Last week a new state court rule of procedure, proposed by the Ohio Supreme Court, took effect. The rule gives prosecutors and law enforcement up to 10 days, instead of three days, to install an electronic Global Positioning System (GPS) device to track a person, vehicle, container or package.
GPS is a network of global navigation satellites operated and maintained by the U.S. government. The space-based system was set up to enhance navigational systems. GPS can now provide accurate positional data at any given time, in any weather condition, anywhere on Earth. This data may be freely obtained using a GPS receiver. The technology is so widely available that many new vehicles, and all smartphones, come with GPS for everyday use.
The Ohio rule was adopted with little fanfare. The Ohio Constitution requires that Rules of Practice and Procedure be filed with the General Assembly. The rule could have been blocked if the General Assembly specifically objected to the change. Legislators are not in Columbus and won’t be again until the fall. The rule became effective July 1.
Two years ago, the U.S. Supreme Court ruled that police must obtain a search warrant before attaching an electronic tracking device to a vehicle. Ohio’s new rule complies with the Supreme Court’s directive. However, it provides law enforcement with an advantage the Supreme Court refused to acknowledge.
When the Supreme Court decided United States v. Jones, 565 U.S. ___ (2012), the justices unanimously ruled that the police violated the U.S. Constitution when they placed a GPS device on a suspect’s car and monitored the vehicle’s movements. The police had obtained a warrant before placing the device on Jones’ vehicle.
The Jones case began in 2004. At that time, a law enforcement task force began investigating Jones, a nightclub owner, for alleged cocaine trafficking.
According to Law.com, the task force obtained a warrant and covertly installed a GPS device on Jones’ Jeep Grand Cherokee. However, the task force installed the device one day after the expiration of the warrant. Using information obtained from the device, the task force was able to locate Jones and obtain surveillance photos and videos at a suspected drug house.
Ohio’s new rule extends the life of a warrant. A warrant should be reasonable with regard to time and scope. Ohio has, without much objection, tripled the lifespan of a warrant authorizing a device to track the whereabouts of the target of an investigation.
Franklin County Prosecutor Ron O’Brien told the Columbus Dispatch that the three-day rule has been in effect for about 40 years, starting well before the development of sophisticated electronic devices to track either a package or a vehicle.
“On occasion, once you develop a case, a car goes missing and you can’t find it within three days,” O’Brien said. “Then we would have to go get a new warrant.”
Sixty-five years ago, the U.S. Supreme Court said that the Fourth Amendment doesn’t deny police officers the discretion to draw an inference from evidence; it simply ensures that inferences will be reviewed by a “detached magistrate.”
The detached magistrate’s review is essential to ensure the protections of the Fourth Amendment. A fundamental protection for those suspected of a crime is that a stale — untimely — warrant will not be honored.
The Ohio Supreme Court has now precluded the detached magistrate from determining how much time is reasonable as it relates to carrying out the directives of a warrant. The U.S. Supreme Court was offended by a stale warrant in 2012—Ohio now intends to avoid the staleness issue altogether.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.