Commentary Forum 02/25

Commentary Forum 02/25

Ohio prosecutors defend warrantless GPS tracking

By Alex Culpepper

Ohio police actively seek technology and gadgetry to prevent crime and catch suspects who may have committed crimes. Just last year, Dayton leaders held a meeting to decide whether to hire a local company, Persistent Surveillance Systems, to send up an aircraft with a surveillance camera to snap footage of the region in hopes of gathering evidence of criminal activity. (See “Will it be surveillance, or will they just be watching us?” in the Feb. 5, 2013 issue of the Dayton City Paper.) Community pressure against surveillance mounted, however, and the plan was grounded in April 2013.

While the aerial surveillance never came to be, Ohio police have been using GPS surveillance to track down suspected criminals. What the police do is secretly attach a GPS device to a suspect’s car, so they can be tracked and then caught committing illegal acts, as they did with a suspect in Franklin County, catching him for a series of burglaries. The problem for police, in this case, was an appeals court called the GPS tracking an illegal search, because police did not get a warrant and thus the evidence was suppressed. Right now, Ohio prosecutors are seeking help from the Ohio courts to change rules about tracking because current law for gathering warrants is no different for GPS tracking than it is for searching property. The prosecutors want a distinction between the two, and the distinction they want is for no warrant to be required for the GPS tracking of suspects.

Supporters for the exception to warrant requirements say the GPS tracking should be permissible under probable cause or even reasonable suspicion. They deny a violation of the Fourth Amendment and claim tracking is not an invasion of privacy when suspects are being tracked on public roads and streets; rather, it is a minimal intrusion revealing little private information. They say it really is no different from old-school visual surveillance performed by following suspects; it just achieves the same goal using fewer resources. Supporters also want to file tracking under the “automobile exception” – an established precedent allowing for warrantless vehicle searches based on probable cause.

Those opposing exceptions to warrant requirements say the tracking is a search and a violation of the Fourth Amendment, and they say a ruling by a federal court in November 2013, which states warrants are necessary for tracking, proves it. They say court involvement via warrants is a must when dealing with technology allowing police the capability to track nearly every move of any citizen. They further say the efficiency created by GPS tracking is also not a reasonable requirement to bypass the issuance of a warrant. Further, opponents insist probable cause is not reasonable, mostly for two reasons: 1) If police had probable cause, they could just as easily get a warrant and commence the tracking, and 2) Tracking can turn up future evidence that may not be part of the original probable cause.

Ohio is not the only state where this has been an issue. The 2013 federal court ruling establishing unwarranted tracking as unconstitutional was from incidents occurring on the East Coast. Earlier in 2012, the U.S. Supreme Court said tracking is the same as searching, though the court made no specific ruling about whether warrants were necessary in all cases. Still, two Ohio prosecutors want the Ohio Court to overturn a lower court ruling requiring a warrant for GPS tracking, but they face opposition and the previous rulings from higher courts.

Reach DCP forum moderator Alex Culpepper at AlexCulpepper@DaytonCityPaper.com

Debate Forum Question of the Week:

Two Ohio prosecutors seek to overturn a court ruling establishing the requirement for a warrant before police can use GPS to track suspected criminals. Should police first receive a warrant before using GPS to track suspected criminals?

Global Paralysis System

By Ben Tomkins

In late January 2012, the Supreme Court ruled unanimously that the unqualified use of warrantless GPS tracking devices for the purposes of tracking criminal suspects’ movements was unconstitutional. While wholly aligned on the answer, the court was split 5-4 as to the breadth and scope of the constitutional violations and the importance of establishing progressive court precedent regarding new technologies.

The majority opinion was reserved, merely stating the unlimited application of the GPS device without a warrant was a violation of the protection against unreasonable searches. However, the minority view expressed it was time for the court to begin specifically addressing the evolution of 21st-century technology in terms of broader constitutional implications, rather than relying on traditional mid-20th-century precedent.

A great example of this is the Supreme Court ruling regarding the use of infrared devices by police to “look” inside a house they are surveying. In this instance, the court determined not only was this an unreasonable search, but it also violated an individual’s right to privacy. While they might seem to be very nearly one-and-the-same, this distinction has profound legal and intellectual implications.

The prosecution’s argument was infrared devices don’t actually look inside, but merely detect the varying heat signatures present in the house, as that information leaks through the walls and into public space. The court rejected this argument on the grounds that, implicit within the right to privacy, is the idea there are places and circumstances wherein an individual would have a natural expectation of privacy.

In other words, even though we can create technology that exploits the legal technicalities posed by the quantum mechanical paradigm in which we exist, there is a cutoff point at which our pedestrian experience of “reality” takes precedence.

Therefore, if I’m sitting in my house with the blinds drawn, I should be able to expect I can pick my nose without fear of a stranger monitoring the fluctuations of subatomic particles phasing in and out of existence around my house to put a picture of it on Douchebook. If we had to consider our moment-to-moment privacy on that level, the mental gymnastics would result in total encephalo-paralysis.

Inevitably, cases like the GPS surveillance issue posed in the Commentary Forum Center will continue to boil down to minutia of this kind, and require old farts sitting on high courts to tentatively dip their toes into unknown legal waters. As seemingly straightforward as these issues appear, they can have profound implications for the most contemporary arguments about privacy in the digital age.

The police argue a GPS tracking device simply allows them to digitally observe the same aspects of suspect’s movements that would otherwise be achieved legally by visual surveillance. OK, fine. You don’t need a warrant for that. But what happens when that car is parked in the suspect’s garage? Now the suspect can reasonably expect a high degree of privacy that would ordinarily require a warrant to overcome.

The temptation in this situation – and it is tantalizing – is to equate gathering unbelievably uninteresting data with gathering no data at all. Yes, the car is sitting in the garage doing nothing, but the bald-faced fact of the situation is the GPS unit is still transmitting information and the police are looking at it. Now we are no longer talking about convenience, but debating a classic example of the data sifting argument the government has used to gather private information from cell phones, text messages, emails and Internet history without a warrant. In order to even begin making that case, it requires the assumption the gatherer can predict the future and knows this information will be trivial.

You can’t. Here is an example with the car. Let’s say in 20 years, GPS can detect even the slightest movement. I’m suspected of plotting to kill my wife. Everyone has considered killing their spouse, so pay attention. This affects all of us. The police put a GPS on my car, and track me to my garage where I park and close the door.

All of a sudden, the GPS detects the car is violently shaking. The immediate question is, “does the possibility of him killing his wife provide probable cause for the police to supersede his right to expect the privacy to bang her in the car or change a stubborn hubcap?” There’s no known way for an argument to be made the police should have the right to make that determination in the absence of any other information. It would destroy the very idea of privacy.

I hope it isn’t lost on you there is a sickening irony to the fact we willingly, and with great ease, sign away this same privacy to Google and Apple so they can more easily manipulate us for economic gain, but we are outraged when our government does it under the pretense of keeping us safe. Obviously there is a difference between consensual sex and rape, but letting someone into your bed doesn’t mean they can start using your credit card, too. I wonder, and do so with a chilling shudder, if there will ever come a day when the casual exercise of signing away our rights will erode the principles upon which we base them and the expectation that these rights are respected.

 Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tomkins at BenTomkins@DaytonCityPaper.com

 

Lazy law enforcement wants GPS tracking

By Rob Scott

The one thing certain in the U.S. is society and technology move extremely faster than the laws of our nation. Of course, the Founding Fathers wanted to make it difficult to pass laws and only those laws deemed worthy of high scrutiny would pass muster through the tangled branches of government.

This issue is no more prevalent than the technological revolutions that have occurred literally within the last five years. Almost anyone with a cell phone now has a smart phone that enables us to send a text message, surf the Internet and check his or her email. Cars can now tell us where we need to go and literally tell us it’s time for oil change.

With all the gadgetry now accessible to the mainstream come certain privacy issues. Despite the many who post their lives on Facebook and Twitter, there are still some who do not want anyone or particular people knowing too much about ourselves. Many of us have an expectation of privacy about how we live our lives.

Imagine someone knowing what you do in your bedroom behind the walls of your home? Or what places you frequent? Even knowing every move you make?

Well, that time is now. Currently, police are attempting to know all of your movements by attaching a GPS tracking device – without a warrant – to your car, if you are a suspect. Obviously, I would not be as appalled if there was a true warrant requirement. However, there are some in law enforcement who feel there should not be a warrant requirement to learn where you drive every day.

Granted, if law enforcement saw where I went every day, they would be quite disappointed. However, this is a huge issue for many, since one of the greatest freedoms in the United States truly is our respect of privacy.

The U.S. Constitution contains no expressed right to privacy. The Bill of Rights, however, reflects the concern of Founding Father James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (First Amendment), privacy of the home against demands to be used to house soldiers (Third Amendment), privacy of the person and possessions as against unreasonable searches (Fourth Amendment), and the Fifth Amendment’s privilege against self-incrimination, which provides protection for the privacy of personal information.

At issue, and specifically the Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Using electronic devices to keep surveillance over someone can implicate the investigated individual’s Fourth Amendment rights. One form of electronic surveillance developed by law enforcement results in attaching a “bug” to a person’s recording their conversation. Sound familiar?

Courts have held this practice constitutes a search under the Fourth Amendment because the Fourth Amendment protects an individual’s privacy rights for situations in which the person has a legitimate expectation of privacy.

Also, courts have held, when having a telephone conversation, one would not expect an unknown third-party government agent to listen in on the conversation. A person has a legitimate expectation of privacy if that person honestly and genuinely believes the location under search to be private and if the reasonable person under the same or similar circumstances would believe the location to be private as well.

Therefore, law enforcement has more leeway when intercepting communications in a public place than when the interception occurs in a secluded environment. The courts have given law enforcement the freedom to record conversation during jail visits, provided the monitoring reasonably relates to prison security.

Two general categories of electronic communication surveillance exist. Wire communications refer to the transfer of the human voice from one point to another via use of a wire, cable or similar device. When law enforcement “taps” a wire, they use some mechanical or electrical device that gives them outside access to the vocal transfer, thus disclosing the contents of the conversation. This type of communication includes email.

Due to their similarity to searches and seizures, the Fourth Amendment Warrant Clause applies to electronic surveillance as well. Obtaining a warrant for electronic surveillance requires showing probable cause, describing in particular the conversation to be intercepted, providing a specific time period for the interception of the communications device, and notifying the property owner unless law enforcement can show exigent circumstances.

As with ordinary searches and seizures, exigent circumstances may serve as grounds for law enforcement to dispense with first obtaining a warrant. If law enforcement encounters a situation threatening a person’s life, a conspiracy threatening the national security or a conspiracy suggesting organized crime, then law enforcement may proceed without first acquiring a warrant.

Taking the law into account, if there is a suspect that needs followed, then law enforcement simply needs to obtain a warrant rather than being lazy, allowing technology to build their case. GPS tracking could open upon individuals to be charged with crimes not even originally suspected of. Under the law, GPS tracking should be treated as no different than taping a phone conversation or reading an individual’s email.

 

Rob Scott is a general practice attorney at Oldham & Deitering, LLC. Scott is a Kettering City Councilman and founder of the Dayton Tea Party. He can be contacted at rob@oldhamdeitering.com or gemcitylaw.com.

 

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One Response to “Commentary Forum 02/25” Subscribe

  1. Dee Lightner March 2, 2014 at 1:27 am #

    I do believe that there should be warrants before using a tracking device on a suspect, although I can think of some instances where I would also believe that perhaps it would be good for the police to be able to bypass the warrant requirement.

    However, I do have other concerns about electronic surveillance. First, I wish all those who are against such surveillance would give up their cell phones (which all are said to have a GPS), and the next time they go to buy a new car and are offered three free years of ONSTAR (or similar electronic tracking), they just refuse and demand that the device be disconnected before they purchase the car. How is that tracking WITHOUT A WARRANT any different? And since most people do not even think about it, I believe it to be more invasive than a no-warrant phone tap!

    Second, and to me the most important, is that I am concerned about the use of the data collected using electronic tracking, whether with a warrant or without. And my main concern is that the intel be used for the purpose of making us safer, and not be simply used for the purpose of just collecting and keeping the data.

    And, I am also concerned that any data gathered be SHARED by the agencies entrusted with our safety, without all the jurisdictional crap.

    For example, in August prior to the 9-11 attack Fort Meade MD (home of NSA) went on access control. that means that instead of just being more or less open to the public, it was closed up tighter than a drum. AND, the exit from the B/W Parkway for NSA employees only was also closed. At other government facilities in the area HUGE boulder like things were blocking the access roads. Now, I am not an intelligence expert, but to me that means SOMEONE knew that something was going to happen.

    Could intelligence have stopped the attack? I don’t know. But I imagine that if you asked the loved ones of those killed that day, they would certainly say that the data which prompted a military base and NSA headquarters to go on alert MAY have better been used to at least watch the airports for terrorists, NO MATTER HOW IT WAS GATHERED!

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