The Vindicator: More time to install GPS

Matthew T. Mangino
The Youngstown Vindicator
July 6, 2014
Last week a new state court rule of procedure, proposed by the Ohio Supreme Court, took effect. The rule gives prosecutors and law enforcement up to 10 days, instead of three days, to install an electronic Global Positioning System (GPS) device to track a person, vehicle, container or package.
GPS is a network of global navigation satellites operated and maintained by the U.S. government. The space-based system was set up to enhance navigational systems. GPS can now provide accurate positional data at any given time, in any weather condition, anywhere on Earth. This data may be freely obtained using a GPS receiver. The technology is so widely available that many new vehicles, and all smartphones, come with GPS for everyday use.
Little fanfare
The Ohio rule was adopted with little fanfare. The Ohio Constitution requires that Rules of Practice and Procedure be filed with the General Assembly. The rule could have been blocked if the General Assembly specifically objected to the change. Legislators are not in Columbus and won’t be again until the fall. The rule became effective July 1.
Two years ago, the U.S. Supreme Court ruled that police must obtain a search warrant before attaching an electronic tracking device to a vehicle. Ohio’s new rule complies with the Supreme Court’s directive. However, it provides law enforcement with an advantage the Supreme Court refused to acknowledge.
When the Supreme Court decided United States v. Jones, 565 U.S. ___ (2012), the justices unanimously ruled that the police violated the U.S. Constitution when they placed a GPS device on a suspect’s car and monitored the vehicle’s movements. The police had obtained a warrant before placing the device on Jones’ vehicle.
The Jones case began in 2004. At that time, a law enforcement task force began investigating Jones, a nightclub owner, for alleged cocaine trafficking.
According to Law.com, the task force obtained a warrant and covertly installed a GPS device on Jones’ Jeep Grand Cherokee. However, the task force installed the device one day after the expiration of the warrant. Using information obtained from the device, the task force was able to locate Jones and obtain surveillance photos and videos at a suspected drug house.

Ohio’s new rule extends the life of a warrant. A warrant should be reasonable with regard to time and scope. Ohio has, without much objection, tripled the lifespan of a warrant authorizing a device to track the whereabouts of the target of an investigation.
Franklin County Prosecutor Ron O’Brien told the Columbus Dispatch that the three-day rule has been in effect for about 40 years, starting well before the development of sophisticated electronic devices to track either a package or a vehicle.
“On occasion, once you develop a case, a car goes missing and you can’t find it within three days,” O’Brien said. “Then we would have to go get a new warrant.”
Sixty-five years ago, the U.S. Supreme Court said that the Fourth Amendment doesn’t deny police officers the discretion to draw an inference from evidence; it simply ensures that inferences will be reviewed by a “detached magistrate.”
Stale warrant
The detached magistrate’s review is essential to ensure the protections of the Fourth Amendment. A fundamental protection for those suspected of a crime is that a stale — untimely — warrant will not be honored.
The Ohio Supreme Court has now precluded the detached magistrate from determining how much time is reasonable as it relates to carrying out the directives of a warrant. The U.S. Supreme Court was offended by a stale warrant in 2012—Ohio now intends to avoid the staleness issue altogether.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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Third Circuit considers GPS and 'good faith' exception

Evidence police collected from a GPS device they attached to a suspect's vehicle without a warrant should be admissable because the officers relied in good faith on legal precedent at the time, the U.S. Attorney's Office argued in front of an en banc panel of the Third Circuit, reported The Legal Intelligencer.
Both the trial judge and the three-judge panel of the U.S. Court of Appeals for the Third Circuit that initially heard arguments had decided that the evidence should be suppressed, although the decision of the panel split on that issue. "You're asking for an extension of the good-faith doctrine," Judge D. Brooks Smith said to Robert A. Zauzmer, the assistant U.S. attorney who was arguing the case. Smith sat on the original appeals court panel and joined the majority opinion to suppress the evidence.
"We're asking for what I've described as a very, very slight extension of Davis," said Zauzmer, who was accompanied by U.S. Attorney Zane Memeger of the Eastern District of Pennsylvania. Zauzmer was referring to the U.S. Supreme Court's 2011 opinion in Davis v. United States, in which the high court ruled that the fruits of searches that were conducted in good faith with reasonable reliance on available legal precedent at the time of the search can be used in court. Chief Judge Theodore McKee commended Zauzmer for his candor, saying, "You conceded you were advocating a slight extension of Davis."
However, Catherine Crump, of the American Civil Liberties Union, argued that Davis wouldn't apply to this case. Crump is representing the three brothers who allegedly burglarized area Rite Aid pharmacies in 2010 and were tracked by FBI agents. "Davis does not control the result here. The Supreme Court specifically limited Davis to situations where there is binding precedent on point," according to the ACLU.
There was no such precedent when the FBI attached a GPS tracker to the vehicle used by the Katzin brothers, the ACLU argued. The year after the U.S. Supreme Court decided Davis, it decided United States v. Jones, in which it determined that the use of a GPS tracker would constitute a search under the Fourth Amendment. It didn't, however, declare whether or not a warrant would be required for the use of a GPS.
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The U.S. Supreme Court Takes on Cellphones and Privacy

Matthew T. Mangino
The Pennsylvania Law Weekly
February 3, 2014
The Fourth Amendment has protected individuals from unlawful governmental searches and seizures for more than two centuries. Initially, the thrust of the Fourth Amendment focused on the homes of early Americans—those places where individuals wanted to remain "secure in their persons, houses, papers and effects."
Today, the Fourth Amendment is being tested in ways that would have been unimaginable when the U.S. Constitution was written.
Last fall, the Washington Post reported that U.S. Supreme Court Chief Justice John G. Roberts Jr. told a room full of college students that the biggest constitutional challenge facing the court was "the fundamental principle underlying what constitutional protection is and apply[ing] it to new issues and new technology."
The Supreme Court will take on another aspect of that challenge when it considers whether police need a warrant to search the contents of a cellphone seized when making an arrest.
This April, the court will hear oral arguments in two cases, Riley v. California, No. 13-132, and United States v. Wurie, No. 13-212. Each case deals with similar, but not identical, technologies. The Wurie case is out of Massachusetts and deals with an old-style flip phone, while the Riley case out of California deals with a smartphone.
Forty years ago, the Supreme Court established the search-incident-to-arrest doctrine in United States v. Robinson, 414 U.S. 218 (1973). Such a search permits an arresting officer to seize and search any item found on an arrestee.
Under the court's ruling, the police could conduct a "full search of the person [of an arrestee], his effects and the area within his immediate reach without regard to any exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of the crime for which the person is arrested."
The defendants in the current cases are suggesting that a cellphone is unlike any other evidence that can be found on an individual incident to an arrest.
Judge Norman H. Stahl of the U.S. Court of Appeals for the First Circuit wrote in the lower court opinion in Wurie, "That [cellphone] information is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email and voicemail), contacts, calendar appointments, Web search and browsing history, purchases and financial and medical records." He added, "It is the kind of information one would previously have stored in one's home."
Wurie and Riley reflect the deep split between federal appeals courts and state supreme courts regarding the application of constitutional protections to modern technology.
"At least six courts hold that the Fourth Amendment permits such searches, while at least three others hold that it does not," Jeffrey L. Fisher, a Stanford law professor representing David Riley, told the Washington Post.
In 2007, Brima Wurie was picked up in Massachusetts on suspicion of selling crack cocaine. Soon after arriving at the police station, officers noticed that one of Wurie's cellphones, a flip phone that a user must open to make calls, was repeatedly receiving calls from a number identified as "my house" on the phone's external screen.
The police typed the number for "my house" into an online directory and learned that it was associated with an address on Silver Street in South Boston. They went to the Silver Street location and found guns and drugs.
The evidence was used to convict Wurie and he was sentenced to 262 months in prison. The First Circuit reversed the lower court. The appeals court ruled that cellphone information is protected.
The other case is from California, where judges went the other way. The California Supreme Court ruled that police may search a cellphone when the phone is "immediately associated with [the arrestee's] person."
Police examined Riley's cellphone and found information that led them to believe he was in a gang. A photograph on the phone tied him to a shooting. Riley was convicted and sentenced to 15 years in prison.
These cases are a continuation of a line of cases wherein the Supreme Court has methodically taken on issues relating to the Fourth Amendment and evolving issues of technology. In the court's last term, a majority of justices ruled that in most cases, police officers must obtain a warrant before forcing a suspected drunken driver to take a blood test.
Justice Anthony M. Kennedy wrote in Missouri v. McNeely, 133 S.Ct. 832 (2013), that "always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment."
In a separate case, the Supreme Court also found that DNA testing is equivalent to fingerprinting. The high court approved Maryland's law that allows police to take DNA swabs at the time someone is arrested for a serious violent crime.
In Maryland v. King, 569 U.S. ___ (2013), the court held that "taking and analyzing a cheek swab of the arrestee's DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment."
Kennedy wrote in King that the swabbing procedure was a search under the Fourth Amendment and therefore had to be justified as reasonable under the circumstances. The procedure was reasonable given "the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody."
Last year, the Supreme Court unanimously ruled that the police violated the U.S. Constitution when they placed a GPS tracking device on a suspect's car and monitored its movements for nearly a month.
Walter Dellinger, a lawyer for the defendant in United States v. Jones, 565 U.S. ___ (2012), told The New York Times the decision "is a signal event in Fourth Amendment history."
"Law enforcement is now on notice," he said, "that almost any use of GPS electronic surveillance of a citizen's movement will be legally questionable unless a warrant is obtained in advance."
The decisions in Riley and Wurie will be closely scrutinized. Will the Supreme Court restrict or expand the protections of the Fourth Amendment? The high court's record in recent decisions provides little guidance. 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," is due out this summer. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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The Cautionary Instruction: Tracking sex offenders for life

The Pittsburgh Post-Gazette/Ipso Facto
November 2, 2012

Florida law provides that all sex offenders convicted of an offense against a child under age 12 shall be monitored by GPS tracking technology for life. The law was named for Jessica Lunsford who was raped and murdered by a convicted sex offender in 2005.

Forty-one states and the District of Columbia have some form of electronic monitoring of offenders.  In Pennsylvania, the statute provides “The Pennsylvania Board of Probation and Parole and county probation authorities may impose supervision conditions that include offender tracking through global positioning system technology.”

At least seventeen states have laws that provide for some form of electronic tracking for sex offenders on supervised release and some states including Florida, Missouri, Ohio, Illinois Oklahoma, South Carolina and California have laws which require certain high-risk child and violent sex offenders to be monitored by GPS for life.

A study of California’s sex offender GPS tracking found significantly better outcomes for both compliance and recidivism. Re-arrest is twice as high for those offenders under traditional parole supervision. In terms of violating parole, those under GPS monitoring were 38 percent less likely to violate than those under traditional parole supervision. However, GPS monitoring costs about 30 percent more a day than traditional parole supervision.

GPS devices are capable of tracking all of an offender’s movements, both in and outside the home or place of work. In fact, commercial GPS technology is so accurate that systems can locate an offender anywhere on land or sea within a margin of error of about six feet.

There are two forms GPS monitoring -- passive and active. A passive system transmits data to the supervising agency, once or twice a day, on an offender’s movements. An active system monitors an offender in real time. If an offender enters or leaves a restricted zone the agency would be immediately notified of the offender’s location.

In May, the South Carolina Supreme Court struck down a statute that provided for life-time GPS monitoring of sex offenders. However, the court took an unusual turn and granted reconsideration of the case. Additional arguments were conducted in September and the decision is pending.

The U.S. Supreme Court has not addressed the use of lifetime electronic monitoring although they have upheld sex offender registration requirements.  Last year, the Supreme Court struck down GPS tracking by police of an individual without a search warrant.

The Supreme Court may eventually find that lifetime GPS monitoring of sex offenders is justified after balancing the offender’s individual rights against the government’s interest in protecting society against sex-offenders.

Some complain that wearing a GPS bracelet for life is overly burdensome and intrusive. However, sub-dermal (under the skin) devices may be right around the corner. Inserting an electronic tracking chip for life -- is that less intrusive or more intrusive?

NY: Local jails overcrowded, send inmates to state prison

NY experience may be eye-opener for PA JRI

The Justice Reinvestment Initiative is under way in Pennsylvania.  One of the initiative's major components is the diversion of state inmates from state correctional facilities to local county jails.

In New York "under-filled" state prisons are being looked at as a means to relieve costly overcrowding in local jails.  New York state legislators feel the length of time it takes for inmates to be transferred to state prisons is too long, according to CYN Central.

Pennsylvania is counting on using the savings from reducing the state prison population to fund local efforts like incentivizing counties to keep state prisoners in local jails.   According to the sheriffs of three counties, holding state prisoners is costing taxpayers in those county jails more than $2 million per year. It costs up to $100 per day to house an inmate in a local jail, reported CYN.

Following a meeting on local jail crowding State Senator Patty Ritchie said  "The meeting stems from an effort ... to provide additional mandate relief for local taxpayers by addressing the problem of state prisoners being held in local county jails."

Often a parole violator will spend months in a local jail before he or she is transferred to a state prison. Ritchie says many state prisons are under-filled and she's proposed using the existing prisons  as "hubs" to hold state parole violators, reported CYN.

Last year, the State Senate passed a bill that would require the State Corrections to transfer parole violators to state prisons within 10 days, or the state would bear the costs. The bill was referred to the State Assembly but did not come up for a vote.

The overcrowding problem is some counties that legislators are looking into alternatives that will allow accused criminals to remain in the community with GPS tracking devises, according to CYN.

To read more: http://www.cnycentral.com/news/story.aspx?id=813113

Supreme Court Victory Doesn't Stop Re-Trial

In January, the U.S. Supreme Court decide United States v. Jones.  The court ruled that law enforcement's warrantless installation and use of a GPS device to track a suspect's vehicle violated privacy rights protected by the Fourth Amendment. Although, Antoine Jones won before the high court is case is not over.

"It is important to be clear about what occurred in this case: The government physically occupied private property for the purpose of obtaining information," wrote Justice Antonin Scalia, reported Law.com. "We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

The landmark decision was a significant defeat for the government in the divided 5-4 decision.

The Jones case began in 2004. At that time, a federal and local law enforcement task force began investigating the defendant, a nightclub owner and operator, for alleged cocaine trafficking.

According to Law.Com, the task force also covertly installed a GPS tracking device on Mr. Jones' Jeep Grand Cherokee. Originally, the task force obtained a warrant to install the device, but installed the device one day after the expiration of the warrant. Using information obtained from the device, the task force was able to locate the defendant and obtain surveillance photos and videos at a suspected stash house in Maryland.

Just when Jones thought he won, the DOJ said not so fast. An assistant U.S. attorney, John Geise, told a federal judge that the government is preparing to retry Jones for his alleged role in a cocaine trafficking conspiracy. An appeals court in 2010 erased Jones’ conviction and tossed his life sentence, reported the Legal Times.

The government, Geise said, is trying to track down witnesses for the trial, which he expected to be scheduled sometime later this year, perhaps as early as this summer. Geise said prosecutors could decide to rely on earlier testimony from those witnesses.

Geise said prosecutors are examining evidence not related to the GPS data investigators obtained from the illegal device.

A new trial for Jones will be his third. The first jury acquitted him on most charges. Prosecutors later retried him only on the conspiracy count. A jury in 2008 convicted him on that charge, which carried a mandatory life sentence, reported the Legal Times.

To read more: http://legaltimes.typepad.com/blt/2012/03/doj-presses-on-with-third-trial-in-landmark-gps-case-.html

U.S. Supreme Court: Warrant Needed to Attach GPS Device

The U.S Supreme Court unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days, according to Adam Liptak of the New York Times.

The justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. The facts suggested that the police obtained a warrant but did not act on it in a timely manner nor did they carry-out the warrant as intended.  The police placed a GPS device on a vehicle while the vehicle sat on private property.

Liptak wrote that the ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.

Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, told the Times the decision “is a signal event in Fourth Amendment history.”

“Law enforcement is now on notice,” he said, “that almost any use of G.P.S. electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”

Though the ruling was limited to physical intrusions, the opinions in the case collectively suggested that a majority of the justices are prepared to apply broad Fourth Amendment privacy principles unrelated to such intrusions to an array of modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance and records kept by online merchants, reported Liptak.

To read more:  http://www.nytimes.com/2012/01/24/us/police-use-of-gps-is-ruled-unconstitutional.html?_r=1&pagewanted=print

Orwell's '1984' meets courts of 2011

This fall the U.S. Supreme Court will hear arguments in United States v. Jones, No. 10-1259, the most important Fourth Amendment case in a decade, reported the New York Times. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?
Their answer will bring Fourth Amendment law into the digital age, addressing how its 18th-century prohibition of “unreasonable searches and seizures” applies to a world in which people’s movements are continuously recorded by devices in their cars, pockets and purses, by toll plazas and by transit systems.
The Jones case will address not only whether the placement of a space-age tracking device on the outside of a vehicle without a warrant qualifies as a search, but also whether the intensive monitoring it allows is different in kind from conventional surveillance by police officers who stake out suspects and tail their cars, reported the Times.
The issue of GPS surveillance has brought countless judicial references to George Orwell's futuristic novel "1984."
In April, according to the Times, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last," reported the Times.
Last month, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn turned down a government request for 113 days of location data from cellphone towers, citing “Orwellian intrusion” and saying the courts must “begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

To read more:  http://www.nytimes.com/2011/09/11/us/11gps.html?_r=2&hp