Not according to Joseph E. Scott, as he battles to protect our fourth amendment rights in the Tenth District Court of Appeals for the State of Ohio

Joseph E. Scott – Columbus Criminal Defense Attorney

On September 18, 2013, attorney Joseph E. Scott argued an important appellate case in the Tenth District Court of Appeals for the State of Ohio on behalf of the firm’s client, Montie Sullivan. At issue was whether law enforcement officers were allowed to attach a GPS unit to Mr. Sullivan’s car without a warrant and then monitor his movements.

The trial court originally held that the evidence seized as a result of the warrantless GPS monitoring was allowed. Shortly thereafter, on January 23, 2012, the United States Supreme Court held in United States v. Jones, 565 U.S. , 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), that when the government physically occupies private property by installing and monitoring a GPS device on a suspect’s vehicle, the government commits a “search” for purposes of the Fourth Amendment. Based on the United States Supreme Court decision, Mr. Scott asked the court to reconsider Sullivan’s suppression motion. As a result, upon reconsideration, the trial court granted Mr. Sullivan’s motion to suppress the evidence that was obtained as a result of the warrantless GPS monitoring. The State then filed an appeal.

The Basic Facts of the Case

In January 2010, Franklin County law enforcement officers suspected Mr. Sullivan might be involved with numerous home break-ins. Therefore, they attempted to keep visual surveillance on Mr. Sullivan’s vehicle. After three days of surveillance, and without observing any criminal activity, the law enforcement officers decided they would use an electronic GPS surveillance tool.

Therefore, without obtaining a warrant, a deputy installed a GPS device on the rear bumper of Mr. Sullivan’s car.

The Deputy later testified at a suppression hearing that he did not believe he had sufficient evidence for probable cause in order to obtain a search warrant. Based on the GPS device, law enforcement was able to track Mr. Sullivan’s car in “real time.” Eventually, based on information from the GPS tracking, officers arrested Mr. Sullivan and the officers obtained search warrants to search Mr. Sullivan’s vehicle, finding evidence allegedly connected to the home break-ins.

The Appeal

In the appellate briefs, both Mr. Sullivan and the State agree that the government installed a GPS device on Mr. Sullivan’s vehicle without a warrant and that such action constituted a “search” on Mr. Sullivan’s vehicle. Therefore, the initial “search” requirement of the Fourth Amendment is present, so as to trigger constitutional protections—that is, Mr. Sullivan has the right to be free from an “unreasonable” search.

Reasonable Suspicion Does Not Allow a Warrantless Search

In an attempt to justify the search, the State argues that the search was reasonable. The State attempts to create a brand-new exception to the warrant requirement—that is, using a GPS is automatically “reasonable” for Fourth Amendment purposes if based upon “reasonable suspicion”. According to the State, the Court should use a balancing test to determine whether the search is reasonable. However, even if a balancing test is used, the test should not permit a lower standard of “reasonable suspicion” as opposed to probable cause. The State argues that the balancing test should balance the degree to which the GPS device intrudes upon the individual’s privacy with the degree of need to promote legitimate government interests. (citing Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006)).

In applying this balancing test, the State argues that the government minimally intruded upon Mr. Sullivan’s privacy because “installation/use of a GPS device is, at most, only minimally intrusive and rarely yields truly private information . . . .” However, the State significantly undercuts the large privacy interests at stake when the government uses a GPS device to track a person’s every movement. As Justice Alito noted in his Jones concurrence, “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Id. at 964. As such, “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.” Id. at 955 (Sotomayor, J., concurring). “[S]ociety’s expectation has been that law enforcement agents and others would not . . . secretly monitor and catalogue every single movement of an individual’s car for a very long period.” Id. at 964 (Alito, J., concurring judgment only). Thus, persons have significant privacy rights in their private property. See id. at 949–950 (majority opinion) (discussing the right to be free from trespass on one’s private property); id. at 964 (Alito, J., concurring in judgment only). Accordingly, the installation and monitoring of the GPS device was much more than a “minimal intrusion” on Mr. Sullivan’s privacy interests.

On the other side of the balancing test, the only “legitimate government interest” which would permit a reasonable suspicion standard is that it would be more efficient in investigating violent offenses. The State’s brief notes that “the information that the tracking device reveals about the vehicle’s location could also be obtained (albeit less efficiently) by means of visual surveillance.” (Emphasis added.)

The State, thus, acknowledges that long-term tracking could be achieved by previously available techniques other than the installation and monitoring of a GPS device. See Jones at 964 (Alito, J., concurring in judgment only). The Supreme Court has already noted that police efficiency is simply not a proper justification for creating an exception to the warrant or probable cause requirement. Coolidge, 403 U.S. at 481, 91 S.Ct. 2022, 29 L.Ed.2d 564. Consequently, requiring a warrant to install a GPS tracking device would not have a chilling effect on the legitimate governmental interest of investigating crime.

Automobile Exception Does Not Apply When There is No Probable Cause

Next, the State argues that the automobile exception to the warrant requirement should apply in this case. While a search conducted without a warrant is “per se unreasonable—subject only to a few specifically established and well-delineated exceptions,” Katz, 389 U.S. at 357, 88 S.Ct. 507, 19 L.Ed.2d 576, there is an established and well-delineated automobile exception. Under the automobile exception, “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.” Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 938, 135 L.Ed.2d 1031 (1996).

In Mr. Sullivan’s case, the automobile exception does not apply because there was no probable cause that the automobile contained contraband. The officer who attached the GPS device testified that he did not believe there was probable cause to obtain a warrant. Nevertheless, the State attempts to argue that based on an objective standard, there actually was enough probable cause for a search. Usually the State is arguing that a police officer’s belief that there was probable cause was reasonable — now, in an attempt to uphold the search, the State argues that the police officer’s belief that there was NOT probable cause was not reasonable. The facts of the case and common sense do not support the State’s argument.

Good Faith Exception Does Not Apply Because Law Enforcement Officers Did Not Rely on Binding Precedent

Finally, in its last argument, the State contends that even if there was a Fourth Amendment violation, the evidence should not be excluded because the police officers were acting in good faith. The “good faith exception” to the warrant requirement applies where an officer reasonably relies on a later invalidated search warrant or reasonably relies upon then-binding appellate precedent. In this case, the law enforcement officers did not rely on either. First, there was no warrant to rely on; and, second, there was also no binding appellate precedent regarding warrantless GPS installation and monitoring. Therefore, the good faith exception does not apply.

Conclusion; What Will the Appellate Court Decide?

Consequently, despite the State’s arguments, the warrantless GPS installation and monitoring constituted an unreasonable search against Mr. Sullivan and any evidence obtained as a result of the unconstitutional search must be suppressed.

Stay tuned to see if the Appellate Court agrees.