In what may set a Delaware precedent, a Superior Court judge has gutted a criminal case against a Newark man who was pulled over with 10 pounds of marijuana because police used a GPS tracking device without a warrant to follow him for nearly a month.
In court papers, Deputy Attorney General Brian Robertson argued that information from a global positioning device that police attached to the car of Michael D. Holden was only a part of a larger “multifaceted” case against the 28-year-old by officers with the interagency Drug Enforcement Administration Task Force.
On the day in question, Feb. 24, police saw what they believed to be an exchange of cash for drugs in New Jersey — though they did not see cash or drugs, only bags. They called the Delaware River and Bay Authority Police to stop Holden’s car as it crossed the Delaware Memorial Bridge. During that traffic stop, police recovered a duffel bag with 10 pounds of marijuana inside.
But defense attorney John P. Deckers countered that the 20-day-long use of a GPS device to track his client — weeks before police got a tip about the Feb. 24 exchange — amounted to an unreasonable search under the state constitution and violated his client’s privacy without probable cause.
While police have long been allowed — without a warrant — to follow suspects as they drive from place to place, Superior Court Judge Jan R. Jurden wrote earlier this month that using a GPS device is different.
“The advance of technology will continue ad infinitum,” she wrote. “An Orwellian state is now technologically feasible. Without adequate judicial preservation of privacy, there is nothing to protect our citizens from being tracked 24/7.”
Though police can follow a suspect in public, there are limits to how long officers can keep up the tail, whereas a GPS device never sleeps and “provides more information than one reasonably expects to be ‘exposed to the public,’ ” the judge wrote.
To get the same level of detail using only old-fashioned police surveillance techniques would require “millions of additional police officers and cameras on every street lamp,” Jurden wrote. And if no warrant is required for such surveillance, “any individual could be tracked indefinitely without suspicion of any crime. … No one should be subject to such scrutiny by police without probable cause,” she concluded.
And with that, Jurden ruled that the evidence of the duffel bag must be suppressed, forcing prosecutors to drop marijuana trafficking and possession charges against Holden that carried a minimum punishment of two years in prison and up to 20 years behind bars if he was convicted.
The judge made clear she was not prohibiting law enforcement from using GPS tracking, she was just requiring “a warrant be justified and issued” before the devices are used.
“This is a case of first impression in Delaware,” said Deckers. “I think the ruling reinforces our general right to privacy, and specifically, signals that Delawareans have a legitimate expectation that their every movement by automobile will not be remotely tracked and recorded by private parties or by law enforcement.”
There is a split among courts across the country looking at this same issue, according to experts, and Robertson said the Attorney General’s Office is considering appealing the ruling to the Delaware Supreme Court.
Widener University associate professor Wesley Oliver said Jurden’s ruling puts Delaware in line with many other state courts — including New York, Oregon and Massachusetts — that have found warrantless 24/7 tracking by police to be an infringement.
Without modern technology, Oliver said, it would be impossible for police to get the same level of detail about a suspect’s life and travels.
“So the opinion makes a lot of sense from a practical perspective,” he said, comparing it to wiretapping limits that were adopted in the 1930s after being unregulated for decades.
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.
But professor Laurie Levenson of the Loyola Law School in Los Angeles expressed surprise at Jurden’s ruling, citing federal court decisions that have sided with police on the issue.
Levenson said the federal courts have followed the logic that if it is permissible for human surveillance without a warrant, it is permissible for GPS surveillance. “There is a different expectation of privacy in a car,” she said.
“If you want privacy,” Levenson said, according to federal rulings, “Go in your house and pull down the shades.”
Levenson said the U.S. Supreme Court also seems pointed in that direction, but she said Jurden’s ruling is not likely to end up there because Jurden — like other state court judges — ruled on protections contained in the state constitution.
And as Jurden wrote, “The Delaware Constitution affords greater protection than the United States Constitution” in this area.
Source: Delaware Online
