Warrants and Electronic Tracking

By:  Joseph Hegedus, OPBA Attorney

While technological advances sometimes result in contributing to a more complex and difficult workplace for law enforcement employees, certainly, some devices have provided more effective and efficient tools for combating crime.

In addition, all of this evolving technology has provided the courts with novel issues to consider on an ongoing basis.

Recently, the Ohio Twelfth District Court of Appeals, for Butler County, decided two connected cases dealing with the issue of whether police officers needed a warrant to place a GPS device on a suspected drug dealer’s car which was parked on a public street.

The facts of the case illustrate that a detective received information from three separate confidential informants alleging that the defendant was trafficking cocaine.  The intelligence also asserted that he was about to acquire seven (7) kilos of cocaine and that he did some of his business out of a white Chevy van.

The detectives performed a trash pull at the defendant’s residence and while they were there they placed a GPS device on the undercarriage of the defendant’s van which was parked on a public street.  The GPS device was in a magnetic case and did not require that it be hard-wired to the van.

During the trash pull the detectives discovered that the defendant had recently gotten fuel in both Cincinnati, Ohio and Chicago, Illinois on the same day.

In periodically checking the movements of the defendant on the Internet, one of the detectives discovered that the defendant was once again, in or near Chicago.

After unsuccessfully attempting to contact local law enforcement officers to assist, the detective engaged the retired brother of a Butler County Sheriff’s Office employee, who lived in the Chicago area, to attempt to identify the van.  The retired Immigration and Custom’s Enforcement Officer located the defendant’s van along with another automobile with Ohio license plates and witnessed the defendant carrying a box/package to the vehicles from a Chicago residence.

The retired officer then followed the vehicles back to Ohio where both vehicles were stopped for separate traffic violations in Butler County.

Upon stopping defendant’s van, a canine was deployed around the exterior of the van without success.  At that time, defendant consented to a search of the van which did not produce any contraband.  However, a search of the companion vehicle, also with the aid of a canine, led to the discovery of seven (7) kilos of cocaine hidden in a secret compartment in the trunk of the car.

Both the defendant and the driver of the companion vehicle were arrested and filed Motions to Suppress alleging various constitutional issues, the most interesting of which was whether the law enforcement officers violated the federal and/or state constitution by placing the GPS device on the vehicle without a warrant.

In upholding the denial, by the trial court, of the Motions to Suppress, the Butler County Court of Appeals held that placing the GPS on the van and monitoring its movements did not constitute a search or seizure under either the federal or Ohio Constitution because there is no reasonable expectation of privacy in the exterior of an automobile, which includes the undercarriage.  Also, the court indicated that a person traveling in an automobile on a public thoroughfare has no reasonable expectation of privacy in his or her movements from one location to another.  Finally, the Court reconfirmed that, in Ohio, canine checks of the exterior of a vehicle do not constitute a search within the meaning of the constitutions, and thus, an officer need not have a reasonable, articulable suspicion of criminal activity prior to deploying a canine to check the exterior of an automobile.

The two related cases discussed above are State v. Kelly, 188 Ohio App.3d 842, 937 N.E.2d 149 (12th Dist. Ct. of Appeals, Butler County, 8/2/2010); and State v. Johnson, 190 Ohio App.3d 750, 2010-Ohio-5808 (12^th Dist. Ct. of Appeals, Butler County, 11/29/2010).

The Johnson case was recently accepted for discretionary review by the Ohio Supreme Court and has been briefed by both parties, as well as an impressive array of interested third parties, who filed “amicus” or friend of the court briefs.

As a result, the Ohio Supreme Court will likely decide this issue of first impression sometime late in 2012.