Bernie Giusto: The Next Generation of Search Warrants

 The thing about drug dealers is that sometimes they are on the right side of the law. Just ask Antoine Jones, a Washington DC nightclub owner and three-time convicted dealer, who was serving a life sentence for drug trafficking. 

On Monday the US Supreme Court sided with Jones and his legal team who argued that the police had violated Jones right to personal privacy under the Fourth Amendment.  

In what may be the most important 4th Amendment ruling on from the high court in two decades or more, the Supremes ruled that the GPS device placed on his vehicle to track his movements and which served as a key part of the evidence presented against Jones, should have had come pre-packaged with a search warrant. With that decision, the unanimous court ruling sent several clear warnings to police and prosecutors that the next generation of limits on police authority has arrived. 

This may be the most potent ruling by the court in terms of law enforcement investigative powers dealing with the fourth amendment and personal privacy. But going forward it is potentially twice as powerful. Not since Miranda will supreme court decision have police and prosecutors hearing the footsteps of judicial review and seeing the resulting footprints on their work load.

The temptation will be for police and prosecutors who are not forward looking to read the decision narrowly and not listen carefully or think critically.  The court, in expanding the need for police to get a warrant in criminal cases where the use of GPS devices are used in murder or major drug sales or trafficking cases, did not create a insurmountable hill for police and prosecutors to climb. It just means one more affidavit and one more judge's signature. But it will have a serious chilling effect on the common place use of these "bird dog" devices which has exploded onto the scene of police investigation.  

The Jones decision will be labor intensive in this reversal of fortunes. Now instead of the cops and prosecutors relying on the information obtained from bird dogging a suspect or potential suspects with a GPS device in order to get the information to obtain a search warrant to make an arrest or conduct a search, it looks like the investigative road could have the cops back tracking to the old days of Starsky and Hutch where the cops spent all their time physically tracking bad guys and leaving prosecutors guessing as to whether they have the best evidence possible to proceed with a case

The cost of secretly hooking up a suspect or suspects in the new high tech world has become so cheap and the information provided by this technology has been so reliable that in the last decade GPS has literally become an off the shelf investigative tool. Tracking devices now commonly found in serial burglary investigations, potential suspect movements and other less high profile investigation are about to get disconnected. No longer will this investigative tool be viewed as a licensed and off the shelf technology for use at a moment's notice. Prosecutors and for that matter the cops, will be now reconsider running to judges with search warrants to deprive someone of their Fourth Amendment Rights.  And perhaps more significantly why the judge should lend her or his signature to that decision. The weight of the case will become a tipping point for getting a judge involved.  Make no mistake, policing in the high tech era has just shifted in favor of our individual rights but not necessarily though in favor of criminal behavior.  The balance point will be how judges well courts understand the use of technology in law enforcement generally and how often and willing police and prosecutors will be in making or willing to make their case to a judge. 

The Department of Justice argued that the police can use any technology they wish to track criminal suspects as long as that tracking is done in a public place.  It is not clear as to whether they were also arguing that the device could also be attached to a vehicle at any time if the vehicle were in a "public place" at the time. But it really did not matter because the court rejected either or both arguments. The strength of language in the narrowly written majority opinion in the Jones ruling will and should have a more far reaching effect on the world of policing technology and police administration of investigative procedures. The future warning for investigators and prosecutors maybe the more aggressive language of the minority opinion that went further in what should be required in the area of technology and protections guaranteed under the Fourth Amendment.  

In the short term what is facing prosecutors are the prior cases involving GPS technology where convictions or those cases waiting their turn in a courtroom may be appealed, overturned, reversed and remanded and/or set for new trial, or just plain dismissed.  The bad news is that will be the easy part.  Going forward it is clear that the Supremes are sending a much broader message about police investigations and prosecutorial case development using technology as ammunition and our Fourth Amendment rights as the target. The high court is clearly firing a high tech warning shot not aimed at GPS tracking devices and without pin point accuracy but obviously aiming directly at the next generation of police investigations and the use of higher and and ever cheaper technology . Let's just hope the shot is clearly heard by the cops and prosecutors.

GPS is just the opening salvo.  Next defense attorneys have and will bring a myriad of cases targeting the use of investigative information gleaned from the use of cell phones, records retained on cell phones either contained within a individual phone or stored in the cloud, or records from cell phone towers.  And the effects will not end there, not even close.  Currently at lest ten Sheriffs across the country have purchased and are considering using unmanned drone aircraft as part of drug trafficking, border securing, and suspect chasing investigative tools. It seems to this Sheriff that the question I should be asking myself is, what now?  If unmanned GPS devices now require warrants for the information made available to be legitimate evidence in a court of law why would the court think anything different of information obtained via drone technology?  In other words drones may have a place in law enforcement high tech investigations but the the risk is if the cops are not listening and prosectors have their heads too far in the clouds the drugs dealers and other criminal suspects will find the Supreme Court ready to make the next shot really count.   

Bernie Giusto is the former Multnomah County Sheriff, former Gresham Police Chief, former OSP Trooper and has served on the Gresham City Council and Tri Met Board.