10/25/12 According to attorney Bill Gallagher, the trial judge again denied the motion to suppress in this case, and he plans to appeal again.
10/12/12. Further Update: According to a story in the Cincinnati Herald by Dan Yount, Sudinia Johnson, the defendant in the Ohio case, remains in prison. His attorney William Gallagher questions why this is so in light of the U.S. Supreme Court’s decision in U.S. v. Jones. (see below). A decision is expected in the Johnson case from the trial judge by October 19, 2012.
Update: On March 13 2012, the Supreme Court of Ohio vacated the judgment of the court of appeals in this case, and remanded the case back to the trial court to apply the holding in U.S. v. Jones, 132 S.Ct.945 (2012). Read the post on the Jones decision here.
On October 19 the Supreme Court of Ohio heard oral argument in State v. Johnson, 2011-0033. The issue is whether extended GPS tracking of a suspect’s movements violates the Fourth Amendment and Section 14 Article I of the Ohio Constitution
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.
Read the oral argument preview for the Johnson case here.
Counsel for Johnson insisted that there is a need for judicial oversight from a neutral magistrate in this circumstance, because the potential for privacy invasion with a GPS is so great. Obtaining a warrant is easy and simple in today’s world, and places little or no burden on the state to get one. Privacy is very much implicated here—a GPS can’t differentiate between a public and a private space.
The prosecutor argued that it doesn’t matter if a warrant is easy to get or not, because none is required to track a car on a public road. He stayed on message that the Fourth Amendment simply does not require a warrant when tracking a car on a public road. There is absolutely zero expectation of privacy there. He also argued that in significant ways a GPS is less obtrusive than surveillance—it may tell you where someone is going, but not the purpose of the trip or who is accompanying the suspect.
Privacy and warrants were very much on the justices’ mind at argument. What did not seem to be on their minds is the fact that on November 8 the U.S. Supreme Court is hearing United States v. Jones, a case with similar issues. No justice suggested the court wait until that case is decided.
Why not just go and get a warrant?
Justice Pfeifer was combatative with the prosecutor. Why didn’t the police just go and get a warrant? Was it because they just didn’t want to? What would stop this practice from becoming all pervasive—any time the police don’t like someone, they just slap a GPS on the car? How do we know how widespread this practice is if a judge doesn’t inquire into the details? Justice Pfeifer asked the prosecutor if he ever asked the police how often they do this sort of thing.
Justice McGee Brown asked why, with three supposedly reliable confidential informants, the police did not just go and get a warrant.
Isn’t it all about Privacy?
Justice McGee Brown told the prosecutor she saw a slippery slope here. When she got into her car, she said, she didn’t expect to find a GPS hooked onto the bottom of it. That’s an expectation of privacy. Should the court really open the door and allow this practice ? How widespread is it?
Justice Lanzinger picked up on this, commenting that a person in a car has an expectation that their itinerary will not be surreptitiously monitored, and the violation of this expectation is what seems so offensive. Has this all brought us to big brother, she asked?
Justice O’Donnell seemed the most skeptical about the privacy interest advanced by the defense. He asked why this case wasn’t like cases in which police do flyovers over marijuana fields– isn’t it all just in the public view? What normal expectation of privacy is there is driving one’s car down a public highway? A home is one thing, certainly there is an expectation of privacy there, but surely not in where your car goes on a public highway? Is that a constitutionally protected area?
Justice Cupp asked if it would be unconstitutional if the GPS was just used as an aid to visual surveillance.
Chief Justice O’Connor noted that a GPS only reveals a person’s location, not what that person is doing there.
Is there some other way to do this?
Justice O’Donnell wanted to know if there was some other means of surveillance the police could have used which the defense believes would not violate the Fourth Amendment.
Justice Stratton asked whether, if police have a reasonable suspicion, but not probable cause, can they now stake out and follow someone 24/7?
Chief Justice O’Connor wanted to know if the state was arguing the GPS was more intrusive, or less, than regular surveillance. Was someone monitoring from a laptop where the van was going? When did some human involvement kick in ?
Is there greater protection under the Ohio Constitution?
A very lively debate ensued on this one. Justice Lanzinger brought up this new judicial federalism question, but it was Justice Pfeifer who really got riled up. The prosecutor argued that the Supreme Court of Ohio had ruled that generally cases brought under the state constitution should be harmonized with federal fourth amendment cases, and the only time the Court had provided greater protections had been in misdemeanor cases, not felony cases. In response to a question from Justice Cupp about whether the rule should be that in order to have unlimited tracking there must be reasonable factual suspicion, the prosecutor answered that would be fine if the legislature wanted to write such a rule. Justice Pfeifer jumped all over this. Restraints aren’t up to the legislature, he retorted, that is the Court’s role. Historically the courts have decided when there should be greater protections for individual liberties, not the legislature. A bit later Justice Stratton challenged him on that. If the court found this was no different than visual surveillance, she noted, there was nothing to stop the defendant from going to the legislature to seek greater protection. Hadn’t the legislature just overruled the court on whether a police officer’s visual surveillance was enough to cite a driver for speeding? (see, Barberton v. Jenney)
The Wild Card—State v. Smith
In State v. Smith, a split decision written by Justice Lanzinger, the Court held that a warrant was required to search the data in a cellphone. She asked the prosecutor whether that wasn’t an example of recent authority in which the Court found greater protection its own constitution. The prosecutor responded that there was no federal precedent on that point yet.
How it Looks From the Bleachers
This looks like a split decision to me. A majority may well find no expectation of privacy when a GPS is attached to a car traveling on a public road, and that no warrant was required here. Justices Pfeifer and McGee Brown, and possibly Lanzinger, seem ready to require a warrant here because of the significant degree of intrusion.
I asked student contributor Greg Kendall how he saw this one. Here is his take.
1. The Justices seem skeptical about an expectation of privacy in a person’s movements and didn’t seem convinced by counsel’s argument about how 24/7 GPS surveillance allows police to build a “profile” on a person.
2. Counsel for petitioner argues that the burdens and procedures for procuring a warrant are so low that the police should have just gotten a warrant. This makes it sound like even if the Court finds for the petitioner, it wouldn’t change much–it’s a difference between showing nothing before getting to use a GPS, and showing very little evidence and getting to use a GPS anyway.
3. Counsel for respondent’s arguments regarding separation of powers and judicial oversight of the executive was pretty good.
4. Counsel for respondent definitely got trapped by Justice McGee Brown’s question about whether he would have been able to meet the probable cause threshold and obtain a warrant.