The string of drug store burglaries had frustrated police for months when Scottsdale detectives got a tip that a Phoenix man with a long criminal history was the culprit.
They knew that cracking the case would require tracking the suspect’s movements. But since the burglaries typically occurred between 2 and 6 a.m., surveillance would be tough. The streets are quiet in those early morning hours, making it easy for a suspect to spot a tail.
So officers turned to the latest in surveillance gadgetry, a device that uses Global Positioning System (GPS) technology to constantly monitor the movements of a suspect’s car. It allowed them to track the suspect’s movements continuously, or to download data periodically to check where he had been at any given time.
The suspect was indicted on burglary, theft and criminal damage charges in November.
GPS tracking devices are more than just the latest gadget for Valley law
enforcement agencies. They are a tool of the trade that police refuse to talk about.
The devices also are cause for growing concern in some courts which have been asked to decide when such high-tech snooping is an unconstitutional invasion of privacy. That issue is particularly thorny if police attach the tracking devices without a court order. That is standard practice in at least one local police agency when a GPS tracker is attached to the exterior of a vehicle, according to a police source who spoke with the understanding he would not be quoted by name.
Eddward Ballinger, presiding criminal judge in Maricopa County Superior Court, confirmed police don’t always request a court order before attaching the devices.
In September, the Washington state supreme court ruled that using GPS trackers without a court order violates the right to a privacy provision in that state’s constitution. Arizona’s Constitution has identical language.
"The intrusion into private affairs made possible with a GPS device is quite extensive as the information obtained can disclose a great deal about an individual’s life," the Washington court’s opinion states. "If police are not required to obtain a warrant before attaching a GPS device to a citizen’s vehicle, then there is no limitation on the State’s use of these devices on any vehicle, whether criminal activity is suspected or not."
Michael Black, who has spent 20 years as a defense attorney in Arizona, said allowing police to use hightech gear to track an individual’s movements without a court order is a dangerous practice. Without court oversight, police can use the sophisticated technology to follow people who are not suspected of any crime, he said.
"The prospect for mischief is just rampant," Black said.
POLICE WON’T TALK
GPS tracking devices are relatively new to Valley law enforcement agencies, so new that for the most part police are unwilling to talk about them or even acknowledge that they use them.
Lt. Craig Chrzanowski of the Scottsdale Police Department refused to say anything about the GPS devices, even whether the department uses them.
A survey of other East Valley, state and federal police agencies drew much the same response.
"We will not confirm or disclose any of our investigative techniques," said Chandler detective Rob Krautheim. "We do not want the bad guys to know whether or not we have them."
Several of the local agencies tried to discourage the Tribune from writing about the GPS trackers.
"I’m not sure how it is in the best interest of law enforcement to cooperate with the media in a story about the use of this technology," said Sgt. Randy Force of the Phoenix Police Department.
But the technology and the fact that the police are using it is anything but a secret. The companies that make the GPS tracking devices tout their capabilities on their Web sites, complete with photographs and technical data.
Details about a federal program to distribute the tracking devices to local agencies also are posted on the Web site of the Counterdrug Technology Assessment Center, a division of the White House Office of National Drug Control Policy.
The tracking devices used by police are similar to the hand-held GPS units sold in sporting goods stores, said Rafael Anton, deputy director of technology transfer for the federal Counterdrug Technology Center. The difference is they have built-in transmitters so police can download the data from a remote location, he said.
The Counterdrug Technology Center, based in Fort Huachuca, makes the tracking devices and other high-tech gear available to state and local law enforcement agencies at no cost, Anton said. He would not say how many GPS units have been distributed to Arizona agencies.
There are two types of GPS tracking devices available to police. One is a self-contained unit about the size of a pack of cigarettes that can be magnetically attached to the exterior of the car, according to descriptions on the Web sites of manufacturers. The second type, about the same size, needs to be wired to the car’s electrical system.
Using either type of system, police can monitor a vehicle’s movements from a remote location.
Tom Mangan, spokesman for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, said the tracking devices are not used very often. When they are, bureau agents obtain a court order, he said.
Tracking devices rarely are a key element of a case, he said. Before agents would seek to attach a device to a suspect’s car, they would already have compiled evidence of criminal activity, Mangan said.
"It’s not a fishing expedition," Mangan said, adding the trackers might be used to follow somebody who is particularly surveillance conscious. "These are very case-specific types of tools. We treat them that way and respect individual rights to privacy, and we obtain a court authorization before we put these things on."
Steve Werner, deputy chief of intelligence for the Maricopa County Sheriff’s Office, said that agency has been using GPS tracking devices, and their forerunners, for years. While they are not used often, the devices are a valuable tool in certain circumstances, such as following multiple suspects in smuggling investigations, and even in kidnapping cases, Werner said.
Court orders are obtained as a matter of routine before the tracking devices are attached by sheriff’s deputies, Werner said. Needed or not, court orders are obtained to avoid possible legal land mines once the suspect is arrested and the case goes to court, he said.
"You want to use forward thinking because you don’t know what you might find later on," said Werner, who ran the special investigations division that uses the tracking devices until 1999. "When in doubt, get a warrant. When we’re going to prosecute these people, we want to make sure we address all affirmative defenses."
A review of about 1,300 requests for search warrants filed this year in Maricopa County Superior Court shows only nine requested attaching a GPS tracking device. Three of those affidavits are sealed. Of the others, most were from Phoenix police working drug cases.
The Tribune has learned that some agencies do not typically obtain court orders to attach GPS trackers not wired to the vehicle’s electrical system. Federal courts have consistently held that attaching a tracking device to the exterior of a vehicle does not violate the prohibition against unreasonable search and seizure found in the Fourth Amendment to the U.S. Constitution.
The U.S. Supreme Court held in a 1983 case that a person driving on a public street has no reasonable expectation of privacy under the Fourth Amendment.
That case involved old "beeper" technology, wherein a device sent out a homing signal monitored by police. It was the foundation of a 1999 decision by the 9th U.S. Circuit Court of Appeals that specifically allowed use of GPS tracking devices attached to the exterior of the car without a court order. Arizona is in the 9th Circuit and its rulings are binding in the state.
RIGHT TO PRIVACY
But the Washington Supreme Court case was not based on a challenge under the Fourth Amendment. Rather it hinged on whether a court order was required under the Washington Constitution. The right to privacy is implied in the federal constitution, but not specifically stated.
However, the Washington Constitution, like the Arizona Constitution, has a specifically stated right to privacy.
The issue of whether attaching a GPS tracker without a court order violates privacy rights in the state constitution has not been litigated in Arizona, according to lawyers familiar with the issue.
The Washington court noted that the state privacy provision is more protective than the Fourth Amendment to the U.S. Constitution. The strong language in that court’s unanimous decision would likely influence Arizona jurists if the use of GPS systems without a court order is ever tested in Arizona, said Stanley Feldman, who retired last year after 20 years on the Arizona Supreme Court.
The Arizona Supreme Court has taken guidance from the Washington court in particular, said Feldman, now in private practice. That is because when the Arizona Constitution was being drafted, whole sections were taken from the Washington Constitution, particularly those provisions codifying individual rights, he said.
"We’ve always looked at Washington decisions construing their declaration of rights as being of persuasive authority, but not binding in any way," Feldman said.
Judge Ballinger, who said he typically signs two or three court orders for installation of GPS devices per year, agreed the Washington case would likely be cited if the issue was ever raised in Arizona courts.
"If the statutory scheme is similar to ours, a defense lawyer could use the reasoning of that opinion to urge that an identical interpretation be adopted here," Ballinger said.