Law enforcement authorities throughout Maryland were pouring over Monday's Supreme Court decision saying police had to obtain a warrant before putting a GPS tracking device on a vehicle, but concluded it would have little impact in this state.
But some officials differed on whether police have routinely obtained GPS data without a warrant in police agencies in Maryland.
[Read a study by the University of Maryland School of Law's Renee McDonald Hutchins on the
Maryland U.S. AttorneyRod J. Rosensteinthat he believes “both federal and state authorities previously have installed GPS devices on cars of suspected drug dealers without warrants, pursuant to what was the prevailing understanding of the law.”
Rosenstein said that “in most cases where police want to install a tracking device, they can satisfy the probable cause standard and get a warrant if required. The ruling will cause some delay and create more work for police, prosecutors and judges, but in most cases the end result will be the same. Of course, some criminals investigated in the past may go free.”
The court ruled on a narrow issue, saying it was improper for police to attach a GPS device, without a warrant, to a car parked in a private driveway. But other judges, concurring with the unanimous opinion, wished the decision had gone further to address the gathering of data and using location data to hunt someone down. Those justices noted that more issues involving police using GPS devices are likely to come before the court.
Defense attorneys said they see few cases involving GPS,e ven though most police agencies say they routinely use the technology. Brian Thompson, a lawyer who represents criminal defendants in both state and federal courts, said he doesn’t believe the new rules will put too much of a burden on police.
“The police will just get warrants first,” he said. “They don’t just put tracking devices on people randomly.” He said that while the decision was limited, “This could be the first in a long line of cases that finally starts to address digital-aged technology.”
Andrew C. White, a former federal prosecutor in Maryland and now a private defense attorney, said that he believel local law enforcement and the courts will interpret the ruling broadly, closer to what the justices who concurred had wanted.
“Most smart prosecutors and police will want a warrant just in case,” White said. “And if you’ve got a good reason to put a GPS on car, a judge is most likely going to let you do it.”
Gregory M. Shipley, a spokesman for the Maryland State Police, agreed, saying that police will likely err on the side of caution and obtain warrants for tracking cars, whether the devicie goes on the vehicle in a public or private spot.
Shipley said that investigators in his agency “have used GPS monitoring on some occasions, both with and without warrants.” In light of the court’s decision, he said, “Obviously, we will be obtaining warrants in the future.”
Baltimore police declined to comment beyond a spokesman saying “we respect the decision of the court.” City police refused to say whether detectives use GPS tracking devices, saying it would compromise cases.
But the chief judge of Maryland’s District Court system, Ben C. Clyburn, said it’s common practice for police officers to use GPS tracking to follow a suspect, but that they acquire warrants first.
“This is a normal practice… a majority of the jurisdictions” do it, spokeswoman Angelita Plemmer said on Clyburn’s behalf. “They’re already doing it, they’ve been doing it for years. This is not a new practice or procedure for us to adopt.”
Most of the GPS warrants are for drug-related cases, according to Clyburn, and they frequently don’t lead to charges. The District Court doesn’t keep statistics on the number or kinds of warrants sought.
Clyburn said he was unaware of any jurisdictions using GPS investigative techniques without a warrant, but if there are, “of course now they know they need to comply.”
David Rocah, a staff attorney with the Maryland ACLU, said it is his organization’s belief that many police departments in the state, particularly in Baltimore, do not request warrants before attaching the devices or obtaining data from them.
“My guess is that if they thought probable cause was crystal clear, some departments would request a warrant, because there was no risk of denial, and would not ask for a warrant if they thought it might be denied,” Rocah said. “And many probably never asked for warrant to avoid setting precedent that warrant was required. … I’m not aware of any department that as a matter of policy always was to get warrants for this.”
A federal judge in Maryland delved into the issue last year when she rebuffed authoritieswho sought to locate a suspect by obtaining GPS data from his phone, ruling that the police were trying to use technology in an innovative way — “not to collect evidence of a crime, but solely to locate a charged defendant.”
U.S. District Judge Susan K. Gauvey refused to sign a warrant. In a 132-page ruling, she wrote that “this use of location data by law enforcement would appear chillingly and unnecessary in the apprehension of defendants.” In this case, police found the suspect without the help of GPS, before the judge ruled.