The Crime Beat: Warrantless GPS and Arrest of Local Icon
The The Indiana Law Blog passes on the news from the Evansville Courier Press that a Warrick County judge has issued an Order Granting Motion to Suppress, keeping out evidence connecting a man to a series of burglaries in the Evansville area because police used a GPS tracking device to follow the man’s movements, gathering the evidence needed to bring charges against him. The judge ruled that, as the police did not have a warrant to install the device on the man’s car, they needed at least reasonable suspicion that he was engaged in criminal activity to lawfully install the device, and they did not have it.
I have been watching this case out of the corner of my eye as it stands to make new law in the search and seizure arena, at least as far as Indiana is concerned. The key in this case is that the challenge is not based on the Fourth Amendment (for which the feds are the final arbiters of right and wrong), but on Indiana’s separate constitutional provision, Article 1, Section 11, which simply says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
Note that the Indiana provision is the same as the Fourth Amendment, but way back in the early 90’s, Justice Randall Shepard, head of the Indiana Supreme Court, took the position that the Courts of Indiana should venture forth and interpret Indiana’s constitutional provisions independently, and not assume that they have the same meaning as the same or similar provision in the federal constitution. The Court of Appeals, taking the bait, almost immediately rules that, while seizing people’s trash without a warrant is legal under the Fourth Amendment, Indiana will have police rummaging through our trash without a court order. Then the Indiana Supremes reversed them (Moran v. State, 644 N.E.2d 536, 539 (Ind. 1994)), and we all went back to thinking that there was not much difference in the constitutional standards.
The GPS case could present another opportunity for Indiana to strengthen its protection of its citizens from government intrusion. At least one federal court has ruled that a warrant is not needed to affix GPS on vehicles. The argument is that the GPS secretly attached to a vehicle will not show the police anything they could not discern simply by following the suspect around, so there is no harm, no invasion into the private realms of the suspect. Not everyone agrees, though, Washington State’s supreme court imposed a warrant requirement (link to blog citing case, now offline). The Washington court based its decision on the state constitution, like the Indiana trial court.
I am much less concerned with the specific issue of GPS tracking by police than I am with the great benefit to citizens where state court embrace their own constitutions to provide protections for civil liberties, as opposed to permitting the standard set by the federal court rule the land. The federal government seems to be getting weaker on civil liberty issues as of late.
In other news, Kicks 96 is reporting that local basketball legend Woody Austin, who lead Richmond to the final in 1987, has finally been arrested on felony non-support charges which were filed way back in November of 2003.
March 9th, 2006 18:16
I enjoy reading your thoughts on this blog. You think through issues well. I would like your thoughts on the funeral protestors as cited today in Indystar.com. The attorney who is the son of the pastor of the fundamentalist church thinks the Constituion is being shredded by state legislatures limiting their right to protest. As an advocate of civil rights, I would like to hear your response.
March 12th, 2006 05:32
[...] Legislators need punching bags. No one wants to go back to their constituents without being able to boast about how tough they were on crime during the session. The trouble is, after so many years, the criminal code is bursting at the seems with offenses. The volume of things that you cannot do is beyond the capacity of most humans to retain. Drunk drivers have been a favorite for a while, but these laws cast a very big net, snaring regular folks on their way home from dinner, and if the drunk driving laws get much tougher, Indiana’s restaurant trade will start feeling the pinch (most non-fast food places rely on alcohol sales for close to 40% of their take). Unlike drunk drivers, who basically provide a living wage to those working in the bar and food industry, sex offenders have no supporters. Only the most hardened civil libertarian will even blink when a new provision comes down against a sex offender. The governor just signed Senate Bill 246 which is a basket of all kinds of hurt for sex offenders: Gov. Mitch Daniels signed a bill into law Thursday that would prohibit certain sex offenders from living with 1,000 feet of a school or public park, or within a mile of their victim’s residence. The bill also would prohibit so-called “sexually violent predators” from working or volunteering at schools, parks or youth centers. Sexually violent predators are defined as people convicted of certain sex crimes who suffer from mental abnormalities or personality disorders that make them likely to repeat such crimes.Link (Fort Wayne News Sentinel) The real meat of the legislation permits the state to control the conduct of certain sex offenders, including electronic monitoring, for longer periods of time - even for the remainder of their life - once the get out of jail. The new provision creates a brand new crime. Unlike traditional crimes like Murder, Usury, Rape, Robbery, etc., the names of new crimes never have quite the same ring. This one is “Unlawful Employment Near Children by a Sexual Predator, a Class D Felony.” The list of new crimes is annual entertainment. Reading the criminal code in Indiana is like reading snap shots from the headlines of the Indianapolis Star over the years. What I mean is that many provisions are placed in the law only because some big event made the papers around the state when the legislature just happened to be in session. A (well placed) commenter to a prior post asked my view of the new provision aimed to curb protests at funerals. This law is classic legislation by headlines. A group makes loud announcements that it will protest at the funeral of a private who died in combat. The protest is to bring out the group’s message that God is killing Americans in Iraq to punish America for tolerating gays. The announcement worked as the group got a ton of free publicity, but the public outcry created by the press got the attention of the legislature, where plans were drawn up to prohibit future funeral protests. I understand the outcry. (prior post). It is shockingly inappropriate to use the moment of someone’s death to promote your political agenda, no matter how important. Funerals, like most other ceremonies in our culture, are guided by customs and mores: There are expectations for conduct and communication that we learn from those who went before us, and that we try to pass on to those that follow. We judge each other by our knowledge of appropriate social conventions and our willingness to abide by them. When I read about the group’s planned protest, I made quick and firm conclusions about the leaders and members of that group. I will consider them extremist wackos, and question any idea that comes from them on that basis alone. I think that is enough. I do not think there needs to be a law to address every single breach of decorum. I think we as a society need the teeth of a criminal code, but only for a limited set of traditional crimes. I think we also need to maintain moral standards for conduct in society, expectations for decent behavior, that are not enforced by the government. Unfortunately, we have come to believe that was is illegal is “bad” and conversely, what is not illegal must be “good.” I think that this is what drives us to want to criminalize every perceived wrong. This drive pushes the government further and further into our lives. Now we want them monitoring our funerals? So no, I do not think Indiana needs an anti-protest provision in place. But having said all that, I think the place the legislature ended up (making the existing crime of disorderly conduct a felony within 500 feet of a funeral/burial link) is an okay resolution. I mean, it is better than some type of attempt to ban, outright, public protests at funerals which would involve all kinds of free speech issues. As it is, disorderly conduct is a difficult crime to prove in the context of a protest as the line between what is protected speech and what is illegal conduct can be quite difficult to discern. Somehow, I do not think there will be many prosecutions under this new provision. . . . Just another page in the code book. [...]
December 8th, 2006 17:58
Do you know where i could get my GPS service by cell phones?
my friends download GPS software to cell phones, and their phone become the navigation system. so cool! but, how i can get
one too?!
December 28th, 2006 00:19
Having a gps tracking device installed on a vehicle of your own is easy to do, but when the law does it, they have rules to go by and one of them is a warrant or probable cause, but they should have seeked the warrant in this case.