Will a case in Delaware set limits on how far police can go when using electronic surveillance?

A criminal case making its way to the Delaware Supreme Court could help define personal privacy and set limits on how far police can go when using electronic surveillance in Delaware and perhaps across the United States.

The American Civil Liberties Union this week filed a brief in Delaware v. Michael D. Holden, urging the state justices to uphold a lower court ruling that essentially bars police from using Global Positioning Systems (GPS) to track people without a court-approved warrant.

Holden, 28, of Newark, was suspected of dealing drugs and was electronically tracked for more than 20 days by police without a warrant, ending with his arrest after police discovered 10 pounds of marijuana in his vehicle after he visited a suspected drug distribution house. The judge in the case tossed out the drug evidence, ruling that the lengthy warrantless tracking of Holden amounted to an illegal search.

In its brief, the ACLU notes the U.S. Supreme Court has not yet ruled on this issue and legal experts agreed the state case could be part of a growing national debate over the reach of technology versus the boundaries of privacy.

The case will likely turn on the concept of the "reasonable expectation of privacy," said defense attorney and former prosecutor Peter N. Letang.

With GPS devices in nearly all cellphones and in many cars and with the popularity of online applications with which users broadcast their locations to others in real time, Letang and others said the definition of what is private and what is public may have shifted. They also believe the permission that consumers have to give companies such as Apple and Google to use their equipment makes GPS tracking more common and potentially available to police if they subpoena those companies.

Advanced technology greatly enhances a police officer's ability to fight crime but presents challenging constitutional issues. One particularly helpful new tool is the global positioning system (GPS) tracking device, a computerized unit that police can attach to a suspect's vehicle and then monitor to track the vehicle's movements. The GPS device is similar to a traditional tracking device sometimes called a "bird dog," but GPS provides more precise and detailed information. For example, the GPS unit can be programmed to transmit an electronic signal via a cell tower to a base unit approximately every five seconds. The officer monitoring it can determine the latitude and longitude of the vehicle, tell how long the vehicle remains at its location, view a computer screen containing a map of the area where the vehicle is located, and see where the vehicle is headed—all without leaving police headquarters.

The Big Brother aspect of this technology calls into question its legality. Because this technology is new, there is little case law on it. But two cases in the western United States have affirmed the warrantless use of a GPS tracking device under federal constitutional law based on U.S. Supreme Court precedent concerning bird dog tracking.

In United States v. Knotts the Supreme Court considered in 1983 whether a court order is necessary for the installation and monitoring of a bird dog tracking device in a public location.

In 1999 the U.S. Court of Appeals for the Ninth Circuit addressed the question in United States v. McIver.3 Because McIver was suspected of cultivating marijuana plants, law enforcement agents placed both a bird dog and a GPS tracking device on his vehicle.


Links:
http://beta.courierpostonline.com/article/BL/20110604/NEWS01/106040341/1015/Rollins--double-blows-game-open/Police-use-of-tracking-devices-at-issue

http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=179&issue_id=12004