Tuesday, October 28, 2008

Local GPS Case Might Set Precedent, Expert Says

By Jill King Greenwood
pittsburghlive.com

A federal court case in Pittsburgh could reach the U.S. Supreme Court for a "groundbreaking" decision about whether police officers need probable cause and search warrants to use GPS technology when tracking suspects, a local expert in constitutional law said.

Across the country, detectives are using the sometimes-controversial technology to investigate cases. But Pennsylvania law doesn't clearly dictate rules, said University of Pittsburgh School of Law professor John Burkoff, author of the "Search Warrant Law Deskbook."

"The law isn't entirely clear," Burkoff said. "There are many areas open to challenge, and to be safe, the best bet would be for a police officer to get a search warrant using probable cause to protect themselves. We're still figuring out -- the courts are -- about how to handle GPS data."


In Pittsburgh, federal prosecutors appealed a decision prohibiting them from seeking cell phone tracking information without first establishing probable cause.

In February, five federal magistrate judges rebuffed a request from the U.S. Attorney's Office, saying it ran afoul of privacy rights guaranteed by the Fourth Amendment.

"This case and a few others like it around the country could end up being groundbreaking and deciding how police and the courts should handle using this technology," Burkoff said.

When a cell phone is turned on, it constantly relays location information to towers serving its network. The phone scans for the strongest signal about every seven seconds.

Federal prosecutors want to obtain that stored information through warrantless cell phone tracking -- sometimes through real-time surveillance or, as prosecutors in Pittsburgh requested, through historic data showing where a user was at any given time.

Assistant U.S. Attorney Soo Song filed a request under seal in November seeking an alleged drug dealer's cell phone records based simply on its relevance to an ongoing investigation. U.S. Magistrate Judge Lisa Pupo Lenihan noted that the government "is experiencing difficulty in visually surveilling that person."

Lenihan and four other magistrates signed a 52-page order rejecting the government's request.

'Big Brother' feared

Privacy advocates say using the technology violates a person's Fourth Amendment rights -- a guard against unreasonable searches and seizures -- and comes dangerously close to creating a "Big Brother" police state.

Law enforcement officers said tracking suspects electronically costs less than having an officer follow a suspect and yields the same results.

"Not only are (electronic trackers) useful in drug investigations, but they should be attached to a car of anyone on parole or probation who is not permitted to be somewhere, on those who have been served with (protection-from-abuse orders) and on those people being tracked under Megan's Law," said Elizabeth Township police Chief Robert W. McNeilly Jr., who was Pittsburgh police chief for a decade.

He supports the use of GPS but said his department doesn't have the resources to use the technology.

Many departments in Allegheny and Westmoreland counties declined to say whether they use the technology, because they don't want to tip criminals about their investigative tools.

Police in Moon used GPS technology to track the signal in a cell phone left inside a stolen sport utility vehicle in July. Through satellite coordinates, authorities located the Cadillac Escalade and arrested Michael Anthony Hudak, 23, of Clinton. The SUV's owner wanted to find the vehicle quickly because his dog was inside.

In Fairfax County, Va., a rape suspect was caught earlier this year after police put a GPS device on his car. When he was arrested, police said, he was dragging a woman into a wooded area to assault her.

Police in Washington state earlier this year attached a GPS device to a suspect's vehicle and arrested him on charges of killing his 9-year-old daughter after he drove to the site where the killer had buried her.

In New York, investigators caught a drug suspect after monitoring his car as he bought and sold methamphetamine. In Wisconsin, police said they attached a GPS device to the car of two burglary suspects and arrested them after they broke into a house.

"I've seen them in cases from New York City to small towns -- whoever can afford to get the equipment and plant it on a car," said John Wesley Hall, president of the National Association of Criminal Defense Lawyers. "And of course, it's easy to do. You can sneak up on a car and plant it at any time."

Police mum about GPS

Many local departments are hesitant to discuss the use of GPS technology.

"Whether or not we do is not something we would disclose so the criminals would know," said Pittsburgh police Cmdr. Cheryl Doubt, who oversees narcotics and vice squad investigations.

Monroeville police Chief George Polnar said his department does not use GPS devices to track suspects but he supports the idea.

"I agree with the rationale," he said. "It is much less expensive than a stake-out."

North Huntingdon police Chief Mike Daugherty said some of his officers set aside money from their clothing allowances to buy their own GPS devices -- not to track suspects, but to map the best route to the location of an accident or crime scene.

Police departments in Jeannette and Murrysville do not use GPS technology. Penn Township has one but uses it sparingly, said Capt. Allan Anderson.

"If we get in a situation where we have to call a helicopter in, we use it to get coordinates," Anderson said.

Delicate balance

Sam Cordes, a Pittsburgh civil rights attorney with Ogg, Cordes, Murphy and Ignelzi, Downtown, said the right of police to use technology such as GPS must balance with a suspect's right to a reasonable expectation of privacy.

"If you're walking around on a sidewalk, I can follow you and videotape you because you're in public and don't have a reasonable expectation of privacy. There's nothing illegal about it, and the courts have ruled that police can put a GPS device on your car and track you if they have a reasonable belief that a crime has been committed," Cordes said. "But it does call up notions of a totalitarian state watching your every move.

"The government and police say they are trying to keep people safe, but our rights do come into question. It's a balancing act."

Craig Fraser, director of management services for the Police Executive Research Forum, said legal adjustments might be necessary as technology develops.

"The issue is whether the more sophisticated tools are doing the same things we used to do or are creating a different set of legal circumstances," he said.

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