Massachusetts High Court Approves Secret Use of GPS Tracking Devices

In a breakthrough ruling for police and prosecutors, the state’s highest court has ruled that the Massachusetts Declaration of Rights (embodied in the state Constitution,) permits police to secretly break into a suspect’s car for the purpose of covertly installing a GPS tracking device.

Not only is the ruling a major boost to police investigators, but the Supreme Judicial Court’s (SJC) ruling was unanimous – which is somewhat of a rarity at the SJC. The decision, written by Justice Judith Cowin, upheld the drug trafficking conviction of one Everett H. Connolly, of Cape Cod. Connolly was convicted of a drug trafficking charge after he was tracked by State Police and found to be in possession of an amount of cocaine weighing 124 grams. The State Police were able to track Connolly, because in 2004, while in his vehicle, Connolly sold crack cocaine to an undercover police officer in Harwich. Police did not arrest Connolly in that undercover operation, but instead applied to a judge for a warrant to place a GPS tracking device in his van, to track his movements further. On Aug. 31, 2004, State Police installed the GPS device inside Connolly’s van while it was parked at his apartment complex.

When Connolly returned from driving to New York – where police had learned he obtained his cocaine – State Police tracked him on Route 6, stopped him and seized the van. Inside, they found the cocaine. After trial on the drug possession and trafficking charges, Connolly was sentenced to 12 to 15 years in state prison by Barnstable Superior Court Judge Gary Nickerson. On appeal, the court ruled that police use of GPS devices as an investigative tool – even when secretly breaking into a vehicle in order to install the device – does not violate the ban on unreasonable searches and seizures found in the Massachusetts Constitution. The ruling, however, requires that two conditions must exist before a GPS device could be secretly placed in someone’s vehicle: “The Commonwealth must establish, before a magistrate… that GPS monitoring of the vehicle will produce evidence” that a crime has been committed, or will be committed in the near future; and 2) The tracking units can only be installed for 15 days. By contrast, in most other matters, search warrants remain in effect for just seven days.

Judges, especially on an Appeals Court or the Supreme Court, can often arrive at the same decision through different legal reasoning, and this case was no different: Three of the SJC justices – Justices Ralph Gants, Robert Cordy and Margot Botsford –affirmed Cowin’s conclusion. But they said the SJC must address the issue through the prism of privacy rights of the individual to be free from constant government monitoring, and not from a property interest (i.e., the vehicle as personal property belonging to the suspect.) Speaking for these three justices, Justice Ralph Gants wrote, “Our constitutional analysis should focus on the privacy interest at risk from contemporaneous GPS monitoring, not simply the property interest. Only then will we be able to establish a constitutional jurisprudence that can adapt to changes in the technology of real-time monitoring, and that can better balance the legitimate needs of law enforcement with the legitimate privacy concerns of our citizens.”

So, police and prosecutors’ tools are rapidly expanding into the digital age and the 21st century. Some people see this as “Big Brother” becoming a reality and feel that when the police can secretly track your movements through covert placement of an electronic tracking device, as a society we aren’t far away from an Orwellian world. Some people think this is a wise decision, giving police and prosecutors the modern tools they need to keep dangerous people off the streets. As a Boston criminal defense attorney, I understand civil libertarians’ wariness of this ruling. However, as long as the ruling’s dual requirements are met that: 1) Police must obtain a warrant in advance of placing a GPS device by first convincing a judge or magistrate that a crime has been committed or will be committed; and 2) That the warrant (and hence use of the GPS device) are only valid for 15 days, then I think this ruling constitutes a fair balance between the competing legal interests involved.

Let’s hope that this turns out to be so.

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