Update: On March 13 2012, the Supreme Court of Ohio vacated the judgment of the court of appeals in this case, and remanded it back to the trial court to apply the holding in U.S. v. Jones, 132 S.Ct.945 (2012). The last paragraph of this post questioned why the Ohio Supreme Court was hearing this case at all in light of the Jones case.
Read the post on the Jones decision here.
On October 19, the Supreme Court of Ohio will hear oral arguments in the case of State v. Johnson, 2011-0033. The issue in this case is whether police may surreptitiously place a GPS tracking device on a person’s car to track that person’s movements without obtaining a warrant.
In 2008, the Butler County Sheriff’s Office received a tip from multiple informants that Sudinia Johnson was trafficking in cocaine, and that Johnson was expecting to acquire a new shipment for distribution in the future. Agents went to Johnson’s house and attached a GPS device to Johnson’s van. The device was smaller than a pager and attached magnetically to the undercarriage of the van. The agents tracked the GPS intermittently. Within a week, the GPS showed that Johnson’s van was located in a shopping center near Chicago. Police worked with agents in Chicago, who observed Johnson’s rendezvous with a customer. They then followed Johnson and the customer (in a separate car) back to Ohio. Ohio police intercepted Johnson and the customer. A search of Johnson’s car turned up no cocaine, but the search of the customer’s car turned up seven kilos.
Johnson was indicted for trafficking and possession of cocaine. The trial court denied Johnson’s motion to suppress evidence, ruling that the police did not need a warrant before placing the tracking device on the car. The Twelfth District Court of Appeals held that Johnson had no reasonable expectation of privacy in the undercarriage of his van, which was parked on a public street when the officers installed the device. Additionally, the court found that Johnson had no reasonable expectation of privacy in his travel on public roads.
The court’s reasoning was based in part on United States v. Knotts (1983), 460 U.S. 276, where the U.S. Supreme Court upheld the warrantless use of a beeper device on a drum of chloroform to track the movements of a suspected drug manufacture. In addition, the Twelfth District distinguished Kyllo v. United States (2001), 533 U.S. 27 (holding unconstitutional the warrantless search of the interior of a home with an exterior thermal imaging device to detect the growth of marijuana plants by measuring the amount of heat given off inside the home, something which was otherwise unknowable without a physical intrusion), because Johnson made no attempt to conceal his activities or manifest an expectation of privacy. In addition, because GPS devices are in general public use, and because the same information about Johnson’s whereabouts could have been obtained through a visual surveillance, Kyllo did not prohibit the use of the GPS device.
In Johnson’s merit brief, he argues that (1) GPS technology is a massively powerful tool that provides law enforcement with far more information than would be available through simple visual surveillance and (2) that the installation of a GPS tracking device on a car to track a person’s “complete and uninterrupted pattern of movements” is a search within the meaning of the 4th Amendment.
In addition to his extensive arguments based on federal constitutional law, Johnson makes a strong new judicial federalism argument. He urges the Supreme Court of Ohio to afford Ohio defendants greater protection under Section 14 Article I of the Ohio Constitution than the federal Constitution provides. He argues that other states have chosen to outlaw the warrantless use of GPS tracking, and Ohio should follow suit.
Johnson also argues that in State v. Smith, in a case of first impression the Ohio Supreme Court held that the police needed a warrant to search the data in a cell phone.
In response, the state argues that a GPS is not as qualitatively different from visual surveillance as Johnson suggests. GPS provides only geographical coordinates, whereas an eyewitness observation of a person’s activities reveals far more information, such as the occupants and contents of a car. The state suggests that a GPS is no different than police “tailing” a vehicle driving on public roads. Even if GPS is really as powerful as Johnson claims, the state argues that Johnson had no expectation of privacy in his vehicle’s location while he drove it and parked it on public roads and in public areas.
It is curious that the Supreme Court of Ohio is hearing this case now at all. The U.S. Supreme Court is set to hear a similar case, United States v. Jones, on November 8, on appeal from the D.C. Circuit’s decision finding that warrantless use of GPS tracking devices in this manner violates the 4th Amendment. The Ohio high court is obliged to follow any U.S. Supreme Court mandate on federal constitutional law. And if, under principles of the new judicial federalism, the Ohio high court decides to provide greater protection under the Ohio Constitution here than federal law requires, the Ohio Supreme Court must first know what the federal constitutional floor mandates before requiring more under the analogous state constitutional provision.
Student Contributor: Greg Kendall