GPS Devices Subject to Fourth Amendment

Errol A. Can, Esq.

The Eleventh District Court of Appeals recently decided State v. Allen, and in doing so, made an interesting connection between today’s current technology and the law. The holding in the case states that, because Allen’s counsel did not move to suppress evidence acquired by way of a GPS device police placed on his wife’s car without a warrant, Allen’s Sixth Amendment right to effective counsel was violated. Before analyzing the Court’s logic and how they reached this holding, we must first turn to the facts of the case.

In late August 2010, a series of burglaries occurred in western Lake County and Eastern Cuyahoga County. Two of these incidents occurred within the City of Lyndhurst, and the Lyndhurst police department conducted an investigation. They spoke with a witness who stated they saw an unfamiliar male walking through the yard of one of the burglarized homes, and he then proceeded to back his car into the driveway. The witness was able to inform the Lyndhurst police of the license plate number, and they later determined it was his wife’s vehicle. The officers spoke with a Cuyahoga County prosecutor, and ultimately decided not to seek a warrant, and instead placed a GPS device on the vehicle without a warrant.

The Lyndhurst police then used the GPS device to track the vehicle for two days, and would notify local police departments of the car and request additional visual surveillance. Officer Rowe of Shaker Heights police department observed the vehicle pulling into driveways, and officers then followed Allen to his apartment complex. Upon receiving confirmation there were break-ins on the street Rowe observed Allen, officers placed him under arrest. Following arrest, the officers looked through the windows of his car and saw numerous items, and on the basis of this they then obtained a search warrant for his apartment and vehicle. A grand jury indicted Allen on ten counts, including burglary, receiving stolen property, engaging in corrupt activity, and possessing a weapon under a disability. At trial, he was convicted on the three counts of receiving stolen property, one count of engaging in corrupt activity, and one count of possessing a weapon under a disability. His counsel filed various pre-trial motions, yet none of them included a motion to suppress the evidence obtained as a result of the GPS device.

On appeal, Allen argued that his counsel’s failure to file a motion to suppress the GPS evidence violated his Sixth Amendment right to effective counsel. The Eleventh District unanimously agreed. In Judge Wright’s opinion for the court, he notes that for an appellant to demonstrate ineffective counsel stemming from the failure to file a motion, the appellant must demonstrate a “reasonable probability but for the omission, the proceeding would have been different.” The court then notes that, at the time of the trial, there was no binding precedent—meaning the Eleventh District, Sixth Circuit, or United States Supreme Court—had addressed the issue (the United States Supreme Court has since concluded in United States v. Jones that a GPS device in fact constitutes a search). Therefore, there was no strategic reason for the motion to suppress to not be filed, and the Court concluded that there was in fact reason to believe the proceedings would have been substantially different if a motion to suppress were filed. As a result, Allen was prejudiced. The Court then remanded the case to proceed with counsel filing a motion to suppress the evidence.

The implications of this decision are clear. First, with the United State Supreme Court in United States v. Jones determining a GPS device in fact constitutes a search for constitutional purposes; police will now have to place GPS devices in accordance with Fourth Amendment protections against unreasonable searches and seizures. That is, police will be forced to either acquire warrants for these devices or place them under the protection of one of the exceptions to obtaining a warrant. This is quite an exciting development, and surely GPS device questions will only continue to be considered by courts as they become more commonly used by police.