Laws Need To Keep Pace With Technology

by Diane Dimond on January 30, 2012

In Olden Times This Caught Criminals

Back in the Wild West days law enforcement officers like Wyatt Earp and Bat Masterson had few tools to keep the peace. Guile and a gun on their hip were about all they possessed in the face of trouble.

Today’s officers have many more ways of tracking down and capturing the bad guys. That makes their job much easier than in days of old but also more complicated. A recent ruling by the U.S. Supreme Court may have just made modern day law enforcement more complex.

Bear with me a moment here and I’ll explain why.

First, you should know that the Supreme Court decision I speak of stems from the case of Antoine Jones, a nightclub owner in Washington, D.C. who was suspected of being a part of a massive cocaine selling ring.

Legal GPS Trackers Are Easily Bought by Citizens

In an effort to gather information about Jones police slapped a GPS tracking device on his Jeep. An ingenious move in this technologically advanced day and age, you might think. Indeed, the information about Jones’ travel was used to convict him in what police called, “the largest cocaine seizure in the District’s history.” Jones was sentenced to life in prison in January 2008.

But, the highest court in our land has now ruled that installing that GPS tracker was an unconstitutional action, a violation of every citizen’s Fourth Amendment protection against illegal searches and seizures because no judge signed a warrant ahead of time. Justice Antonin Scalia wrote, “…monitor(ing) the vehicle’s movements constitutes a ‘search,’” much like police entering your home without a warrant to see what they can find.

In addition, the unanimous decision found fault with the D.C. police for leaving the GPS device in place for a full month, monitoring Jones’ trips to church, a gym, a local bar and the headquarters of a known bookie. While I’m guessing D.C. police (and the FBI which was part of the operation) had firm evidence that pointed to Jones’ involvement in the drug operation, you have to admit it is kind of creepy to think law enforcement can secretly follow a citizen around for days on end without first convincing a judge they’ve got probable cause to do so.

Antoine Jones' Case Sparked Scotus Decision

(May I just interject here that countless U.S. citizens are currently using legally purchased, palm sized GPS tracking devices every day to keep watch over their new teenage drivers, elderly parents or suspicious spouses. Citizens can routinely use them but police cannot? Doesn’t make a lot of sense to me. But I digress…)

An appeals court had already overturned Antoine Jones’ drug conviction and the U.S. Supreme Court has now let that decision stand. It’s assumed but not confirmed that prosecutors will try Jones again on drug charges.

But here’s why this decision may wreak havoc in cop-shops across the land. There are nine justices of the U.S. Supreme Court and in writing their thoughts on the Jones case I think they may have opened the door to countless challenges to technologically- based police investigative techniques.

Using an 18th Century Document to Make 21st Century Law

Five of the justices wrote that they are uncomfortable with the government using all sorts of modern technologies. Specifically mentioned was the data officers can gather from cell phone towers or those automatic toll booths to help prove where a suspect was at any given time.

While the Jones case focused on the narrow issue of his Jeep and a GPS system Justice Samuel Alito wrote about other “new devices that permit the monitoring of a person’s movements” that just don’t square with what we traditionally think of as our Fourth Amendment rights to privacy.

Alito worried about the government tapping into “closed –circuit television video monitoring (that) is becoming ubiquitous,” toll collection systems that help police put a suspect at the right place at the right time, and even the apparatus on many new cars that allows roadside assistance companies to pinpoint a drivers exact location or to find the car if it is stolen.

You Send Info Out - Then Its Public?

Justice Sonia Sotomayor correctly pointed out that, “Physical intrusion is now unnecessary to many forms of surveillance.” All a police officer has to do these days is learn to tap into technology that is already in place – like cameras that record the action at banks, intersections, office hallways and many public spaces. “People disclose the phone numbers that they dial or text to their cellular providers; the URL’s that they visit (on the computer) and the e-mail addresses with which they correspond to their Internet service providers,” Sotomayor wrote. And so if a person gives up that information to a third party isn’t it fair game for the cops?

Every police investigator I know would say yes.

But now that justices of the United States Supreme court have raised questions about police using these technological tactics can it be long before defense attorneys figure out ways to cast doubt on entire investigations?

What is Justice?

I can just hear it now, “Your honor, my client’s right to privacy was violated when police learned from a search of his computer that he was buying Oxycontin on line! They had no reason to know he was selling it without that illegal search!”

I’m betting that some of them with clients convicted on technologically based evidence have poured over this latest Supreme Court ruling and are already thinking about ways to appeal their cases. I hope judges everywhere are ready for them.

 

home

 

{ 15 comments… read them below or add one }

Diane Dimond January 30, 2012 at 12:28 am

DD Web Site Reader – An anonymous Prosecutor somewhere in America writes:

“I am very frustrated. It takes so much work to do our cases right and now we have one more ridiculous thing to worry about.

Yup we often use such technologies in our investigations. It absolutely never occurred to us that any reasonable person would declare from on high that doing so was even remotely close to a traditional fourth amendment “problem”. After all, these devises do nothing more than what the agents’ eye-balls do. So now, because of the collective wisdom of 9 insulated people who were connected enough to secure life time appointments to their God-like positions, our agents will now face greater dangers from live surveillance activities, burn otherwise secret investigations, and inevitably result in the Non-Pross of many criminals whose conduct presents an extreme danger to the communities we serve.

Speaking for myself obviously, the Supremes not only got this wrong, the bent over backwards to set aside basic common sense. They are the Mexican Cartels protectors and now, lawyers like me who used to believe in the system, no longer have any respect for these people who coincidentally, also have as a mission the protection of this countries’ citizens.”

Reply

Diane Dimond January 30, 2012 at 12:29 am

ABQ Journal Reader Terry Goldman writes:

“Diane,
While I agree with you that this unanimous Supreme Court
ruling will wreak havoc on police use of technology for
surveillance and hands defense lawyers exceptional
weapons, I must question your statement: “… you have
to admit it is kind of creepy to think law enforcement can
secretly follow a citizen around for days on end without first
convincing a judge they’ve got probable cause to do so.”
I am under the impression that police may “tail” a
suspect without judicial approval. If so, the use of GPS
represents nothing more than a cost effective, more accurate
method. The analogy to intrusion into a domicile is completely
false.
However, even if it is prohibited, this does not obviate use
of public records to determine the location of miscreants. A
public place is public — toll booths, security cameras, cell
phone connections are all public places. If the Supreme Court
fails to recognize this also, the country will rapidly degenerate
into criminal anarchy.”

Reply

Diane Dimond January 30, 2012 at 12:33 am

Mr. Goldman – Your ending point is my point exactly! By including the language questioning public cameras, toll booth information etc I think what the Justices did was to put our modern day criminal justice system at risk! There are so many technology-based crime fighting tools out there and to limit what law enforcement can do seems counter intuitive.
For example, you and I can easily and legally buy a GPS tracking device and use it in anyway we see fit. But police can’t do that? That seems absurd on its face…. Its like saying all citizens can use a cell phone but not the cops.
I believe our 18th century laws MUST be viewed through our 21st century realities! ~ DD

Reply

Diane Dimond January 30, 2012 at 8:45 am

Facebook Friend Rita Orsetto-Meller writes:
“Once again the importance of criminals rights out weigh the importance of the victims rights. IT’S AN OUTRAGE!!!!”

Reply

Diane Dimond January 30, 2012 at 8:45 am

Facebook Friend Matthew Perry writes:

“Did you guys read the ruling? Police can use all of these technologies, but they have to GET A WARRANT. To not do so is a violation of our civil liberties. The review and approval of a judge also provides government power a system of checks and balances that is critical to a free society. The 4th amendment doesn’t need updating, we need to prevent law enforcement from trampling the Constitution.”

Reply

Diane Dimond January 30, 2012 at 8:50 am

Dear Matt,
I will tell you I got a flood of private e-mails from police officials who tell me it is fairly routine to use GPS devices to follow suspects WITHOUT GETTING A WARRANT. Cop shops have routinely viewed the use of GPS’s as a mere “extra set of eyes”, so to speak – a way to follow a suspects movements without putting an officer in danger or “wasting their time.” I don’t view that as a “trampling of the Constitution” as you put it. To me, its just another tool in law enforcement’s tool box to try to keep us all safe.
However, the SCOTUS case I discussed in the column had to do with a Department that employed the GPS device for A WHOLE MONTH. And, as I wrote, – that’s a little creepy to me that Big Brother can tail a citizen for that length of time without proving some probable cause to do so.
There are other of my column readers who agree with you, Matt – Please read on! ~ DD

Reply

Diane Dimond January 30, 2012 at 8:54 am

DD Website Reader Ricky B. Gurley writes:

Mr. Goldman,
And anyone else disagreeing with the U.S. Supreme Court’s decision,

I am sorry, but you have it wrong…. And the U.S. Supreme Court has it right.

YES! “You and I can easily and legally buy a GPS tracking device and use it in anyway we see fit. But police can’t do that? That is how it should be, and how I suspect that it was meant to be; that is why the U.S. Constitution and more specifically our Bill of Rights protects us from GOVERNMENT, not from each other. Excessive government intrusion into our lives is exactly what our U.S. Supreme Court is protecting us from in this ruling. The U.S. Supreme Court is saying “Okay, you think you have a good reason to attach a GPS Receiver to a private citizen’s car? Prove it up in front of a Judge and get a warrant”!

Now you still have some protection from a private citizen invading your privacy like this, under your state laws. Most states have “Stalking Laws”; which brings us to another point. You’d actually say that a private citizen is “stalking” you if that private citizen attached a GPS Receiver to your vehicle and monitored your movements, but if the Police did this without a warrant, they would NOT be “stalking” you? Really?

The courts do not have to reduce or minimize our rights to catch up with technology. Technology should not be used to erode our rights. And technology in and of itself does nothing to erode our rights, it is the way some people in our government would choose to use it that is “damaging” to our rights. Technology SHOULD be used to make Law Enforcement more effective, but there still has to be a system of “checks and balances” in place; and going through the proper channels to get a warrant to use that technology is a part of those “checks and blances”.

It is one thing to view camera equipment recordings that have recorded the movements of people in public, and another thing to intrude into the privacy of one’s effects by attaching a surveillance device to their personally owned vehicle. I know when I go into town that my movements will be recorded by whatever traffic cams and other cameras are in place in town, so I make a conscious choice to let others view my movements in town. But if I don’t know that a GPS Receiver is attached to my vehicle, that choice is then taken away from me. Did you know that if I found a GPS Receiver attached to my car and I take it off and destroy it and it happens to be a GPS Receiver that was put there by Law Enforcement I can be charged with “Destruction of Government Property”? And I don’t even have to know that it was put there by Law Enforcement. Now, at least Law Enforcement will have to have authorization from the courts to attach that GPS Receiver to my car.

Yep, this is one time the U.S. Supreme Court got it right.

Now, onto cell phones! Can they be forensically triaged during a traffic stop without a warrant? Are cell phones now considered to be computers; considering that most cell phones that are being carried by private citizens these days are now smart phones? I want to see the U.S. Supreme Court tackle that one next!”

Reply

Diane Dimond January 30, 2012 at 8:54 am

DD Web Site Reader Jackie Morin writes:

“Pppshaw. It occurs to me that in theory, criminals should forfeit their constitutional rights, the moment they break the laws of the land. Civil liberties & constitutional guarantees were designed for good, law-abiding citizens to enjoy, not for law-breakers to covers their butts while they rape & pillage!”

Reply

Stacy January 30, 2012 at 1:06 pm

I understand why defense attorneys would celebrate this ruling and it is likely they are pouring through tons of cases in the hopes of arguing that guilty verdicts should be overturned. But, I think the court erred particularly where one of the justices you quote talks about modern technology. To draw a sports analogy, many have screamed for the use of instant replay for baseball and other sports. The so-called purists have argued against it. The reason people argue for instant replay is simple: the technology today is more sophisticated and refs, officials, umpires will get the call right. This is exactly, in my opinion, how the court should have looked at this: getting the call right. Like many umpires have done, they blew the call. Diane your work is simply amazing, great stuff!

Reply

CLS January 30, 2012 at 2:53 pm

It surprises me when I actually agree with Chief Justice Scalia, as I believe he is one of the justices who should be impeached and removed from the bench. But the Supreme Court is correct, in this instance. The 4th Amendment exists for a reason, and a search warrant should have been obtained. I realize this is frustrating, as Antoine Jones more than likely should have been arrested, far earlier. However, the Constitution is the Constitution, and our civil rights need to maintain their integrity.

Reply

Nancy Robel January 31, 2012 at 4:07 pm

The court’s decision is really a good one. You still have to do a good solid police investigation, get a warrant based on probable cause and then use that additional technological information to bolster the case, not the other way around. Law enforcement is held to a higher standard, following all of the rules/laws in their investigations. It takes a little longer, but when a case is done correctly, there isn’t a lot of wiggle room for an appeal.

Reply

Diane Dimond January 31, 2012 at 6:31 pm

Good insight, readers – from someone who works within law enforcement. Thanks, Nancy! ~DD

Reply

Diane Dimond January 31, 2012 at 6:31 pm

DD Website Reader HoboHamlet writes:

“And if they do away with the right to bear arms. Only the criminals will be armed. They are slowly reducing our citizen rights. “

Reply

Diane Dimond February 1, 2012 at 8:49 pm

DD Web Site Reader Jacques Padawer writes:

“Yes, it’s fair. In response to all the abuses the cops have indulged in.
We all pay a price for our trespassing!”

Reply

Vic Alvarez February 2, 2012 at 2:05 pm

30 days without a warrant? Really? A little excessive I’d say. I’m sure they had enough to make an arrest after a few days. I’m not trying to play Monday morning quarterback, but we all learn from these mistakes. Thank God these crooks are all so greedy and eventually they get arrested. As much as I hate to admit it…a good court decision.
Vic

Reply

Leave a Comment

Previous post:

Next post: