USE OF DEVICES WITHOUT WARRANTS QUESTIONED
A central Kentucky drug task force is using satellite-based tracking devices, sometimes without warrants from judges, to keep track of suspects in their cars.
The Richmond Register reported that the devices use the same Global Positioning System (GPS) satellites that portable navigation devices and cellular phones use to give directions, a practice that has members of the local legal community concerned.
The Central Kentucky Area Drug Task Force, a multi-county agency, has spent nearly $18,000 over the past two years to purchase a variety of systems designed to allow officers to track the movement of vehicles covertly using GPS satellites.
Task force director Rick Johnson said his agency does own and has used three of the devices. But, Johnson declined to give any specific details beyond stating that they were installed without obtaining warrants.
Johnson also said that Commonwealth's Attorney David Smith, whose office prosecutes all felony cases in Madison Circuit Court, was not being notified of the use of GPS trackers "because he hasn't asked which cases they're being used in."
Smith said he expected information of that nature to be submitted to his office without prompting.
"I would think that it should be included in his case report," Smith said.
Defense attorneys say using the tracking device without a judge's approval may be skirting the law.
"It is disappointing that anyone in law enforcement defends this practice," said Wes Browne, a former prosecutor in Madison County now in private practice. "This is harmful to justice, not helpful."
The newspaper reported that the task force bought the three GPS devices from Coleman Technologies Inc., a Florida-based firm whose Web site touts its "AGenT" tracking devices as made for the "exclusive use of the law enforcement community."
The company's literature says the device communicates using cellular phone networks, and can store up to 200,000 location measurements in its onboard memory.
Johnson said the devices could be installed outside the target vehicle's passenger compartment without a warrant as long as the vehicle was parked on public property.
"I can tell you those are perfectly legal to use," Johnson said. "If it wasn't, we wouldn't be doing it."
Madison County Sheriff Nelson O'Donnell confirmed his office does own one of the devices and would not be using it if it were illegal.
"The last thing I would do is intrude on anyone's constitutional rights," O'Donnell said.
Richmond Police Chief Larry Brock said his department owns more than one, but said they were purchased "long before" he became chief in July 2007.
"We do have and utilize tracking devices in certain, very specific, cases," Brock said.
While there are no cases directly addressing whether a warrant is needed to use the device, Johnson said it appears no warrant is required to do so.
"A lot of people would prefer a court order to do it, but there's no law that says you have to have a court order to do it," Johnson said. "If they did, I would certainly be getting a warrant every time."
Johnson said the device doesn't tell police anything they couldn't find out on their own by driving by someone's car.
"It's not going to tell you what the person inside the vehicle's doing, it's not going to tell you anything, it just tells you where it is," he said.
Criminal defense attorney Mike Eubanks said warrants should be required to use the device, if for no other reason than to protect the use of evidence at trial.
"From a practical standpoint, as a law enforcement official why would you risk having this evidence, obtained by warrantless GPS tracking, tossed at trial when a warrant could be obtained, unless they know that what they are doing would not be sanctioned by a court through a search warrant?" Eubanks asked.
October 5, 2009