GPS tracking of car without warrant contested

GPS tracking of car without warrant contested

Friday, January 21, 2011  12:11 PM

By John Futty

The Columbus Dispatch

Robbery defendants Montie E. Sullivan, 19, top, and David L. White, 23

Two men accused in a string of home-invasion robberies in Franklin County last year are trying to get the evidence thrown out because deputy sheriffs tracked them by placing a GPS device on their car without a warrant.

Ohio law on the issue is unclear, but recent court rulings don't bode well for the defendants, Montie E. Sullivan and David L. White. An Ohio appeals court has ruled that people driving on a public road should not expect privacy.

A judge in Fairfield County, where the last of the home invasions occurred, ruled in July that investigators didn't need a warrant to attach the GPS device to the car. The two men pleaded no contest in that case, and each was convicted and sentenced to prison. They are appealing the convictions, based largely on the GPS issue.

Sullivan and White are waging a similar legal battle in Franklin County, where they are charged in six home invasions and where the device was placed on the car.

Franklin County Common Pleas Judge Michael J. Holbrook heard oral arguments last week on the defense motion to suppress evidence. The judge asked attorneys on both sides to submit additional briefs by the end of the month. Trial dates for Sullivan, 19, and White, 23, are tentatively set in May.

Fairfield County Prosecutor David Landefeld said he hopes the judge in Franklin County follows the same reasoning as the Fairfield County judge. "The Franklin County judge is not bound by a decision by a common pleas judge in another county," Landefeld noted.

The highest courts in New York, Oregon and Washington have ruled that warrants are required when law officers want to track someone with GPS technology, but the Ohio Supreme Court hasn't considered the issue.

The most-recent appeals-court ruling in Ohio found that warrants aren't necessary. In November, the 12th District Court of Appeals upheld a lower-court decision that the Butler County sheriff's office didn't violate the constitutional rights of a suspected drug dealer whose movements were tracked with a GPS device placed on his van without a warrant.

"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," wrote Judge Robert E. Hendrickson.

That sentence also summarizes the position of the Fairfield County prosecutor in the case of Sullivan and White.

"If the sheriff's office had sufficient manpower, it could follow a car 24/7 without a warrant," Landefeld said. "In essence, you're doing with a GPS device what you could do with officers if not for manpower issues."

Joseph E. Scott, Sullivan's attorney in the Franklin County case, said the satellite-based tracking of his client for nine days without a warrant violated his Fourth Amendment protection against unreasonable searches.

"Certainly, a person expects when they travel on public roadways that portions of their route might be observed by others," he wrote in his motion to suppress. "However, a reasonable person does not contemplate a comprehensive mapping of the totality of their movements, including the location of each stop and the duration of the trip, will be monitored and recorded around the clock for a period of nine days."

A Franklin County deputy placed the device on a car registered to Sullivan in a public parking lot on Jan. 14, 2010, after Sullivan and White were linked by investigators to a string of home invasions. The car's movements were monitored until an officer detected suspicious activity in the area of a Fairfield County residence on Jan. 23.

Within minutes, a resident reported a home invasion on Bickel Church Road. By the time Fairfield County deputies arrived, two gunmen had fled after firing through a side door and killing a Labrador retriever inside.

The GPS was used to track Sullivan and White to an apartment on the East Side of Columbus, where they were arrested.

Aaron Conrad, White's Fairfield County attorney, said deputies easily could have obtained a warrant for the GPS device. "All you need is probable cause," he said. "It's not a high burden. They are not hard to get. I don't know why they didn't."

The American Civil Liberties Union of Ohio agrees that use of GPS to track citizens without a warrant is a violation of the Fourth Amendment, said James Hardiman, the organization's legal director.

"The issue ultimately is going to have to be decided by the U.S. Supreme Court," he said. "It's a very slippery slope we're on. As we give up more and more of our rights, we take giant steps backward."