Pot Prosecution Goes Up in Smoke Due to Warrantless GPS Tracking

One of two GPS trackers found last year on the vehicle of a young man in California. Photo: Jon Snyder/Wired.com

A federal judge in Kentucky has ruled that 150 pounds of marijuana collected from a drug suspect’s car is not admissible evidence in court because investigators illegally used a GPS tracker without a warrant to uncover it.

U.S. District Judge Amul R. Thapar has barred prosecutors from using the marijuana stash, allegedly found in the car of 49-year-old Robert Dale Lee last year, because they had not obtained a warrant authorizing the use of the GPS tracker they placed on his vehicle as part of a multi-state drug investigation, according to the Associated Press.

A Kentucky State Police trooper allegedly found the pot when he stopped Lee’s vehicle in September 2011 after Drug Enforcement Agency investigators had tracked it from Chicago to Lexington, Kentucky. The DEA agents had reportedly placed the tracker on Lee’s car after a cooperating witness told investigators that Lee, who had prior convictions around the possession of a gun and drugs, had been transporting marijuana from Illinois to Kentucky.

“In this case, the DEA agents had their fishing poles out to catch Lee,” Judge Thapar wrote in his ruling. “Admittedly, the agents did not intend to break the law. But, they installed a GPS device on Lee’s car without a warrant in the hope that something might turn up.”

The ruling contravenes recent ones in other states, where federal judges in California, Hawaii and Iowa have found that evidence gathered through the warrantless use of covert GPS vehicle trackers can be used to prosecute suspects.

The patchwork rulings underscore a nationwide problem that has arisen in the wake of a Supreme Court decision earlier this year, which found that the use of GPS trackers on a person’s vehicle constituted a search under the Constitution, which would require, in nearly all cases, a warrant.

Because three U.S. District courts ruled prior to the Supreme Court decision that the use of GPS trackers without a warrant was lawful, federal judges in those districts — which cover 19 states as well as Guam and the Mariana Islands — have found that law enforcement agents and prosecutors in their regions can use a so-called “good faith exception” to support warrantless GPS surveillance in pending cases where data was gathered prior to the Supreme Court ruling.

Circuit courts in the 7th (covering Illinois, Wisconsin and Indiana), 8th (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) and 9th (covering Alaska, Arizona, California, Guam, Hawaii, Idaho, the Mariana Islands, Montana, Nevada, Oregon and Washington) all ruled prior to the Supreme Court case that warrantless GPS tracking was legal.

Last month, U.S. District Judge Mark Bennett in Iowa ruled (.pdf) that the GPS tracking evidence gathered by DEA agents against a suspected local drug trafficker prior to the Supreme Court ruling could be submitted in court. He made the ruling under a so-called “good faith” exception, because the agents were relying on what was then a binding 8th U.S. Circuit Court of Appeals precedent that authorized the use of warrantless GPS trackers for surveillance in Iowa.

Judges in two other GPS cases in California and Hawaii, both in the 9th Circuit where a precedent ruling exists, asserted the same “good faith” exception in March.

The exception comes from a 2011 Supreme Court case, Davis v. United States (.pdf), which allows a good-faith exception for searches that reasonably relied on binding precedents that were later found to be faulty.

But luckily for Lee, Kentucky, where he is being prosecuted, falls in the 6th circuit (.pdf), which had no such ruling on GPS prior to the Supreme Court case.

According to court documents, a DEA task force officer placed the GPS tracker on Lee’s car on Sept. 2, 2011 while the suspect was meeting with his federal probation officer in London, Kentucky. Three days later, DEA agents noticed that Lee had driven to Chicago and were tracking him as he returned to Kentucky. The officer tipped off a state trooper that Lee was likely transporting marijuana.

The trooper stationed himself with a drug-sniffing dog along the highway Lee was traveling, and pulled the suspect over under the premise that he was driving without a seat belt. When Lee consented to a search of the car, the drug-sniffing dog honed in on the drug stash.

Judge Thapar wrote that the DEA’s use of the GPS tracker was unlawful because the investigator had no binding court precedent he was relying on to use the device.

“Without GPS tracking data, the DEA agents would not have known that Lee traveled to Chicago (to pick up the drugs), that he was returning to Kentucky along I-75, or his exact position,” Thapur wrote.

Law enforcement’s use of GPS vehicle trackers came under increased scrutiny last year when the U.S. Supreme Court took up the case of United States v. Jones, which also involved the use of GPS trackers in a drug investigation.

Antoine Jones was given a life sentence by a lower court for drug trafficking, based in part on evidence gathered with a GPS vehicle tacker placed on his Jeep. A federal appeals court in Washington, D.C., later ruled that collecting data from the GPS device amounted to a search, and therefore required a warrant. Prosecutors argued that the device only collected the same information that anyone on a public street could glean from physically following the suspect. But the appellate court judge wrote in his ruling that the persistent, nonstop surveillance afforded by a GPS tracker was much different from physically tracking a suspect on a single trip.

The Obama administration called the appellate decision “vague and unworkable,” and petitioned the Supreme Court to rule that authorities did not need to obtain a warrant to use the devices. The Supreme Court justices ruled earlier this year in January that GPS tracking of a suspect’s vehicle qualified as a search under the U.S. Constitution, but stopped short of ruling that authorities needed to obtain a warrant every time they used a tracker.

The justices said that law enforcement authorities might need a probable-cause warrant from a judge, but did not say definitively whether such a search was unreasonable and required a warrant. Most legal experts, however, say the implication is that the use of such devices would require a warrant on any investigations going forward.