GPS Tracking Devices and Privacy Rights.

           I write today about the next twist in motions to suppress and GPS tracking devices.  You may recall the US Supreme Court case of US. v Jones, in which the Supreme Court held that regardless of the Wire Tap Act and the Federal Electronic Communications Act (which deal with cellular telephone datand surveillance tactics), warrantless placing a tracking devices on a car for the purposes of tracking that car constituted a trespass for which all evidence illegally seized therefore was to be suppressed.

Pennsylvania Superior Court has now had the opportunity to address the Jones decision in the context of the Pennsylvania’s Constitution.  In the case of Commonwealth v. Arthur, 2013 Pa Super 28; 62 A.3d 424; 2013 Pa. Super. Lexis 72 (February 20, 2013), the court reversed a Montgomery County trial court that suppressed evidence seized as a result of a tracking device.  Superior Court focused on the expectation of privacy of the passenger who did not possess an ownership interest in the automobile.  Absent any ownership interest, there was no expectation of privacy.  This specific holding is contrary to many federal cases stating that passengers in an automobile do, in fact, have an expectation of privacy.  That case is US. vs. Mosely.

 Superior court, through Judge Platt (who by the way was a wonderful trial court judge sitting in Allentown) then analyzed the facts of the case and the GPS tracking device issue in accordance with Pennsylvania’s Wire Tap Act and then separately whether the warrant was simply supported by probable case.  See articles on my web site that I wrote for Legal Intelligencer and my blogs discussing US v. Jones, Pennsylvania’s new Wire Tap Act as of 2013, and the probable cause standard in many drug and automobile stop cases.

     Let me remind you what the issues are in any car stop search case.  Specifically, a defendant must show that he or she has a standing to claim a legitimate expectation of privacy in the area searched which has been infringed upon.  Every defendant charged with a possessory offense has automatic standing to challenge a search if they had a privacy interest in the area searched.  This proof is met when the individual, by his conduct, exhibits an actual(subjective)expectation of privacy and that the subjective expectation is one that society is prepared to recognize as reasonable. In the context of car searches, Superior Court has now followed many federal courts in interpreting Jones to conclude “Jones did not create any new privacy right that would give[appellate]standing to contest the searches at issue. Where the appellant did not own, drive, or occupy the vehicle at issue, he failed to demonstrate any legitimate expectation of privacy in the vehicle, and thus lacked standing to contest the use of the GPS device.

 However, Author’s counsel failed, as do many, to provide any evidence that Author had permission to operate or be a passenger in the car from the rightful owner.  If a Defendant established consent to operate or occupy the automobile, under PA law, they have standing.   This proof satisfies defendant's burden at a suppression hearing to prove that they had a reasonable expectation of privacy in the vehicle.

Once a defendant has standing to contest the search, the issue becomes, if the police complied with the specific procedural requirements of the Wire Tap Act (which is real easy) and then did they provide enough probable cause to the court for the issuance of the warrant.  That burden of proof is: “The task of the magistrate acting as the issuing authority is to make a "practical, commonsense assessment" of whether, "given all the circumstances set forth in the affidavit,"a "fair probability" exists that contraband or evidence of a crime will be found" in a particular place."A search warrant is defective if the issuing authority has not been supplied with the necessary information. The chronology established by the affidavit of probable cause must be evaluated according to a "common sense" determination.”  

 Call me to discuss your GPS search warrant case.

1 Comment

I am a Police Chief in Bradford County Pa., A question ask of me is as follows. Can a township secretary pay to have a gps unit placed upon a township vehicle with his own money without being approved by the elected supervisors knowledge and without any notice too employee;s or policies or procedures. My answer was no. However this is so new I think the courts are going to look at each case. However This is not in my Borough and I am looking for any information on this subject I can Find. I have also told husbands and wifes no to tracking units gps as well and to seek legal counsel. I cam be reached at [email protected] or 1-607-725-0799 thank you

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