Bill: Warrant would be needed for GPS tracking
By Peter Vieth
Published: June 22, 2011
Tags: Constitutional, Criminal, Franklin County Circuit Court, Judge William N. Alexander IIPublished: June 22, 2011
A bill introduced in Congress this month would put an end to a common police practice – use of a GPS tracking device without a warrant to follow a suspect.
The measure would force law enforcement to get a judicial OK before using such electronic surveillance.
Supporters say the bill protects basic privacy rights. Police and private investigators worry the federal bill would deny the use of a valuable tool for capturing criminals and monitoring other wrongdoers.
U.S. Rep. Robert Goodlatte, R-Va., an original co-sponsor of the bill, said using satellite technology to map someone’s whereabouts is akin to wiretapping, and police should be held to the same requirement for obtaining warrants. “You should have to establish probable cause that individual is involved in a criminal act,” he said.
There also is a push by major telecommunications companies to protect their customers’ sense of privacy, Goodlatte explained. “They are very concerned smartphones will lose some of their popularity because of fears police will use the technology to track what [users] are doing in their everyday lives,” he said.
The bill, H.R. 2168, would require police to go to court, show probable cause of a criminal connection, and get a warrant before obtaining geolocation information from devices like tablets, smartphones and GPS trackers.
Supporters say the measure would end confusion for prosecutors about when to approve warrantless tracking and for phone companies about when they should hand over customer tracking data to police.
In at least two cases, Virginia police have made arrests based in part on data from warrantless GPS devices planted on suspects’ vehicles. David Foltz, convicted in Arlington of abduction with intent to defile, was caught red-handed after police decided to follow him based on information from a GPS device police attached to his truck.
Now serving a life sentence, and with his appeal twice rejected at the Court of Appeals, Foltz has asked the Supreme Court of Virginia to hear his argument that his arrest was the result of illegal police snooping.
A Bedford man, meanwhile, faces burglary charges in two localities based in part on a GPS tracking device police placed on his car while it was parked on the street. Judges in both Salem and Franklin County rejected arguments from Keith Lamonte Hill that police violated the Fourth Amendment by using satellite tracking to follow his travels.
“The Court finds that the placement of the GPS is neither a search nor seizure,” wrote Franklin County Circuit Judge William N. Alexander II in an order denying Hill’s suppression motion. (VLW 011-08-113).
Among other factors, the judge noted the suspect’s vehicle was parked on a public street; officers did not have to enter the vehicle to place the tracking device; and, Alexander found, officers could have collected the same evidence by simply maintaining surveillance of the vehicle.
“I just think it is a total invasion of our privacy,” argued Carolyn H. Furrow. The Rocky Mount lawyer represented Hill at the suppression hearing. “Our daily travels are the essence of our life and our privacy,” she said.
Furrow said a warrant requirement would pose little hardship for police. “It would have been no harm for the police to get a warrant,” she said. “They had plenty of time to it.”
Law enforcement representatives and prosecutors dismiss the suggestion that a GPS tracker is inherently intrusive. “It almost by definition gathers information about public activities, as opposed to putting a wire in someone’s bedroom or something like that,” said Robert L. Bushnell, the commonwealth’s attorney in Henry County.
“This kind of technology used by police has the potential to do a great deal of good,” said Dana G. Schrad, executive director of the Virginia Association of Chiefs of Police. “It does help solve crimes.”
With or without a warrant requirement, Fourth Amendment search and seizure issues will continue to arise in GPS tracking cases, said R. Frances O’Brien. The Arlington County assistant commonwealth’s attorney won a circuit court ruling approving warrantless GPS-based evidence in the Foltz case. She has since spoken about the legal implications of the new technology to a gathering of Virginia prosecutors.
“It doesn’t change the basics of what police have been doing for years – determining whether a warrant is needed or not,” O’Brien said.
There has yet to be a case of police using GPS to trample the privacy rights of an innocent Virginia citizen, O’Brien noted. Foltz – the man she prosecuted – was an ex-offender whose past crimes matched a series of assaults on women in Arlington County.
“The Foltz case, I think, was not the poster child for the police running wild.”
While proponents of the GPS warrant requirement claim it would end confusion about standards for satellite tracking, O’Brien said the factual issues still would have to be decided by the U.S. Supreme Court.
Virginia private investigators are divided on the legislation, reports Ron McKown, executive director of the Private Investigators Association of Virginia. Accordingly, he said, the organization has taken no stand on the bill.
“We’ll just go with what the law says,” McKown said. If private use of GPS tracking is outlawed, he said, PIs will just return to the familiar “shoe leather” method of keeping track of suspected wrongdoers.
On the national level, a group called Investigative and Security Professionals for Legislative Action hopes to keep GPS among the tools available for PIs, at least in some cases. A recent update to members acknowledges the difficulties of opposing HR 2168 and similar bills, but the group notes it has had success on similar bills in state legislatures.
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