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5/22/2009 9:34:00 AM
Muddled messages: Just what can police do when it comes to GPS?
Warrantless GPS tracking to head to U.S. Supreme Court

Richard Moore
Investigative Reporter

News Analysis

Two state court decisions have sent opposite messages about what the nation's police can and can't do when it comes to using GPS surveillance, reflecting a muddled trend that will likely wind up in the United States Supreme Court.

In Wisconsin earlier this month, a state appeals court said police have every right to attach a GPS device to anybody's publicly parked vehicle and track it, without ever obtaining a warrant. Wisconsin attorney general J.B. Van Hollen hailed the decision.

In New York state, just a week later, the state's highest court reached the opposite conclusion, saying the tracking of a man by a global positioning system without first obtaining a warrant to do so, and absent exigent circumstances, violated the suspect's right to privacy.

That vote to reverse an earlier conviction based at least partially on GPS evidence was close, 4-3.

While the federal Supreme Court has said police do not need a warrant to use technology to help them observe the same actions that can be seen without using the technology, GPS tracking does a whole lot more, the New York judges found.

A planted GPS device, the majority stated, allows the police to electronically follow a person everywhere, revealing the most personal destinations a person might be visiting: a mental health counselor, a strip club, a rehab center, a gambling counselor.

To obtain such information without a warrant, the court said, is not "compatible with any reasonable notion of personal privacy."

In Wisconsin, in a far more narrow interpretation of the federal constitution, judges determined that using GPS for surveillance did not amount to unreasonable search and seizure under the Fourth Amendment.

Still, the panel urged the state Legislature to take a look at regulation of GPS monitoring, both in the public and private spheres.

The New York decision

In New York, a state investigator placed a GPS tracking device under the bumper of Scott Weaver's van without a search warrant. Case records do not indicate why the police were watching Weaver, the New York State Court of Appeals stated, but watch him they did - for 65 consecutive days.

Ultimately, law enforcement charged Weaver with burglarizing a K-Mart; a jury convicted him based on evidence obtained partially from the GPS system. In reversing the conviction, the high court ordered a new trial.

It all started on Dec. 21, 2005, when a state investigator attached a Q-ball, a type of GPS device, under the bumper of Weaver's van, which was parked on the street. After Weaver's arrest, one witness testified that Weaver used the van to essentially 'case the joint' and then returned without the van to commit the crime.

But the GPS evidence showed only that Weaver's van crossed the parking lot of the K-Mart a few hours before the burglary, and no one ever saw him driving near the K-Mart, according to the decision.

During the trial, Weaver had argued that his Fourth Amendment rights protecting him from unreasonable search and seizure had been violated, but a divided appellate decision confirmed the conviction and rejected the constitutional argument, saying the police action involved no search of his property.

"The Amendment itself shows that the search is to be of material - the person, the house, his papers or his effects," that court stated. "The description of the warrant necessary to make the proceeding lawful, is that it must specify the place to be searched and the person or things to be seized."

In other words, the court clung to an interpretation that the Fourth Amendment protected only property rights.

But New York's highest court said the constitution offered a "much more encompassing view," quoting former U.S. Supreme Court Justice Louis Brandeis:

"[The founders] conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men," Brandeis wrote. "To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."

In other words, the Fourth Amendment protected against not only the state's unreasonable intrusion into private property but its intrusion upon those things a person might reasonably expect to keep private - such as the lawful movements of one's vehicle.

"It is, of course, true that the expectation of privacy has been deemed diminished in a car upon a public thoroughfare," the New York judges noted. "But, it is one thing to suppose that the diminished expectation affords a police officer certain well-circumscribed options for which a warrant is not required and quite another to suppose that when we drive or ride in a vehicle our expectations of privacy are so utterly diminished that we effectively consent to the unsupervised disclosure to law enforcement authorities of all that GPS technology can and will reveal."

In making that argument, chief judge Jonathan Lippman, writing for the majority, cited a 1983 U.S. Supreme Court case in which the government had placed a beeper in a five-gallon drum of chloroform to track the container's movements, as well as those of the vehicle carrying it. The court found that the driver of the vehicle had no reasonable expectation of privacy since its movements were visible, but nonetheless cautioned that GPS and similar technology could be used to violate a person's private life.

The New York high court focused on that latter potential violation.

"Technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated," the decision stated. "Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse."

And while the state Legislature might - and should - regulate technological surveillance, that does not dismiss the court from any constitutional oversight, Lippman wrote.

"Before us is a defendant whose movements have, for no apparent reason, been tracked and recorded relentlessly for 65 days," the decision stated. "It is quite clear that this would not and, indeed, realistically could not have been done without GPS and that this dragnet use of the technology at the sole discretion of law enforcement authorities to pry into the details of people's daily lives is not consistent with the values at the core of our State Constitution's prohibition against unreasonable searches."

The New York ruling will have no impact on pending federal cases because the U.S. Supreme Court has not addressed the matter. Instead, the appeals panel joined other states such as Washington and Oregon in deciding the case based on privacy rights embedded in the state constitution.

Even if the nation's High Court rules that warrantless GPS tracking is not a Fourth Amendment violation, such tracking would remain illegal in New York because of that state's added constitutional privacy protection.

That safeguard would not conflict with the federal constitution, in other words. Just because the federal document would allow it does not mean states couldn't themselves bar the practice.

Not in Wisconsin

In the Wisconsin case, the appeals panel found no conflict between the warrantless use of GPS and the core values of the state and federal constitutions.

As Weaver had in New York, J. Michael Sveum argued that the police obtained tracking information in violation of his Fourth Amendment right to be free from unreasonable searches and seizure, according to the decision.

However, the court agreed with the state, which argued that no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and "then use that device to track the vehicle while it is in public view."

According to the decision, Sveum was convicted of stalking Jamie Johnson in 1996 and was later imprisoned for related crimes against Johnson. In 1999, from prison, he began stalking Johnson again with help from his sister.

He continued stalking Johnson when he was released from prison in 2002, the decision states. In March 2003, Johnson reported to the police that she believed Sveum was stalking her again.

As part of their investigation, police sought and received a court order authorizing them to covertly attach a GPS device to Sveum's car in order to track his movements. However, the court said the existence of a warrant was irrelevant.

That's because, the court found in striking contrast to the New York court, people surrender their rights to privacy when traveling on public roadways, citing U.S. v. Knotts.

"(In Knotts,) the Court reasoned that the device simply made it easier to discover what was already 'voluntarily conveyed to anyone who wanted to look,'" the judges stated, quoting Knotts:

"A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [one of the defendant's accomplices] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property."

In reaching this decision, the Wisconsin court rejected the New York court's arguments not only that people traveling on public highways do not surrender all privacy rights but also that attaching a GPS on a car parked in a public place constitutes an unreasonable search because it allows the state's invasion of information people can reasonably expect to stay private, such as where they might be going.

While the New York court drew a distinction between the public's visible view of a vehicle moving down a highway and the police tracking that vehicle to a specific location, the Wisconsin court found no such distinction.

"It follows that no Fourth Amendment violation occurred here simply because the police used a GPS device to obtain information about Sveum's car that was visible to the general public," the court found. "We also agree with the State that the police action of attaching the GPS device to Sveum's car, either by itself or in combination with subsequent tracking, does not constitute a search or seizure."

The bottom line is, the Wisconsin court found, police can use a GPS device, with or without a warrant, to track anybody at any time to anywhere.

Not that the judges didn't realize the implications of their conclusion.

"So far as we can tell, existing law does not limit the government's use of tracking devices to investigations of legitimate criminal suspects," the court stated. "If there is no Fourth Amendment search or seizure, police are seemingly free to secretly track anyone's public movements with a GPS device. ... We are also concerned about the private use of GPS surveillance devices."

Still, that was not the court's problem, the judges decided. Unlike in New York, where the court recognized a legislative function but retained constitutional oversight, the Wisconsin court said such warrantless and private GPS tracking practices were a matter for the Legislature only.

"Consequently, we urge the legislature to explore imposing limitations on the use of GPS and similar devices by both government and private actors," the judges concluded. "Such limitations would appear to be consistent with limitations the legislature has placed on electronic intercepts of communications.

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