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October 18, 2011

Police GPS Action Rejected by Ohio Court

The state courts in Ohio have been at the forefront of protecting electronic data from police searches.  In 2009, for example, the Ohio Supreme Court set a significant precedent by holding that police could not search a cell phone incident to an arrest.  You can read my detailed take on that decision here.

Last month, an Ohio Appeals Court issued what could become a significant opinion on the issue of GPS tracking.  This is an issue soon to be decided by the U.S. Supreme Court.

The case is State v. Sullivan. In this case, officers were investigating a series of home break-ins.  Undercover officers placed a GPS tracking unit under the bumper of a suspect’s Honda Civic. No warrant was obtained. While following the movements of the car on a laptop, police learned that a home invasion had been committed in the vicinity where the car had been tracked.  The car was subsequently tracked until it arrived back at the defendant’s home.  Property taken during the home invasion was recovered from the Honda Civic.

The court held that the warrantless placement of the GPS device was prohibited by the Fourth Amendment.  Notably, in reaching this opinion, the court relied upon a general “right of privacy guaranteed to the citizens of this nation” and cited, among other decisions, Griswold v. Connecticut (1965). The court wrote: 

The initial placement of the GPS tracking device but also its attachment during the entire period of its use implicates Fourth Amendment interests of the privacy rights of persons. When a person parks his car on a public way, he does not thereby give up all expectations of privacy in his vehicle. There is no way to lock a door or place the car under a protective cloak as a signal to the police that one considers the car private.  Checking vehicle identification numbers, taking paint scrapings or observing objects in plain view of the car are minimal and momentary intrusions which can be distinguished from the installation of the GPS tracking device. . . . We are unwilling to hold that every citizen runs the risk that the government will plant a GPS tracking device in his car in order to track his movements, merely because he drives his car in areas accessible to the public. A citizen has a right to expect that when she drives her car into the street the police or anyone else will not attach a GPS tracking device to her car in order to track her without first obtaining a warrant authorizing the placement of the tracking device.

The court distinguished the use of GPS devices from traditional surveillance.  The “placement of the GPS tracking device makes possible the continuous and indefinite tracing of the individual's movements, wherever he goes. It permits surveillance far beyond any ordinary powers of observation about which citizens may reasonably know . . .” 

The Fourth Amendment was implicated because the “GPS tracking device employed in the case at bar permits the continuous and indefinite tracing of the individual's movements, wherever he goes. It permits surveillance far beyond any ordinary powers of observation about which citizens may reasonably know, as the government inferentially admits when it contends that placement of the device was necessary in order to effectuate continuous surveillance.” 




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