what I think is significant.  The judges did not rely completely on the principal that simply because a van is visible to the public, the use of GPS devices without a warrant is always justified.  Instead, the judges distinguished this case from cases where the police track “the defendant's unrestricted driving of his personal vehicle for a number of weeks.” 

Another Judge addressed these arguments in another concurring opinion.  This judge also noted the distinction between the discrete use of GPS to solve a crime, and the tracking of people.  He wrote:

we are not talking about the “public” events of a single evening, but rather the comprehensive observation or electronic tracking that takes place over a period of days, weeks, or months. While it is reasonable to expect that anyone might witness any one of such a series of public activities or events, it does not follow that one cannot reasonably expect that a particular person or group would not be privy to all of them. Similarly, one might reasonably expect something as intensely personal as their genetic profile to remain private even if such a profile could in principle be extrapolated from residual DNA left upon a glass or fork "abandoned" in a public restaurant. Thus,  . . . private (and thus protected) facts may be extrapolated from the aggregation of individual public events or from a technologically assisted analysis of “public” objects or information.

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