GPS Tracking Issue Again Arises in Drug Case

Two years ago, the U.S. Supreme Court issued a unanimous decision with regard to the police use of global satellite positioning devices in the course of drug-related investigations. The details of the decision in U.S. v. Jones are extensive, but the upshot is this: Law enforcement must have a warrant when it places a GPS tracking device on the car of a suspected drug dealer.

Yet, Birmingham drug crime defense lawyers know that the issue isn't entirely dead, and police and prosecutors continue to test the limits of surveillance.

In the recent case of U.S. v. Brown, reviewed by the U.S. Court of Appeals for the Seventh Circuit, the defense referenced the Jones decision, but the alleged crime occurred in 2006 – six years before the Jones decision was rendered. This was the primary reason why the court allowed the conviction – and sentence of life imprisonment – to stand. However, the case also raised questions about how the courts should handle warrantless GPS tracking when consent of the vehicle owner is given, and also whether a person using someone else's car can protest evidence obtained through GPS monitoring of the vehicle. Neither of those questions was directly answered, which means it's likely they'll come up again at some point in a future drug prosecution.

In the Brown case, a jury in Wisconsin convicted the defendant of conspiring to distribute more than five kilograms of cocaine. Given the defendant's extensive prior criminal record, the trial judge sentenced him to life imprisonment.

Upon appeal, the defendant contended that the court should have barred the prosecution from evidence gathered via use of a GPS device that was attached to a vehicle in 2006. The court held in Jones that non-consensual use of GPS on a motor vehicle in the course of a criminal investigation amounted to a warrantless search.

However, in the Brown case, the defendant was not the owner of the vehicle that was being monitored. The vehicle belonged to a police informant, who routinely allowed the defendant to use the vehicle to carry out drug transactions. The informant consented to allowing police to install a GPS device on his vehicle as part of the criminal investigation.

The appellate court decided to bypass a host of questions this case raises for the simple fact that it determined the exclusionary rule to suppress evidence per the Jones ruling would be inappropriate to apply to a case that began six years earlier. Further, precedent in several surrounding circuits had upheld the use of warrantless GPS tracking, so “reasonable officers” would have had no reason to believe they would need probable cause or a warrant in this case.

The defendant argued that there was no specific precedent on this question in the circuit where this case took place. However, the court rejected that argument, saying that it is not uncommon for police and their legal advisors to rely on rulings from nearby circuits.

As such, the court upheld his conviction and sentence.

While we respect the court's ruling, the fact is that police too often go too far in their evidence collection. The justices deciding the Jones case recognized this, which is why they imposed restrictions. It doesn't mean police can't use GPS, but it means they need the approval of a judge first.

It's unfortunate for this defendant that the law is not applicable retroactively, but those in future cases can be assured that they will benefit from the increased protections.

Contact Birmingham Drug Crime Defense Attorney Steven Eversole at (866) 831-5292.