Defense attorney Randall Lewis was representing a man charged in the fatal shooting of a Livonia police officer when he discovered something surprising: Livonia police had known his client’s exact location at all times in the 11 days leading up to the shooting.
“I mean, it was like they knew what this guy was having for dinner,” Lewis said.
Police knew Terry Bowling’s whereabouts, Lewis learned, because they had surreptitiously planted a GPS tracking device under the back bumper of his Ford Taurus. Bowling has been a suspect in several home invasions.
“I was completely surprised since there was no mention of it in the police reports,” Lewis said. “And my first thought was: ‘Where’s the warrant?’ ”
There was no warrant.
Bowling’s case and hundreds like it are at the center of a growing legal storm set to land before the U.S. Supreme Court on Nov. 8. The issue: Can law enforcement agencies use GPS devices to track citizens without their knowledge?
The case, the United States v. Antoine Jones, involves Jones’ arrest and eventual conviction in 2005 for drug trafficking. Police used a GPS unit to track Jones for four weeks before his arrest.
“This is one of the most important decisions — perhaps the most important decision — in my lifetime, in terms of privacy afforded us under the Fourth Amendment,” said Susan Walsh, who wrote a brief on behalf of the National Association of Criminal Defense Lawyers in the high court case.
Right to privacy, law enforcement seem to be at odds in use of GPS surveillance
At first blush, it would seem a reasonable practice: investigators keeping track of suspects by using the latest technology.
Police say devices using the Global Positioning System are a useful law enforcement tool that gives them an easy and inexpensive way to monitor people suspected of committing serious crimes.
But defense attorneys, civil libertarians, many judges and some conservatives say the devices are so intrusive, they violate the constitution’s Fourth Amendment protections against invasion of privacy.
Critics note that the devices tell investigators such intimate details as whether a person is seeing a psychiatrist, having an affair, goes to Alcoholics Anonymous or attends church.
Next month, the U.S. Supreme Court will wade into the legal battle when it takes up the case of the United States v. Antoine Jones. An appellate court ruled police violated Jones’ constitutional rights when they tracked the Washington, D.C., nightclub owner for weeks with a GPS unit, gathering evidence used to convict him on a drug trafficking charge in 2005.
The government is now asking the nation’s highest court to rule on the constitutionality of GPS and whether a search warrant should be obtained before police use the devices.
“The government’s position is that they don’t need to even suspect that you are a criminal, that we can do this to all Americans, without any judicial oversight,” said Susan Walsh, a New York criminal defense attorney who wrote a brief on behalf of the National Association of Criminal Defense Lawyers in the Supreme Court case.
Law enforcement officials bristle at the idea of curtailing what is proving to be an effective and cheap way to conduct police investigations.
“Please don’t take away what tools we have left in law enforcement,” said Fred Timpner, the executive director of the Michigan Association of Police, which represents 2,000 police officers statewide. “For my members, this is a very important issue. It’s a very, very effective law enforcement tool.”
Oakland County Undersheriff Mike McCabe is blunter.
“Look, we use this to chase the bad guys,” he said. “We don’t have time to follow anybody else around. It’s not an issue.”
Why and when the GPS is used
Until a few years ago, police relied mostly on old-fashioned surveillance, along with bird dogs, electronic devices that helped investigators keep track of the defendants they were trailing. These devices allowed police to follow suspects physically, but not track them from a remote place for long stretches.
With the advent of GPS — a satellite-based navigation system that allows police to monitor a suspect from a laptop and record the suspect’s movements over a long period of time — police suddenly had a cheaper, safer way to spy.
“It’s popped up all over the place,” said Walsh, “but there has been a great reluctance for law enforcement to be very forthcoming about the use of GPS.”
Oakland County’s McCabe said the devices are used “maybe 10 or 15 times a year” in his department. In Macomb County, Sheriff Anthony Wickersham said his investigators use GPS “on occasion.”
“It is a tool that is readily available to us,” Wickersham said. “It is used to augment in certain investigations. It’s not the something that we just rely on all the time.”
Wayne County Sheriff Benny Napoleon’s spokeswoman, Paula Bridges, would not say whether that department uses GPS devices. Wayne County Prosecutor’s Office spokeswoman Maria Miller said, “The police have used GPS in our cases, and it has been a very useful tool.”
In Livonia, the use of GPS to track suspects came to light after police Officer Larry Nehasil, 48, died during a shootout in Walled Lake on Jan. 17.
Terry Bowling and his brother, David Bowling, were suspects in a string of burglaries in metro Detroit when undercover investigators put a GPS on their Ford Taurus. Police tracked the men to a home they were burglarizing in Walled Lake. When Nehasil confronted David Bowling in the backyard, the two exchanged shots. Both died.
Terry Bowling pleaded no contest to second-degree murder and faces up to 30 years in prison when he is sentenced Wednesday.
All Americans could be affected
Critics of law enforcement’s use of GPS technology say the surveillance itself isn’t objectionable — it’s the lack of judicial oversight and the extended length of time the devices are often used.
In Michigan, law enforcement and private investigators have free rein to use GPS devices, but private citizens are prohibited from using them to spy on others.
Massachusetts, New York, Oregon and Washington prohibit police from using GPS devices without a warrant. Other states are considering safeguards.
“This is a case where we, as a society, need to grapple with the impact that new technology has on the right to privacy that we, as Americans, have always enjoyed,” said Dan Korobkin, a staff attorney with the American Civil Liberties Union of Michigan.
“The problem is not where GPS starts off, it’s what happens with the GPS over time. If the police are allowed to track us or spy on us for weeks or even months with no oversight, no accountability, then that becomes the problem.
“That’s what most Americans are concerned about when it comes to government using this technology.”
Courts throughout the nation have handed down conflicting rulings.
Alex Kozinski, a conservative judge on the federal appeals court in San Francisco, called GPS monitoring “creepy and un-American.” In a dissenting 2010 opinion, he said unfettered GPS use gives “the government the power to track the movement of every one of us, every day of our lives.”
But Richard Posner, a judge on the federal court of appeals in Chicago, likened GPS devices to old-fashioned surveillance, in which investigators followed suspects around.
Suspects don’t have the expectation of privacy on public streets, he wrote, adding: “There is a trade-off between security and privacy, and often, it favors security.”
The Constitution Project, a nonprofit, bipartisan think tank in Washington, D.C., has been studying the issue and released a position paper in September, denouncing the use of GPS technology without warrants.
The committee included William Sessions, a former FBI director, and David Keene, former chairman of the American Conservative Union.
The committee urged that warrants be required for all GPS surveillance, or in the alternative, be limited to 24 hours unless a warrant is obtained.
Defense attorney Randall Lewis, who represented Terry Bowling, said that if Bowling’s case had gone to trial, he would have fought the evidence, based on the Fourth Amendment.
“There has to be judicial oversight,” Lewis said. “We don’t live in a police state, so look: Why not just get a warrant? That’s all we’re really talking about. When you knock out judicial oversight, you are moving away from democracy.”