GPS Tracking devices are being used by Louisville Metro Police on the vehicles of some suspects, at times without a court order. The warrantless tracking raises concerns about whether such use is constitutional, according to a leading criminal law professor.
Police acknowledged the use of the tracking devices after WHAS11 News brought a U.S. Attorney's Office news release that cited Metro Police's use of them to LMPD's attention. The Justice Department apparently did not know that the use of such devices in Louisville had never been revealed.
"We do not want to educate criminals as to all of our methods we use to surveil them," said Lt. Col. Vince Robison, the Assistant Chief of Police.
The news release that revealed the use of the tracking devices outlined how federal and state authorities in Kentucky, Texas and Louisiana built their drug trafficking case against Rickey Calloway, 34, of Louisville and Luciana Meadoweal, 32, of Hopewell, Virginia.
The investigation started with old fashioned police work when, in November 2006, Metro Police detectives noticed a 1998 Lincoln Town Car belonging to Calloway parked in front of a known "stash house" in South Louisville.
It ended after that old fashioned police work got some secret space age help based on the same technology drivers use to find a restaurant or the best way home, GPS.
"GPS is used to track people that we have belief that they are involved in criminal activity," Robison said. "I don't want to give all the information out, but we would be able to tell where the general locations are, where they have traveled to, how long they were at a location."
When detectives got information that the Lincoln Town car with a “false compartment” in the trunk might be heading out of town to pick up a load of drugs, they got a court order to install a GPS tracking device.
Instead of the dangerous and costly business of physically tailing a drug suspect, detectives simply tracked the car heading south toward Houston, which investigators call "a known drug trans-shipment city" parking in the Sugarland suburb, then, as LMPD watched from Louisville, heading east back toward Louisville.
"The criminals have essentially expanded their technology, their range. You have people who deal in multistate enviroments, criminal networks. And to be able to track them with a group of police personnel across multiple states , that would be quite a challenging endeavor. Whereas, with the GPS tracker it makes it more practical to continue your investigation and not lose contact with the person of interest."
Ironically, a traditional traffic stop in Louisiana, with Meadowel driving the car, led to a search that revealed 9 kilograms of cocaine and $80,000 in cash hidden in the false compartment. But the GPS information brought her back to Louisville to face charges.
In this case, police got a court order, but Metro Police have now revealed to WHAS11 News, that for about 30% of their GPS tracking cases this year, they did not get a judge to sign off on a warrant first, a consequential distinction according to University of Louisville criminal law professor Luke Milligan.
"It makes all the difference in the world," Milligan said "The framers enacted the 4th Amendment because they were concerned about police having the discretion to conduct searches on their own."
Milligan says the Supreme Court has not yet dealt with the constitutionality of warrantless GPS tracking by police.
"The court has a blind spot particularly when it comes to keeping up with emerging technologies. Today we find ourselves in the midst of one of these blind spots."
So, for the time being, there is nothing illegal or unconstitutional about the warrantless tracking.
"But it clearly violates the spirit of the 4th Amendment. And I think there is no question that the court will eventually come around."
"It's very troubling," Milligan continued, "I think we have a long tradition in this country of requiring government officials to go before a neutral magistrate to make thier case. We are concerned about abuse, abuse in the context of politics, abuse in the context of personal vendettas. It's very important over time that we keep a close eye on police and the best way to do that is through the warrant requirement."
The LMPD assistant chief counters that warrantless GPS tracking is used when time is of the essence and when the tracking is simply an extension of traditional surveillance.
"And it's a small minority of cases," Robison said, "This year, we've not done a dozen cases through ten months of the year. So we will track them by tracking their vehicles to see where their vehicles go. It's another way of doing surveillance. In the sense that I could drive down the street and see your car. I can see where you go, follow you, by using a team of officers. Now, we have the ability to use technology to track a vehicle without having a team of officers."
"And these are not small time criminal activities. These are things we regularly spend a lot of time on in an investigation, and we believe it's something we need to do to ensure the safety of the citizens," Robison continued.
With no test cases yet before the U.S. Supreme Court, and with no law specifying GPS tracking, it is an open ended question whether warrantless tracking is constitutional, which could complicate future criminal cases.
"I think there's no question they run the risk that the fruits of those searches, the evidence obtained as a result of this GPS tracking would be suppressed," Milligan said, "However, it's a jump ball. I think it's very likely that the court is going to uphold this type of warrantless, suspicionless tracking at least in the near future."
But Robison counters that the GPS tracking case are not without suspicion.
"We are not routiney following 'John Q. Citizen. There has to be some significant criminal activity we suspect in the course of an investigation that causes us to have the interest to surveil them," Robison said.
"We're not following people around. Essentialy this is a tool that we'd normally be surveilling someone, we're using this to do it for us."