Can authorities track you by GPS without warrant?
A case that questions the constitutionality of whether law enforcement authorities can without a warrant place a Global Positioning System (GPS) tracking device on an individual’s vehicle to determine whether he or she is involved in criminal activities is keeping the son of a prominent Cincinnati woman behind bars as it travels through the Ohio Court System.
According to court records, the Butler County Sheriff’s Office in 2008 received a tip from informants that Sudinia Johnson, of Fairfield, Ohio, was trafficking in cocaine, and that Johnson was expecting to acquire a new shipment for distribution. Acting on this inform- ation, Detective Mike Hackney on Oct. 23, 2008, magnetically attached a pager sized GPS tracker under Johnson’s Chevy van at night while it was parked on the street outside Johnson’s home. Within a week, the GPS showed Johnson’s van was located in a shopping center near Chicago. Police worked with agents in Chicago, who observed Johnson meet with an acquaintance. They followed Johnson and the acquaintance, Otis Kelly - who was driving another car, back to Ohio. Ohio police intercepted Johnson and Kelly, stopping them at different locations. Johnson was stopped after he crossed a white line as he approached an intersection. Police had also stopped Kelly, and, in searching his car, found 17 kilos of cocaine concealed in it.
During the traffic stop, Johnson admitted to police, “You guys got me.” Johnson was indicted for trafficking and possession of cocaine, although no cocaine was found in his car. The trial court denied Johnson’s motion to suppress evidence, ruling police did not need a warrant before placing the tracking device on the car. Johnson was convicted of traffi cking in cocaine and sentenced to 15 years in prison.
Assistant Butler County Prosecutor Josh Muennich said at the time Johnson was arrested, the common belief was that a search warrant was not required to place a GPS tacking device on a vehicle, so the search of Johnson’s car was in compliance with the Fourth Amendment and Section 14 Article I of the Ohio Constitution. However, in light of the U.S. Supreme Court’s decision in a similar and more recent case, the Ohio Supreme Court has sent the case back to the Appellate Court and to the county court with an order to vacate the sentence, he said.
Butler County Common Pleas Judge Andrew Nastoff is scheduled to decide the Johnson case on Oct. 19. If the judge sustains Johnson’s motion to suppress the evidence, Johnson could be released pending the possibility of further appeals by Butler County. There would also be options available to Johnson if the case goes against him Oct. 19.
Following his conviction, Johnson appealed to the Twelfth District and argued that the trial court improperly admitted evidence at the trial because the police should have obtained a search warrant before attaching the GPS to his car, and the traffic stop was not lawful. The Twelfth District Court of Appeals held that Johnson had no reasonable expectation of privacy in the undercarriage of his van while it was parked on a public street when the officers installed the device. Also, the court found Johnson had no reasonable expectation of privacy in his travel on public roads, that the trial court properly admitted the evidence, and that the stop was lawful.
Appellate Judge Robert A. Hendrickson wrote for the court at that time, “The US Supreme Court precedent has established not only that a vehicle’s exterior lacks a reasonable expectation of privacy, but also that one’s travel on public roads does not implicate Fourth Amendment protection against searches and seizures. Law enforcement need not obtain a warrant to observe where a driver chooses to drive on public roads, nor do they need to obtain a warrant to observe via a GPS device where a driver chooses to drive.”
However, in a case decided last January, the Supreme Court of the United States ruled in United States v. Jones that the government's installation and prolonged use of a GPS tracking device on a suspect’s vehicle in the Washington, D.C., area without a warrant constitutes a ‘‘search’’ under the Fourth Amendment. The District Court had suppressed the GPS data obtained while the vehicle was parked at Jones’s residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted.
Johnson’s mother, Rhoda Thompson, of Cincinnati, said of the case, “A grave disservice is being done in Ohio. The U.S. Supreme Court ruled that the GPS tracking device is a violation of rights. Thanks to Attorney William Gallagher, who successfully fought for the rights on behalf of my son, the Ohio Supreme Court reversed and remanded their decision to the lower court in Butler County, advising individuals could not be monitored as they traveled without a warrant.’’
“After searching my son's trashcans and getting informa tion from a paid informant, Butler County law enforcement authorities placed a GPS tracking device underneath my son's van and tracked him to Chicago where he was visiting with family. They followed him back into Ohio. When he arrived in Fairfield, he crossed a solid white line to make a right turn and was stopped by police. They put my son in back of the police cruiser while they brought out drug sniffing dogs to see if there were any drugs in my son's possession. There were none.’’
Johnson’s attorney William Gallagher said the U.S. Supreme Court has now said officers cannot obtain evidence (obtained via GPS tracking) without a warrant. But the Ohio Supreme Court says exceptions may be permissible to expand that use, leaving it up to a judge to determine the legality of the search. This would allow a judge to overlook the fact that evidence might have been obtained illegally, with no consequence for improper police behavior, he said.
However, the Ohio Supreme Court had no alternative but to vacate Johnson’s sentence in light of the U.S. Supreme Court’s decision in favor of the defendant in the Jones case, Gallagher said. In addition, Johnson should have been released when his sentence was vacated, he added.
Although the Ohio Supreme Court ordered the Twelfth Dis trict Appeals Court to reverse its decision and vacate Johnson’s conviction, it directed the local court to conduct any other proceedings it saw fit.
“My son is all about getting his life back and being with his family,’’ Johnson’s mother said. “His sentence was vacated, so we are asking for clarification from the appellate court as to why he is still being held by Butler County officials.” Johnson is being held on a $500,000 cash bond pending the decision of the court. The case number is the same but the judge has set a new bond in the case, Thompson said.
Johnson, 38, is a former construction worker, is married and has a nine year old daughter and a 13 year old son who is battling cancer.
Thompson adds that the Butler County sheriff's deputies had gone into her son’s home, taking immediate possession of some of his belongings, which included shoes, televisions and two vehicles. They have since sold those items, she said. Gallagher said the county owes Johnson reimbursement for those possessions taken and sold while he was falsely imprisoned.
Thompson, who works as a coordinator of benefit programs for government entities in Southwest Ohio, is a founding member of the African American Chamber of Commerce, and active in community causes in the Cincinnati area. She served on Mayor Mark Mallory's Economic Inclusion Task Force and as president of a local area Chamber. She served on the Small Business Advisory Board for the Cincinnati USA Regional Chamber.
She adds that she believes other people may have had their rights violated by authorities throughout the region using devices to track vehicles without a warrant and would like to bring this case to the attention of other attorneys who may use this case on behalf of their clients.
Gallagher notes the decision will be the first involving GPS tracking in Ohio, and a monumental one in deciding whether police will be allowed to use information obtained by this new technology. “If an officer does not have to have a warrant in this case, what about when something else (in the form of new technology) comes along?’’ he asks.
Assistant Prosecutor Muennich said a decision would be made about how to reimburse Johnson for the sale of his possessions if he wins the case. He said the court followed procedures involving the forfeiture of proceeds gained from illegal activities in seizing and selling Johnson’s property. “We first want to deal the with Jones decision before we unwind that,’’ he commented.
Thompson said her son is not concerned about those possessions as he is about his freedom. “It’s about justice, not material things. Justice must be served and the authorities must understand they are not above the law. This case will lend itself to authorities completing the appropriate steps when it comes to following the letter of the law.”