Court Tells Cops They Can't Use GPS Data Gathered After Suspect They Were Tracking Sold The Vehicle
from the ALL-GPS-DATA-NON-TRANSFERABLE dept
This might be laziness. Or ineptness. Or just another indicator of how much citizens' rights mean to their public servants. Whatever it is, it's definitely not good policing. A drug bust that fortuitously rolled into the lap of the Colorado Springs Police Department has now rolled back out of it, thanks to a Colorado federal court. (via Brad Heath)
Here's the story. The PD suspected someone known as "S.B." to be engaged in drug trafficking. S.B. owned a white BMW that was apparently used during drug deals. Detectives obtained a warrant to place a GPS locator on the car and track its location for 60 days.
Three weeks after the tracking device was placed on the vehicle, detectives noticed the car's rims had been removed and a "For Sale" sign placed in its window. A couple of weeks after that, the car's location data shifted dramatically. It was no longer spending a great deal of time parked in S.B.'s driveway. It was spending a majority of its time at a new address -- one with no association to S.B. and the location data previously obtained.
Colorado Springs detective Michael Gannett obviously felt the vehicle was in the possession of a new owner. His report noted the new location data and his efforts to verify if a change of ownership had taken place. Plainclothes detectives walked past the vehicle at its new address. They saw some drug trafficking activity being performed by the driver, but were unable to determine whether it was the person they had under investigation or someone else entirely.
Rather than get this all sorted out, the PD chose to leave the GPS on the vehicle and continue tracking its location. This warrantless deployment resulted in someone else being arrested on drug charges -- not the person the PD was originally looking for.
This person, Charles Wood, challenged the evidence obtained from the illicit tracking. The court agrees [PDF] with Wood's Fourth Amendment assertions.
In this case, the probable cause undergirding the warrant was founded exclusively in the illicit activities of S.B. On July 2, nearly halfway through the lifecycle of the warrant, S.B. relinquished the possessory interest he had in the vehicle when it was sold and, in doing so, vitiated the probable cause at the heart of the warrant. The Government does not dispute that electronic tracking continued after the sale of the vehicle. If the executing officers knew or had reason to know of the sale, their continued search was “unsupported by probable cause” and violative of the Fourth Amendment.
The government argued that the existence of a "For Sale" sign in the car's window shouldn't be enough to trigger the "know or should have known" part of the now-dissipated probable cause. The court agrees. A "For Sale" sign indicates nothing but the owner's intention. But it points out that the police had far more to work with than this sign.
The evidence becomes problematic for the officers when viewed in conjunction with the electronic tracking data, which showed a dramatic departure in the behavior of the driver of the 2001 White BMW shortly after the “For Sale” sign was first observed. For the first twenty-five days of electronic tracking, the 2001 White BMW was returning to the residence of S.B. nearly every day. In early July, the data shows an abrupt change in the resting location of the vehicle, an address with no known association to S.B. Moreover, the vehicle never returns to S.B.’s residence, and S.B. is never again observed operating the vehicle.
The court points to another piece of evidence that solidifies the court's stance -- one handily provided by the PD itself.
The most telling evidence is the report and testimony of Detective Garnett himself. In his report of July 13, Detective Garnett writes that he “wanted to conduct surveillance” of the vehicle on July 8 “to see if my previous suspect was still driving the vehicle or if it still had the same plate number.” His words strongly imply a suspicion that the vehicle had changed hands. Even if it were possible to construe those words differently, Detective Garnett plainly admitted during the suppression hearing that he decided to surveil the 2001 White BMW on July 8 because he doubted S.B. was still operating the vehicle.
On top of that, very little attention was paid to S.B. The detectives working the case seemed far more interested in the vehicle than the person driving it. (Hello, asset forfeiture!)
Taken together, the evidence and Detective Garnett’s own admissions demonstrate beyond mere inference that he had “notice of the risk” that he was pursuing a warrant unsupported by probable cause. Indeed, it was his apparent expectation that a person other than S.B. was operating the vehicle, and he endeavored to identify that individual on July 8. After all, if the priority had been locating S.B., it would have been more efficacious to return to S.B.’s residence to determine his whereabouts. Tellingly, Detective Garnett testified that no efforts were made to observe S.B. at his residence or elsewhere after tracking data indicated the dramatic change in the location of the 2001 White BMW.
Adding it all up, the court finds the PD has no probable cause to support its (warrantless) tracking of the vehicle's new owner. It had the chance to obtain a new warrant after detectives observed the new driver cutting up drugs in the car, but chose instead to let the old warrant ride. The government argued suppression was too harsh. The court disagrees.
The Court recognizes that granting a motion to suppress in a case like this is an extraordinary remedy. However, it is the extraordinary duty of law enforcement officers to ensure that they pursue their important work with an appropriate regard for the foundational constitutional rights of those they police. Here, the executing officers had reason to believe that they were prosecuting a search without probable cause, and forged ahead anyway.
That's the right decision. If cops want convictions, they need to play by the rules. Law enforcement officers have a great deal of power at their disposal. But they have to use it responsibly. If they can't handle the responsibility, then they don't deserve to "win." It's that simple.
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Filed Under: 4th amendment, colorado springs, gps, michael gannett, police, probable cause
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Police: Pay Attention to This
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Curiously... Just after Charles' arrest, they showed up at S.B.'s house to pick up the guilty rims and tires. No charges were filed.
Back to you Kent!
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If the arrest only happened because of the illegal tracking, then any seizures that happened as a result of the arrest are likewise illegal.
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Sounds to me like they were fishing for some forfeiture and had no intention of actually charging anyone. Do we know who has the car now?
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Sloppy work.
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Re:
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Small but important correction
The Court recognizes that granting a motion to suppress in a case like this is an extraordinary remedy. However, it is the extraordinary duty of law enforcement officers to ensure that they pursue their important work with an appropriate regard for the foundational constitutional rights of those they police. Here, the executing officers had reason to believe that they were prosecuting a search without probable cause, and forged ahead anyway.
Expecting police to work within the limits set by the law is no more 'extraordinary' than expecting someone paid to drive a vehicle to drive under the speed limit and obey things like stoplights and signs. When you'r talking about someone tasked with upholding and enforcing the laws, knowing and following those same laws themselves is one of the most basic requirements that should be expected of them, not some incredibly difficult task that they have to struggle to accomplish.
While it's good that the court rightly tossed the tainted evidence, they're wrong in that doing so is an 'extraordinary remedy'. Rather, it's the least that should happen when police ignore, whether intentionally or not, the laws that they are supposed to enforce.
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Re: Small but important correction
Yes, that should be true. However, this particular court must legally operate under the assumption that police are neither required nor expected to know the laws they are enforcing. The supreme court has ruled that this is so, and only an act of Congress can alter that. Thus, their claim that this is an extraordinary duty.
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Re: Re: Small but important correction
Ah yes, how could I forget that stunning example of idiocy on behalf of the SC that enshrined within the legal system the idea that ignorance of the law is a valid excuse... but if you happen to be tasked with upholding it.
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Quite lazy indeed
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Re: Quite lazy indeed
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The cops will never have any idea the GPS was jammed, as it will appear to be malfunction.
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Radio frequency jamming equipment is illegal in the United States. Even law enforcement can't use it much. It's pretty much limited to military use in extraordinary circumstances here due to FCC regulations.
If a law enforcement officer figures out what you've done, that's a felony they can arrest you for right there (there are people who've tried something similar with car-mounted cell phone jammers and disconnected everyone they drove past). The fines are huge and repeat offenses can lead to jail time.
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It's like the title bureau is on a different planet or something.
I don't think it's the title bureau that's on a different planet... just sayin'.
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I didn't mean to suggest that our reptilian police overlords weren't an occupying force from a different planet. Just that they couldn't find an intimately connected state agency with both hands and a flashlight.
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Erm... wouldn't a legal sale involve notification of a change of ownership at the DMV? Wouldn't a check involve less effort than getting people to casually walk by hoping to spot a new driver?
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I knew there was a reason...
(Maybe the owners should be treated as victims, not criminals?)
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They just wanted the car. Liked it to the point they noticed the rims were changed.
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Wow
Civil asset for future needs reform requiring an actual conviction, and removing the barriers to the return of property for innocents who get caught by nothing more than a cop knowing blue book value on this car means I get another medal.
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Re: Wow
And GPS tracking without a warrant when you know you aren't covered by the original warrant any more...
It's like observing over prolonged times the neighbor of a person you actually have a warrant for.
They had more than enough probable cause for continued observation with the handily still active tracking device but the decision, for good reason, has to be signed off by a judge.
A judge stating otherwise is labelling himself as unnecessary.
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Identity
As the Detective walked pass the vehicle to identify the driver.... He was unable to do so because of the tint being too dark on the vehicle... Hmmm then how is it he was able to see the driver cutting up drugs while parked . I don't know one dealer willing to cut up drugs while in car.
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