A tag, a trace and a tempest
“Clearly, without an expectation of privacy, the defendant cannot assert the protection of the Fourth Amendment.”
— Judge Michael J. Holbrook,
Franklin County Ct. of Common Pleas
“A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.”
— U.S. Supreme Court
Cardwell v. Lewis (1974)
The movie version of “The Fugitive” is a great example of the American crime investigation story. The wife of a prominent doctor is murdered in her own home. The only person found in the home is her husband and he’s covered in blood. His claims that an intruder committed the murder seem far-fetched and he is convicted of the unthinkable crime. While being transported to another prison facility there is a bus accident and he escapes.
Based on a true case out of Cleveland, the movie stars Harrison Ford as Dr. Richard Kimble and Tommy Lee Jones as the U.S. Marshal who hunts him down. In the course of the investigation, Jones’ character comes to believe that Ford’s character really is innocent and eventually begins to investigate a one-armed man that fits the doctor’s description of the killer. And to follow him they turn to good old-fashioned police work.
Law enforcement officers are sent to follow the one-armed man who, being the savvy criminal that he is, notices them and sneaks out a side door. If the Chicago police or the U.S. Marshals wanted to gather data on him today, technology would have given them very different tools. In a modern setting, Tommy Lee Jones may have sent marshals to place a GPS tracking device on a suspect’s car in order to track its movements. Whether the use of such a device would be Constitutional would depend on the state in which the tracking occurred, the location and type of device and where the car was when data was collected.
The Ohio Supreme Court has yet to rule on such a case, but in recent months trial courts in Franklin and Fairfield Counties have ruled that it is permissible for police to track a car with a GPS device without having to first obtain a search warrant. Around the country, courts are split. Federal courts in Maryland, Wisconsin, Kansas and Montana and a handful of state courts have found that the GPS devices are allowed. State courts in New York, Oregon, Washington and Massachusetts had reached the opposite conclusion and held that a search warrant is required.
The difference is in the details. As a general rule, the U.S. Supreme Court has held that you don’t have an expectation that your movements in a motor vehicle, on a public roadway, will be private in any way. You understand when you get in the car that people can see you, can see where you are traveling and can identify the make, model and color of your car along with the license plate number. There is no problem, therefore, with a police officer following you to see where you’re going. The extension from the officer tailing you to the GPS device doing it for the officer is an easy one to make.
On the flip side, there’s a “big brother” aspect to electronic surveillance that makes people very nervous. While the Supreme Court has recognized an inherent “right to privacy,” some courts have also noted that there is a societal expectation that the police will not track you electronically without court oversight and to allow them to do so might permit ceaseless tracking in circumstances where there is no indication of criminal activity.
The different court decisions, however, have usually turned on far more mundane and non-technical Constitutional benchmarks. First, courts inquire as to what type of device is used. External devices are independently powered, but other devices attach inside the engine compartment and draw power directly from the vehicle battery allowing them to be used for longer periods of time. Some courts have held that entering the vehicle compartment to install a battery direct-connect device requires a warrant where an external device does not.
Secondly, courts have examined where the installation occurs. If the device is attached to the vehicle in a public place then there is no Fourth Amendment implication. If law enforcement has to go onto private property to install the device then Constitutional protections are triggered. Finally, courts have examined where the vehicle is when GPS information is transmitted. If the vehicle is on a public roadway courts are more likely to rule that the GPS device is acting in place of an officer. If the vehicle is in a private location such as a garage or private roadway where an officer could not legally be, then a warrant is more likely to be required.
Technology will continue to develop and courts will continue to attempt to apply existing Constitutional provisions to new inventions. Eventually the Ohio Supreme Court or the United States Supreme Court will rule on these kinds of electronic surveillance. Until then, lower courts will fill the void, as happened last month in Franklin County.
David Hejmanowski is a magistrate and court administrator of the Delaware County Juvenile Court and a former assistant prosecuting attorney.