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TMCNet: Case challenges police use of GPS [Standard-Examiner, Ogden, Utah]

[September 04, 2010]

Case challenges police use of GPS [Standard-Examiner, Ogden, Utah]

(Standard-Examiner (Ogden, UT) Via Acquire Media NewsEdge) Sept. 04--OGDEN -- Another Fourth Amendment challenge to GPS tracking by police is under way in 2nd District Court.

Dustin Kay's lawyer, Elizabeth Hunt, is arguing that police violated his constitutional protections against unlawful search and seizure guaranteed by the Fourth Amendment.

The defense argues that a GPS tracker used on Kay's vehicle for six months amounted to a search, requiring a warrant, not just a simple authorization from a judge.

The authorization, much less involved than a warrant, required by Utah law only needs to indicate a GPS device is being used for a criminal investigation. The judge's authorization is only needed if the vehicle is on private property.

GPS tracking is treated differently from state to state. Some don't even require the authorization, while others mandate a warrant. The issue has yet to make it to the U.S. Supreme Court.

But in Kay's case, the authorization wasn't obtained, the tracker placed on Kay's vehicle when it was parked with the rear end extending into the public area of a sidewalk.

Hunt argues that the GPS tracker was crucial to officers locating Kay driving the vehicle, after which they pulled him over for a traffic violation.

His admission then that he used marijuana aided in obtaining a warrant to search his home, which yielded enough evidence for drug charges.

The Weber County Attorney's Office argues that it's a stretch to say any evidence in the case was derived from the use of GPS, making the GPS issues moot.

Hunt is challenging the traffic stop in a suppression motion, as well as arguing the GPS issues, which will be aired in a Sept. 15 hearing before Judge Michael DiReda.

"Given the dramatic technological developments that have occurred (with GPS), the federal courts are split regarding whether governmental use of a GPS device constitutes a search, or at least requires proof of a reasonable suspicion," Hunt writes.


She cites some language from case law on the potential of GPS that would imply the need for a warrant: "One need only consider what the police may learn, practically effortlessly, from planting a single device.

"The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit's batteries." Coincidentally, it was DiReda who refereed the last GPS debate in 2nd District Court.

DiReda rejected similar arguments in the case of a GPS tracker that led wildlife officers to a local bobcat trapper's illegally maintained traps in three counties over several months. Arguments and motions went on for two years.

In July, Jared Beal was sentenced to 20 days in jail on his guilty pleas to poaching.

His attorney, Brenda Beaton, was prepared to press GPS Fourth Amendment concerns to the Utah Supreme Court, but Beal opted instead to put the case behind him.

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