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Hot Debate: Can Police Use GPS to Track Criminals?

April 8th, 2013

Do police need a warrant to track your vehicle? The White House doesn’t think so, and they’re going to court to try to make it official. After the rulings, counterfulings, overrulings and general confusion of the lower courts on this issue, the Supreme Court decided in January of 2012 that in order to place a GPS tracking device on suspicious cars, police needed a warrant – sometimes. Although the ruling had some immediate impact, it failed to provide a conclusive answer to the problem due to the wording of the ruling and vague hints that certain exceptions existed. As a result, the Department of Justice filed a case with the 3rd U.S. Circuit Court of Appeals in Philadelphia to test those exceptions.

While the details of the debate can be fairly confusing, the gist of it is that the courts seem to want police to acquire a warrant before tracking vehicles, and the police say that simply isn’t practical. Because warrants take some time to be issued, police are afraid they will lose cars as they move around before a warrant is issued. And if they do manage to maintain tabs on a car, it would likely be because detectives were able to follow it as it moved, which is essentially the same thing they’re getting a warrant to allow the GPS to do for them.

The Supreme Court, for its part, argued that placing GPS devices on cars without a warrant to do so constituted an unreasonable search, and was thus in violation of the fourth amendment. But police, who have had great success apprehending criminals with the aid of GPS tracking, aren’t willing to give up the fight just yet. They’ve countered that if it is the installation of a tracking device that is unconstitutional, then using the GPS in the phone or other mobile device of someone in the car to track the vehicle is legal.

The ACLU and other civil rights organizations have been watching this battle with great concern, and have praised the Supreme Court’s ruling. Meanwhile, several senators have introduced a so-called “GPS Act” to Congress in an attempt to provide definitive guidelines to police departments as to how they can utilize GPS in tracking and arresting criminals. This issue will likely be debated for some time to come, as courts and legislators attempt to define how police may legally use GPS tracking devices.

Leftover GPS-related Case Almost Slips through the Cracks

October 17th, 2012

Earlier this year, the United States’ legislative branch really made law enforcement angry. The Supreme Court made a decision involving gathering of evidence via GPS: A warrant was required, the high court said, in order to clandestinely install a GPS tracking device on the vehicle of a criminal suspect. To say the least, this threw the law enforcement community for a loop, as longstanding policies, from the FBI down to small rural police stations, had to be revisited and modified. In some cases, existing cases had to be handled in an entirely different manner. Now, the Ninth Circuit Court of Appeals has helped to clean up the aftermath of some cases that were in limbo thanks to the Supreme Court ruling. Naturally, the ACLU is furious.

The Story

Juan Pineda-Moreno was the subject of an investigation by the DEA. It was suspected that he was manufacturing marijuana. Drug Enforcement Agency agents placed a GPS tracking device on Pineda-Moreno’s car and used it to track the suspect, to build a case, and then to finally make the arrest. Under normal circumstances, even though all the evidence obtained by the GPS was while the suspect was driving through public areas, the tracking data would be thrown out. But the Supreme Court ruling requiring a warrant for GPS tracking occurred during the court case itself. The result was an appeal… and limbo.

What the Supreme Court Said

The specifics of the US Supreme Court decision went somewhere along these lines: Law enforcement agencies can’t secretly place a GPS tracker on your vehicle if you’re suspected of a crime—not without a warrant, that is. If they do, all evidence obtained via that GPS is inadmissible. It’s a hassle to many law enforcement agencies, but it is very much the new reality.

What the Ninth Circuit Court of Appeals Said

The case of Pineda-Moreno vs. United States went to the Ninth Circuit of Appeals Court. The question was this: Evidence was obtained during the investigation using a GPS tracker. No warrant was obtained for GPS tracking, and it wasn’t a problem before, as the Supreme Court hadn’t made their decision yet. Should Juan Pineda-Moreno’s case be thrown out based on a Supreme Court decision that occurred during the case itself? The Ninth Circuit Court of Appeals said no, following a Constitutional trend forbidding ex post facto enforcement of laws.

Oops: Marijuana Bust Ruled Illegal Due to Improper GPS

July 15th, 2012

Well, at least they won’t have to give him his pot back. Robert Dale Lee was arrested in September of last year on what appeared to be a routine traffic stop. At the stop, Kentucky State Troopers “happened” to have a drug sniffing dog on hand. The dog followed its nose to a gargantuan stash of marijuana, 150 pounds’ worth, to be exact. Robert Dale Lee went into custody, lawyered up, and now, months later, stands to be a free man.

A Routine Traffic Stop?

It turned out that the routine traffic stop was not routine at all. The Drug Enforcement Administration had their eye on Lee for months, suspecting he was buying large portions of marijuana in Chicago, then shipping it to northern Kentucky and reselling it there. Lee was on parole at the time; and the GPS tracking device was installed on his truck, apparently in secrecy, while Lee met with the parole officer.

Lee then allegedly went to Chicago and purchased 150 pounds of marijuana. The DEA called the Kentucky state police after the accused crossed state lines. The police drummed up a probable cause, pulled Lee over, and instituted a search, allegedly with consent.

A Traffic Stop or Not a Traffic Stop?

The crux of the Robert Dale Lee case is the question of why he was arrested. As a result of a U.S. Supreme court ruling this year, no law enforcement may track a suspect without a warrant from a judge. The DEA did not obtain that warrant before placing the tracking device.

However, the DEA was hoping to work around the law by drumming up a routine traffic stop in order to get Lee arrested on the spot. The DEA planted the GPS device, tracked the vehicle into Kentucky, and then set the trap for Lee. So was, the resulting arrest directly related to the illegal planting of a GPS tracking device for law enforcement purposes? According to the courts, it was.

Details Matter

In the continuing battle of GPS law, law enforcement agencies, once extremely dependent on warrant-free GPS tracking of suspects, are looking for loopholes. Placing a GPS on a vehicle and setting up a routine traffic stop is apparently not a good loophole—sage advice for the law enforcement professional against foolhardily putting that GPS on a vehicle.

Employers: Use Caution When Implementing Employee Tracking

June 26th, 2012

Increasingly, employers are turning to GPS tracking to monitor employees and their use of vehicles within the company’s fleet. If you own your own fleet, have had the misfortune of suspecting an employee of vehicle or time misuse, and are entertaining the thought of installing a GPS tracking device on each of your vehicles, you must proceed with caution and follow some simple rules to ensure you are conducting the GPS surveillance legally.

An attorney with Fisher & Phillips, Bradford LeHew, feels that two recent cases speak to the issue of privacy best: US v. Jones and Cunningham v. New York State Department of Labor, both of which we’ve reported on here at RMT.

The Cases

The Jones case raised the issue of privacy in your own personal vehicle with respect to the Fourth Amendment’s protection from unreasonable search and seizure. The justices agreed that relying on the GPS data violated Jones’ Fourth Amendment right and that the government “physically occupied private property for the purpose of obtaining information.” Justice Sotomayor said, “GPS Monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” The justices agreed that the act of GPS monitoring of suspected criminals is sort of like having a police car tail you. Sotomayor added, “because GPS monitoring is cheap in comparison to conventional surveillance techniques and by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility.”

In Cunningham v. NY State Department of Labor, an appeals court in New York decided in favor of the state, saying that the state was indeed able to install a GPS tracking device on the personal vehicle of an employee suspected of misusing his time on the clock (keeping inaccurate time sheets and taking time off of work without receiving proper authorization to do so.) The state tried to conduct the usual surveillance where an investigator follows him throughout the day, but after some time with no results, they obtained permission to use a GPS device. The device was placed on Cunningham’s car, the falsified time sheets were confirmed, and although the state attorney general’s office granted the placement of the devices, Cunningham sued, claiming this act was illegal. The court felt otherwise: a 3-2 ruling was handed down, stating that the use of the devices was, in fact, reasonable. Why did the court side with the state? Three main reasons: there was an attempt made to monitor the suspect by tailing him first, and the attempt failed; Cunningham was made fully aware the state was onto him, meaning the collection of data during work hours should have come as no surprise; and the device was not constantly collecting data.

How Do Employer-Owned Vehicles Compare?

LeHew said, not much different, using a package delivery company as an example. The company had GPS tracking devices on some of its fleet to study the efficiency of the delivery routes, perfectly legal as the employee’s affected were notified of the prescence of the devices. LeHew said company vehicles should be thought of in the same way as company-owned e-mail, phone, and computers: there is no expectation of privacy when it comes to these things. In his mind, LeHew feels employers should be able to assure employees are doing what they are supposed to do, where and when they are supposed to do them. If that means GPS monitoring, so be it.

What Employers Can Do

The first step, according to LeHew, is a clearly stated policy on such a practice, especially assuring each employee knows the company might at some point track their location using a GPS device. This policy should specify instances GPS monitoring might be used to benefit the employer. The policy should serve the best interest of the employer while still preserving the privacy rights of the employee when they are not at work.

It is possible to deactivate the tracking device, and employees can be trained accordingly in this practice. Assure managers are made aware this type of monitoring must not be overused. The best way, LeHew said, to assure employees aren’t conducting personal business during company time: requiring employees to submit mileage logs that can be compared with the car’s odometer. Remember to exhaust all possibilities prior to using a GPS tracking device.

Obama Administration Claims Warrantless GPS Tracking is Legal and Necessary

June 25th, 2012

Back in January of this year, the US Supreme Court ruled that a warrant is constitutionally required before attaching a GPS tracking device to a suspect’s vehicle. In the historic case, US v. Jones, the evidence gathered from a GPS tracking device, placed on Antoine Jones’ vehicle by federal agents was deemed unusable. Despite the ruling from the highest court in the land, the Obama Administration is arguing that GPS tracking does not require a warrant. “A warrant is not needed for a GPS search, as the [Supreme] Court … did not resolve that question.” said a spokesperson from the US Justice Department.

However, the department was also quoted in the Wall Street Journal, stating that they’ve “advised agents and prosecutors going forward to take the most prudent steps and obtain a warrant for new or ongoing investigations,” as a precaution. At the heart of this issue is the Fourth Amendment to the Constitution, which 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.”

Law enforcement agents and representatives have claimed that there is no reasonable expectation of privacy on public roads, and that GPS tracking is merely a “limited intrusion”. Furthermore, the US government claims that requiring a warrant would severely limit their ability to protect citizens from internal and external threats. In a statement submitted to the Ninth Circuit appeals court, the Obama Administrations claims that “requiring a warrant and probable cause would seriously impede the government’s ability to investigate drug trafficking, terrorism and other crimes.”

Fortunately, the ACLU and other civil rights groups are working to preserve the rights of US citizens. In an ongoing case, attorneys from the ACLU filed a brief with the Ninth Circuit, stating, “The warrant requirement is especially important here given the extraordinary intrusiveness of modern-day electronic surveillance. Without a warrant requirement, the low cost of GPS tracking and data storage would permit the police to continuously track every driver.”

ACLU Investigates Mobile Phone Tracking

June 5th, 2012

Do you own a smartphone? If so, you’ve joined the majority of all mobile phone users in the US. Approximately 74% of these smartphone owners rely on location-based information, such as local restaurants, directions, and more, according to a Pew Internet & American Life Project poll. Some feel this is something to be concerned about, as it poses a bit of a privacy risk. However, it isn’t the average person using your GPS location you should be concerned about. Rather, you should be more worried your local police department can access this data.

The ACLU questioned 383 police departments last month, asking them if they track people via the GPS location data on their cellphones. 200 of the departments responded, and only 10 of them said they had never tracked using location data from a cellphone.

Should this issue be addressed? Well, of course. While I agree that some cases warrant the use of a person’s GPS location data, the majority don’t. Policies need to be written as to proper procedure for using this powerful tool, otherwise we could have a Big Brother scenario on our hands.

The ACLU says it best: “The government’s location tracking policies should be clear, uniform, and protective of privacy, but instead are in a state of chaos, with agencies in different towns following different rules – or in some cases, having no rules at all.”

It’s true that the some police departments obtain a warrant stating probable cause prior to accessing cellphone GPS location data. However, there are those who do not, and sometimes, departments in neighboring towns have conflicting protocol when it comes to collecting GPS data. For example, the local police of Lexington, KY requires a warrant each and every time location data is requested, while the Kentucky State Police don’t require one at all.

What, exactly, do police ask for? It can vary. Standard cell phone records are no big thing, although a warrant is required for this practice. With smartphones, tracking becomes a breeze. For example, in Lincoln, NE the police department asks the cellphone provider for “subscriber information, GPS, precision location, and/or latitude/longitude coordinates” for the phone they are tracking.

The Jones case, which we’ve reported on extensively, is the first step to dealing with any tracking issues. If you can’t place a GPS tracking device on a vehicle without a warrant, how can you then begin following a suspect’s movements using the GPS location data collected by the phone they carry in their pocket? There is an expected level of privacy as we go about our daily routine, and this violates that. This isn’t to say that the data should be inaccessible. Rather, the authorities should be expected to obtain a warrant after proving probable cause. You can be sure as more people turn to smartphones, this issue will be addressed in the courts. It’s only a matter of time.

U.S. Senator Inquiring Into Department of Justice’s GPS Tracking Procedures

May 27th, 2012

Senator Al Franken, a Democrat representing Minnesota, recently inquired into the GPS tracking policies of the U.S. Department of Justice. The letter was made public, and expresses concerns about how January’s Supreme Court decision making warrantless GPS tracking illegal, had affected their policies when requesting GPS data from wireless carriers.

“I am writing to ask you about the Department of Justice’s own practices in requesting location information from wireless carriers,” wrote Franken. “I am eager to learn about how frequently the Department requests location information and what legal standard the Department believes it must meet to obtain it. I would also like to know how the department may have changed these practices since the Jones decision.”

Franken isn’t the only government representative with these concerns. Just last week, Congressman Edward J. Markey, (D-Mass.), sent a similar letter to all of the major wireless carriers. “Information gleaned from mobile phone use should be accessible for appropriate law-enforcement purposes,” said Markey. “Still, disclosure of this personal information raises important legal and privacy concerns, particularly in the absence of consumer knowledge or consent or judicial oversight. We need more information about current wireless carrier practices in this area, including how firms may be profiting from consumers’ personal data, and I look forward to the responses from the wireless carriers,”

“It is startling how even such basic information isn’t available,” wrote blogger Chris Calabrese, from the ACLU’s [American Civil Liberties Union] Washington Legislative office. “Remember that our FOIA [Freedom of Information Act] revealed that this is an extraordinarily common law-enforcement practice, with only 10 of 190 police departments we surveyed saying they did not track cell phones. DOJ [Department of Justice] has been employing cell tracking for more than a decade. Letters like these are the first step in oversight.”

Woman Finds GPS Under Her SUV; Sheriff Claims it Wasn’t Used to Track Her

May 26th, 2012

One of the major controversies surrounding GPS tracking technology has to do with personal privacy. Although GPS could be credited for many advances in science, technology, and everyday living, a lot of people are still wary of the newfound ability to locate anyone, anywhere, using satellites from space. One such critic had her fears brought to life when she found a GPS tracking device attached to her SUV on May 3, 2012. Deputies in Fort Collins, Colorado attached the device to Stacy Lynne’s vehicle back in December as a precautionary measure, but claim to never have turned it on. “That is unbelievable. I think that’s unbelievable. Isn’t that called stalking?” asked Lynne.

Stacy Lynne had recently lost a custody battle and was ordered to turn over her son to her ex-husband. Not recognizing the authority of the court, she refused to follow the court’s orders. While she was in a local copy shop on Dec. 21, 2011, working on her legal pleading, the deputies placed a GPS tracking device on her SUV before arresting her. “They did place a GPS tracker on that vehicle because we didn’t know where that kid was. There was a fear that she would flee with the child,” explained Larimer County Sheriff Justin Smith. “We had a court order that this child needed to be safely returned.” She was only held in jail for a few hours while her son was returned to his father, and never faced any charges.

According to the Sheriff, his department didn’t break any laws by placing the tracking device on Lynne’s vehicle without a warrant, because they never turned the device on. During the following months, the deputies made repeated attempts to retrieve the device without Lynne’s knowledge. Unfortunately, she began to notice a police presence following her, and eventually located the device under her SUV. “They just couldn’t find it, and we didn’t want to trespass on private property to retrieve it,” said Smith. “Certainly in this case, the last thing I wanted to see was things that would add to her angst… I’m not happy it was just floating out there. We should have found a way. We should have gotten that thing back,” Smith said.

Police Use GPS Tracking in Gun Smuggler Arrest

May 25th, 2012

There has been a lot of debate over the last couple years regarding police use of GPS tracking devices. Many fear that such accurate tracking technology will be misused by law enforcement, and the Supreme Court decided earlier this year that police needed to obtain a warrant before attaching a GPS tracking device to a suspect’s vehicle. It’s easy to get carried away with the dangers of allowing police to track people with GPS, fearing signs that society is heading towards a dystopian 1984-type of environment. However, let’s not let fear blind us to the valuable information provided by the technology.

Police in Jackson County, Mississippi were recently able to apprehend a suspect smuggling guns into Mexico with the help of GPS tracking. Not the most sophisticated criminal operation, Javier Molina was pulled over on Interstate 10 transporting nine rifles, eight pistols, five shotguns, as well as ammunition and gun parts in his uncle’s 1994 black Ford Ranger. His uncle, Jose Luis Santos-Garcia, was pulled over in the same vehicle only a few months earlier, also trying to transport weapons. The uncle was caught with two pistols, three bullet-proof vests, and stolen four-wheelers on the same route into Mexico.

Earlier this month, Molina plead guilty to one count of attempted exportation of guns and ammunition, but his uncle has plead not guilty. However, his attorney has filed paperwork with the court asking for more time to work out a guilty plea. The GPS tracking device was legally attached to the undercarriage of the truck while in police custody, when Santos Garcia was arrested in April of 2011 for cocaine possession. The GPS device alerted authorities that the vehicle was on a suspect route through North Carolina, but the signal was lost in Alabama. An officer in south Mississippi spotted the truck and pulled Molina over, finding enough evidence to make an arrest.

Does GPS Belong in the Workplace?

May 21st, 2012

US v. Jones rocked the world of law enforcement, sending many offices including the FBI back to square one on many cases of GPS surveillance that lacked a warrant granting the right for this intrusion into the private lives of many suspected criminals. It was the unanimous agreement that any surveillance period using a GPS tracking device takes away an individual’s expectation of privacy when going about their day-to-day activities. After any landmark Supreme Court decision such as this more issues are typically brought before the court relating to it, and some wonder if the court will soon address the issue of GPS tracking devices used in the workplace to keep track of the whereabouts of employees.

Using the Jones case as a guideline, global law firm Proskauer predicts GPS in the workplace will soon come before the Supreme Court, mostly because of the privacy issues addressed in the Jones case. Justice Scalia raised the issue of trespass once a device is placed on a suspect’s vehicle, and this could possibly lead to the decision that GPS devices are not allowed on employees personal vehicle.

In the months leading up to the Jones decision, a New York court decided that affixing a GPS device to the personal vehicle of a government employee in attempts to prove misconduct during business hours was in fact legal. A New Jersey court decided in the case of a private investigator being monitored via GPS in his own personal vehicle that the employer had not violated his right to privacy as he “did not allege travel to any secluded or private areas where there might be an expectation of privacy.”

Back to the Jones case, where Justices Sotomayor and Alito pointed out that the length of time the GPS tracking device was used goes too far with respect to the Fourth Amendment, which addresses an individual’s right to privacy. Jones was monitored for four weeks, and Sotomayor felt this would make investigators privy to a host of irrelevant information, including political, religious, familial, professional, and even sexual associations.

The states of California and Texas have laws currently in place making the installation of GPS tracking devices illegal without the consent of the vehicle’s owner. However, this does not apply to employer-owned vehicles. Only a few courts have faced cases dealing with the monitoring of employees using GPS. A federal court in Missouri permitted the use of a GPS tracking device on a company car back in 2005, stating it was in fact not at all an invasion of privacy. The employer owns the car, and as such should be able to install whatever they wish, including a GPS device to monitor the employee that happens to be driving it. Usually this is done because there is suspected misconduct, like reports of an employee taking care of personal business on company time or not showing up where the employee is supposed to at the scheduled time.

Regardless of whether or not a company chooses to track their employees, it all comes down to how they go about it. It is this author’s opinion that personal vehicles be kept out of the discussion altogether, leaving only company vehicles as an option for the installation of GPS devices. It shouldn’t matter where that person goes in their own car. At the same time, there should be rules put in place addressing the practice of GPS monitoring of employees in company cars, such as making them aware they are being tracked. It is expected that this will be brought before the Supreme Court at some point in the near future, and you can count on RMT to keep you up to date throughout the process.

How do you feel about the use of GPS tracking devices in the workplace?