After a three-month investigation, the Register has revealed that multiple local law enforcement agencies are using satellite-based tracking devices, without warrants, to keep a record of where and when suspects under investigation drive.
The devices use the same Global Positioning System (GPS) satellites that portable navigation devices and cellular phones use to give directions, but these devices are used in a much different manner, a practice that has members of the local legal community concerned.
The Central Kentucky Area Drug Task Force, a joint agency comprised of officers from the Madison, Clark, Garrard and Jackson sheriff’s offices and the Berea Police Department, 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 confirmed in an interview that his agency does own three of the devices, and has used them, but declined to give any specific details beyond stating that they were installed without obtaining warrants.
Johnson also said during the course of his interview 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.”
“It’s not something we’ve intentionally tried to hide from prosecutors,” Johnson said.
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.
A proposed order has been tendered to Madison Circuit Judges Jean C. Logue and William G. Clouse for consideration that would require disclosure of the use of such devices, Smith said.
What is it?
The vast majority of the task force’s spending has been on equipment from Coleman Technologies Inc., a Florida-based firm whose Web site touts its “AGenT” tracking devices as “small, lightweight, ruggedized, reliable, easy-to-use and easy-to-install robust GPS tracking devices which are specifically designed and built for the exclusive use of the law enforcement community.”
Budget and expense records obtained from the task force under the Kentucky Open Records Act show the agency purchased three “All-in-one GPRS” systems from the company using money from the federal Byrne JAG Grant and forfeiture funds that provide the agency’s budget.
Entries in the expenditure ledgers maintained for the grant and forfeiture funds show that the first system was purchased on Nov. 12, 2008, for $5,856 from Coleman Technologies using forfeiture funds alone.
A second system was purchased in March 2009 using $1,020 in funds from the JAG Grant and $4,836 from the forfeiture funds, and a third system was purchased on June 9 solely from grant funds at a cost of $5,991.
The ledger entries for the grant funds identify the March purchase as a “Platinum All-in-one GPRS package” and the June purchase as a “Silver All-in-one GPRS package.”
Coleman Technolgies’ Web site lists “All-in-one GPRS Devices” and device packages for sale under the heading “AGenT”, but restricts access to details about the devices.
According to a copy of a sales flyer produced by Coleman Technologies and available on the Internet from the public records of a California sheriff’s office, the “AGenT” device is designed “to navigate in obstructed view locations such as the underside of a car facing down” and can be configured to notify users via e-mail when the vehicle being tracked moves.
The device communicates using cellular phone networks, and can store up to 200,000 location measurements in its onboard memory, the flyer states.
The device includes computer-based mapping software that covers North America and offers Internet-based tracking, according to the promotional materials.
Johnson said according to his information, 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.
“There’s no expectation of privacy on the outside of your vehicle when it’s parked in a public place,” he said.
Who’s using them?
Johnson claimed during the interview that, “about every agency that can afford them is using them.”
To test that claim, open records requests were submitted to the Madison County Sheriff’s Office, Berea Police Department, Richmond Police Department and Post 7 of the Kentucky State Police, which is headquartered in Richmond.
The requests sought copies of all receipts, invoices and other documents related to the purchase, rental or leasing of any covert GPS devices, as well as identification of authorized users and copies of any written policies regarding their use.
Berea police chief Col. David Gregory responded in writing that his department had no records because they did not have any covert GPS equipment, and the same message was expressed in a phone call to the Register.
The Madison County Sheriff’s Office initially declined to provide any records, and Sheriff Nelson O’Donnell confirmed his office did own one of the devices only after a second request was submitted.
O’Donnell said his office would not be using the device if it were not legal.
“The last thing I would do is intrude on anyone’s constitutional rights,” O’Donnell said.
Richmond Police Chief Larry Brock declined to comment when asked directly whether or not his department owned any of the devices.
“We don’t comment on investigative techniques,” Brock said.
In a response to the open records request filed with his department, however, Brock did confirm that Richmond police own more than one of the devices, but said they were purchased “long before” he became chief in July 2007.
Department personnel were searching for records related to the purchase of the devices, Brock said, but he was unsure whether those records still existed or could be located.
“We do have and utilize tracking devices in certain, very specific, cases,” Brock said. “They may be deployed in such cases where it has been established through credible information that the target is involved in criminal activity.
“They are not used routinely and are never utilized against law-abiding citizens in any form or fashion,” he said.
Brock said his department’s practice has required a supervisor to examine the use of the devices to ensure they are used within the law, but that a formal policy has not been established.
“Your inquiry has caused us to consider that perhaps we need to implement a policy regarding the use of electronic equipment,” Brock said.
A Kentucky State Police public records section official said by telephone that an extensive search of Post 7 records by the post’s commander and other officers uncovered no records, and the post did not own any of the devices.
Are they legal?
When asked if a warrant or court order is necessary to use the devices, Smith said he had been unable to find any definitive rulings for Kentucky.
“From my research, I’m not aware of any case in Kentucky,” Smith said. “Maybe a slight majority of cases (nationwide) are in favor of not requiring a warrant.
“My personal opinion is that a warrant should be required,” he said.
GPS trackers are good investigative tools, Smith said, “but I think the public expectation is to have a magistrate look at what kind of case you’ve got. I don’t think any officers here would misuse it, but from a national standpoint, I think a warrant should be required,” he said.
Johnson acknowledged concerns about the warrantless use of the devices, but cited the absence of a requirement as support for not obtaining a court order.
“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.”
In their interviews, O’Donnell and Johnson both referred to a federal court case from the Seventh Circuit of the U.S. Court of Appeals, which hears appeals from courts in Illinois, Indiana and Wisconsin. That case, U.S. v. Garcia, dealt with the use of a GPS tracking device on a suspect’s car, and the court upheld the use of the device as not infringing on the Fourth Amendment rights of the suspect.
The Supreme Court of the United States declined to hear the case on appeal, a sign that they likely did not want to consider the issue yet, Smith said.
A case decided in August in U.S. District Court for the western district of Kentucky, which is based in Louisville, may eventually have some influence on the issue.
A decision issued Aug. 20 in the case of U.S. v. Williams appears to come down on the side of not requiring a warrant unless the vehicle is tracked on private property, but that decision is not directly applicable across the state.
Opponents of the devices, including the American Civil Liberties Union and the San Francisco-based Electronic Frontier Foundation, have filed briefs in another federal appeals case in the D.C. Circuit Court of Appeals arguing that the ruling in the Garcia case was wrong and citing a number of federal cases to build an argument for a warrant requirement.
“Absent a warrant requirement, the police could track unlimited numbers of members of the public for days, weeks or months at a time, without ever leaving their desks,” the EFF’s brief argues. “No person could be confident that he or she was free from round-the-clock surveillance of his or her movements and associations by a network of satellites constantly feeding data to a remote computer … .”
The brief also argues that prior U.S. Supreme Court rulings regarding the use of radio transmitters called “beepers” do not apply to the use of GPS trackers.
Police have had permission since the 1980s to use the beepers to track packages or vehicles by detecting the signal the beepers emit and following the objects in person.
Johnson said his tracking devices can be configured not only to constantly report the vehicle’s location so he can track it via computer, but also to send e-mails when the vehicle moves or when it enters or leaves a certain area.
“We can actually go by and drive by and look at it and say we saw the vehicle there, doing surveillance,” Johnson said. “It will tell you the same thing, it’s just going to tell you where the vehicle is, that’s all it’s going to tell you.
“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.
Johnson said the main value of the devices was in saving time and money for his agency.
“It’s just, it’s a super tool when used correctly, and we use it correctly,” he said. “It probably saves thousands of dollars and man-hours.”
In an e-mail conversation, Johnson also argued that his agency’s use of the devices was legal because similar devices were available to the public.
“If you check online, there are several devices that are available to the public and if a person wanted, they could purchase these and monitor their employees, neighbors, wife or whomever,” Johnson said.
Local criminal defense attorney Mike Eubanks said his research shows the issue of whether a warrant is required is undecided, but that personally, he is in favor of a warrant requirement.
“The judiciary is most suited to define the contours of constitutional reasonableness under the Fourth Amendment and strike the balance between efficiency and privacy,” Eubanks said. “This is especially true in an area advancing so rapidly that today’s secret GPS device could soon be tomorrow’s electronic tracker — surreptitiously dropped in your backpack or purse or stuck to the heel of your shoe.”
Eubanks also wondered why law enforcement officials would choose not to pursue warrants for the devices even if the law does not explicitly require them.
“From a practical standpoint, as a law enforcement official,” he said, “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?”
Wes Browne, a defense attorney and former prosecutor in Madison County, expressed similar concerns about the use of the devices.
“It is disappointing that anyone in law enforcement defends this practice,” Browne said. “Any evidence gathered as a result of unlawful behavior by the government is commonly referred to as ‘the fruit of a poisonous tree.’ Thus, all evidence gained from the use of GPS devices placed without a warrant should be, by extension, poisonous and unusable in court.
“This is harmful to justice, not helpful,” Browne continued. “Worse, it erodes the public’s confidence in law enforcement.”
That confidence in law enforcement was a major concern for Meena Mohanty, a member of the Citizens’ Police Advisory Board for the Richmond force and a public defender.
Mohanty said she was “surprised” and “disappointed” to learn the Richmond Police Department was using the devices.
“I believe the board has worked to build a trust between the community and the police department, and this undermines those efforts to build that trust,” Mohanty said.
Mohanty was hopeful that if the Richmond department creates a formal policy regarding the use of the devices, it would include a warrant requirement.
“There should be logs about what’s taking place and time limits on how long these devices are being used,” Mohanty said.