GPS Tracking Devices and Privacy Rights.

           I write today about the next twist in motions to suppress and GPS tracking devices.  You may recall the US Supreme Court case of US. v Jones, in which the Supreme Court held that regardless of the Wire Tap Act and the Federal Electronic Communications Act (which deal with cellular telephone data and surveillance tactics), warrantlessly placing a tracking devices on a car for the purposes of tracking that car constituted a trespass for which all evidence illegally seized therefore was to be suppressed.

Pennsylvania Superior Court has now had the opportunity to address the Jones decision in the context of the Pennsylvania’s Constitution.  In the case of Commonwealth v. Arthur, 2013 Pa Super 28; 62 A.3d 424; 2013 Pa. Super. Lexis 72 (February 20, 2013), the court reversed a Montgomery County trial court that suppressed evidence seized as a result of a tracking device.  Superior Court focused on the expectation of privacy of the passenger who did not possess an ownership interest in the automobile.  Absent any ownership interest, there was no expectation of privacy.  This specific holding is contrary to many federal cases stating that passengers in an automobile do, in fact, have an expectation of privacy.  That case is US. vs. Mosely.

 Superior court, through Judge Platt (who by the way was a wonderful trial court judge sitting in Allentown) then analyzed the facts of the case and the GPS tracking device issue in accordance with Pennsylvania’s Wire Tap Act and then separately whether the warrant was simply supported by probable case.  See articles on my web site that I wrote for Legal Intelligencer and my blogs discussing US v. Jones, Pennsylvania’s new Wire Tap Act as of 2013, and the probable cause standard in many drug and automobile stop cases.

     Let me remind you what the issues are in any car stop search case.  Specifically, a defendant must show that he or she has a standing to claim a legitimate expectation of privacy in the area searched which has been infringed upon.  Every defendant charged with a possessory offense has automatic standing to challenge a search if they had a privacy interest in the area searched.  This proof is met when the individual, by his conduct, exhibits an actual(subjective)expectation of privacy and that the subjective expectation is one that society is prepared to recognize as reasonable. In the context of car searches, Superior Court has now followed many federal courts in interpreting Jones to conclude “Jones did not create any new privacy right that would give[appellant]standing to contest the searches at issue. Where the appellant did not own,drive,or occupy the vehicle at issue, he failed to demonstrate any legitimate expectation of privacy in the vehicle,and thus lacked standing to contest the use of the GPS device.

 However, Author’s counsel failed, as do many, to provide any evidence that Author had permission to operate or be a passenger in the car from the rightful owner.  If a Defendant established consent to operate or occupy the automobile, under PA law, they have standing.   This proof satisfies defendant’s burden at a suppression hearing to prove that they had a reasonable expectation of privacy in the vehicle.

Once a defendant has standing to contest the search, the issue becomes, if the police complied with the specific procedural requirements of the Wire Tap Act (which is real easy) and then did they provide enough probable cause to the court for the issuance of the warrant.  That burden of proof is: “The task of the magistrate acting as the issuing authority is to make a “practical, commonsense assessment”of whether,”given all the circumstances set forth in the affidavit,”a “fair probability”exists that contraband or evidence of a crime will be found” in a particular place.”A search warrant is defective if the issuing authority has not been supplied with the necessary information. The chronology established by the affidavit of probable cause must be evaluated according to a “common sense” determination.”  

 Call me to discuss your GPS search warrant case.

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DUI’s and Forced Blood Draws- Supreme Court Law

I write today to discuss the United Stated Supreme Court decision in Missouri v McNeely and how Pennsylvania law may be affected by this decision. The court was asked whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. The court concluded that it does not, and held, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.

The case facts are the same as those in many of my PA and NJ DUI cases. McNeely, while operating his car on the highway violated several traffic laws, thereby giving the police lawful basis to engage in a traffic stop. During the traffic stop, the officer observed signs of intoxication, detained him for investigation, and, at the station, asked that he take a breath test. McNeely refused. He was then asked to consensually submit to a blood draw. He refused, acknowledging the refusal would be the basis for a separated license suspension. Thereafter, and this is the issue, the police compelled hospital staff to forcibly take his blood (nonconsensual) and then, during the prosecution, sought to use the BAC evidence in the DUI trial against McNeely.

McNeely objected saying the nonconsensual blood draw without a warrant was a violation of his fourth amendment rights. The state argued the mere dissipation of alcohol in the blood constituted exigent circumstances to allow a warrantless, forcible blood draw in every DUI. The Missouri trial court disagreed, suppressing the evidence saying the blood draw was an illegal search. The Missouri Supreme Court agreed, finding that this was “unquestionably a routine DWI case” in which no factors other than the natural dissipation of blood-alcohol suggested that there was an emergency, the court held that the nonconsensual warrantless blood draw violated McNeely’s Fourth Amendment right to be free from unreasonable searches of his person. United States Supreme Court has also agreed.

It has long been the law in the entire country and in Pennsylvania that a non-consensual blood draw may take place based upon a “totality of the circumstances analysis when determining whether an exigency exists to the warrantless blood draw.” The case law “requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case” and, exigency depends heavily on the existence of additional “‘special facts,’” such as whether an officer was delayed by the need to investigate an accident and transport an injured suspect to the hospital.

Car accidents, unconscious defendants, questionable basis for intoxication, and other issues are such facts that come into play in a totality of the circumstances analysis. Significantly, in the Commonwealth of Pennsylvania, Rule 203 of the PA Criminal Procedure Rules deals with the entire process and legal standard for the Issuance of a Search Warrant. The Rules states (A) In the discretion of the issuing authority, advanced communication technology may be used to submit a search warrant application and affidavit(s) and to issue a search warrant; and (B) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits. Pa. R. Crim. P. RULE 203

More importantly, the case of Commonwealth v. Shaw, 564 Pa. 617, 770 A.2d 295 (2001), stands for the proposition that Police must obtain a warrant for the release of BAC test results in cases where blood is not drawn pursuant to 75 Pa.C.S.A. § 3755(a) (governing blood draws conducted by emergency room personnel), or if the officer did not request a blood draw based upon probable cause of DUI.

Because there is a very specific procedural frame work in the Commonwealth of Pennsylvania dealing with blood draws and DUI evidence, BAC test results secured from a nonconsensual blood draw taken for medical diagnosis purposes versus compelled by police at the scene, the case of McNeely vs. Missouri will have very little affect on Commonwealth of PA DUI prosecutions. Typically, in PA, once there is a refusal, I have never seen a blood draw taken pursuant to police command merely for DUI investigative purposes. In PA, blood draws are taken nonconsensual, for medical purposes, and the police then secure a warrant to test the blood. There are many variations of how, why and when blood is drawn. Please call to discuss your case.

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