Friday, December 31, 2010

Judge warns of ‘Orwellian state’ in warrantless GPS tracking case

Daniel Tencer and Stephen C. Webster

Police in Delaware may soon be unable to use global positioning systems (GPS) to keep tabs on a suspect unless they have a court-signed warrant, thanks to a recent ruling by a superior court judge who cited famed author George Orwell in her decision. 

In striking down evidence obtained through warrantless GPS tracking, Delaware Judge Jan R. Jurden wrote that "an Orwellian state is now technologically feasible," adding that "without adequate judicial preservation of privacy, there is nothing to protect our citizens from being tracked 24/7." 

The ruling goes against a federal appeals court's decision last summer that allowed warrantless tracking by GPS.
Jurden was ruling on the case of Michael D. Holden, who police say was pulled over with 10 lbs. of marijuana in his car last February. Holden was allegedly named by a DEA task force informant in 2009, and in early 2010, without obtaining a warrant, police placed a GPS device on his car, allowing them to follow him whenever he used the vehicle.

Police investigators say they had the GPS on Holden's car for 20 days when they saw what they believed to be a cash-for-drugs exchange involving Holden in New Jersey. Police stopped him on a bridge crossing into Delaware and arrested him.

Unless there are special circumstances, "the warrantless placement of a GPS device to track a suspect 24 hours a day constitutes an unlawful search," Judge Jurden wrote in her ruling (PDF). "In this case, there was insufficient probable cause independent of the GPS tracking to stop Holden’s vehicle where and when it was stopped, and therefore, the evidence seized from Holden’s vehicle must be suppressed."

Prosecutors were forced to drop marijuana trafficking charges as a result.

Jurden argued that the same legal principle that allows officers to tail a suspect in traffic, without a warrant, doesn't apply to GPS because the devices reveal far more about a person under surveillance than physical surveillance could -- and more than police need.

"Prolonged GPS surveillance provides more information than one reasonably expects to 'expose to the public,'" she wrote. "The whole of one’s movement over a prolonged period of time tells a vastly different story than movement over a day as may be completed by manned surveillance."

She added, "It takes little to imagine what constant and prolonged surveillance could expose about someone’s life even if they are not participating in any criminal activity."

Wesley Oliver, an associate law professor at Widener University, told the Wilmington News Journal that the ruling falls in line with judicial opinions in New York, Massachusetts and elsewhere.

"Without such restrictions, Oliver said, an incumbent candidate for sheriff could track an opponent with a GPS device -- searching for visits to a strip club, mistress' house or clinic -- and be perfectly within the law," the paper reported.

But the issue is far from settled. The US Ninth Circuit Court of Appeals issued a ruling las
 t August effectively allowing the use of GPS tracking without a warrant. Law enforcement agencies in the nine western US states covered by the Ninth Circuit now have the ability to use GPS without a warrant.

A dissenting judge in that case also referred to Orwell in his dissenting opinion.

"1984 may have come a bit later than predicted, but it's here at last," Chief Judge Alex Kozinski wrote.

That ruling is expected to be appealed to the Supreme Court.

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