Law Enforcement Use of GPS Tracking Devices

Law enforcement officers have different measures to obtain information about a potential suspect including the use of “slap-on” GPS tracking devices attached to vehicles. Without a warrant however, this practice may constitute a violation of the suspect’s Fourth Amendment rights regarding unreasonable searches.

GPS tracking devices

Photo by: Surrey County Council News

Photo by: Surrey County Council News

The “slap-on” GPS tracking devices are mechanisms that can be placed inconspicuously on the undercarriage of a vehicle allowing police the ability to track the movement and location of said vehicle. These tracking tools allow law enforcement to keep tabs on potential suspects over an extended period of time and can be used to learn the whereabouts of illegal activity.

Protection from unreasonable searches

For several years, “slap-on” GPS tracking devices were under debate, with many claiming they violated a person’s Fourth Amendment rights regarding unreasonable searches. The Fourth Amendment states “The right of the people to be secure ( . . . ) against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ( . . . ). In October of 2013, the U.S. Court of Appeals agreed that GPS tracking devices constituted a “search” and law enforcement must obtain a warrant based on probable cause before placing such devices on a vehicle.

Ankle monitors

Photo by: Washington State House Republican

Photo by: Washington State House Republican

While tracking devices on vehicles were deemed unconstitutional without a warrant, the question was raised whether or not SBM monitors, commonly referred to as ankle monitors should fall under the same scrutiny (Grady v. North Carolina). Each state has their own specific uses for electronic tracking in the form of ankle monitors. Some states use these devices to forever track the whereabouts of convicted sex offenders after they have finished their sentencing. Other states such as Utah permit law enforcement to use ankle monitors on individuals placed on probation. (Utah Code 77-18-1.16)

Grey area

As law enforcement’s use of electronic searches is being evaluated, it is wise to consult with a knowledgeable criminal defense attorney to ensure that your rights are not being violated by the use of tracking devices or other means of technological trespass.

Right of a Probationer to Refuse Consent to Search by Police

Offenders on probation have to follow strict rules to ensure their freedom including permitting AP&P officers to visit them at home and work, conducting searches anytime without a warrant; however the Fourth Amendment protects the probationer the right to refuse consent to search when approached by the police.

Knock and talk

7983552552_c70b8d6c86_z

Photo by: Chris Yarzab

Police officers will often use a controversial investigative technique called a “knock and talk” to gather information and possibly gain admission to a residence without having reasonable suspicion of a crime. This is done simply by knocking on the door and asking to speak to the resident or even asking to come in. The neighboring Ninth Circuit Court of Appeals which governs appeals in the western U.S. stated “T]here is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof — whether the questioner be a pollster, a salesman, or an officer of the law.”

Come on in!

Donald William Fretheim of Cedar City Utah was on probation following a conviction for drug possession and distribution when a pair of officers with the narcotics division used the knock and talk approach at his door. While investigating a drug case in the neighborhood, they found their way to Fretheim’s apartment. The officers asked Fretheim if they could come into his apartment to speak with him to which he agreed and willfully let them enter.

Consent to search

Once inside Fretheim’s apartment, the officers spotted a soft drink can on the ground that appeared to have been constructed into a cheap pipe used to smoke marijuana. When questioned about it, Fretheim admitted it was drug paraphernalia and gave the officers consent to search the rest of his apartment. The consensual search turned up with additional paraphernalia along with marijuana and methamphetamine. After being read his Miranda rights, Fretheim confessed to the police officers that the drugs and paraphernalia were his.

Probation searches apply to AP&P officers only

Consent to Search

Photo by: Hernán Piñera

Since Fretheim was on probation, he assumed he had to comply with the police officers’ request to speak with him, enter his home, and search his belongings. The reason he thought this was possibly due to the declaration in the Probation Standard Conditions issued by the Utah Department of Corrections stating that being a probationer, he must “Permit officers of Adult Probation and Parole to search [his] person, residence, vehicle or any other property under [his] control without a warrant at any time, day or night upon reasonable suspicion to ensure compliance with the conditions of the Probation Agreement.”

Mistakenly waived Fourth Amendment rights

Unfortunately, Fretheim was unaware that although he was on probation, his Fourth Amendment rights still allowed him to refuse consent to search as long as it was not by an AP&P officer. When he permitted officers to not only enter his apartment but to search his home as well, he waived his Fourth Amendment rights to search and seizure. Even though he was unaware of his right to refuse consent to search, he gave his permission so the consent was deemed valid in court.

Know your rights

When police knock at the door it can be intimidating and most residents wish to be compliant with law enforcement. It may seem illegal to deny them entry to a home and feel downright criminal to ignore the door completely. This is why it is important for individuals to understand their constitutional rights, especially during “knock and talk” approaches when the police have no legal reason to be at their home. Unless an officer has a warrant or demands to enter, the occupant has a choice. If an officer asks permission to enter or search the home, the resident has the option whether to even respond; just as they would to a nosy neighbor or a door-to-door salesman. For more information on your Fourth Amendment rights regarding searches and seizures so you can be prepared if law enforcement knocks at your door or for counsel regarding charges, contact a criminal defense attorney.

The Right to Remain Silent – Understanding the Miranda Warning

The Miranda Warning is given to suspects prior to questioning and understanding this right to remain silent is critical to prevent self-incrimination.

“Book ’em Danno”

Photo by: houstondwiPhotos mp

Photo by: houstondwiPhotos mp

The Miranda Warning is heard by thousands of people every day while enjoying their favorite police or detective show on television. During many series’, popular catch phrases are offered following the highly anticipated arrest of a suspect. One such phrase is: “you have the right to remain silent.” Unfortunately, large majorities of the public hear this repeated on a regular basis yet fail to understand it is a warning of their constitutional right to remain silent.

Miranda v. Arizona

The Miranda Warning became the norm following four major cases, one being Miranda v. Arizona, in which suspects were interrogated at length, and as a result offered full admissions to their crimes. Each of the suspects was not made aware before or during their interrogation that they had a legal right to stay silent. The Supreme Court determined that Fifth Amendment rights had been violated, and reversed the ruling on three of the four cases.

1966 Supreme Court Ruling

Photo by: Matt Wade

Photo by: Matt Wade

The Supreme Court stated: “The prosecution may not use statements ( . . . ) stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Also that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would otherwise do so freely.” Thus followed the Miranda warning in which a defendant “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”

Constitutional right to remain silent

Right to Remain Silent

Photo by: Craig Sunter

The right to remain silent spoken of in the Miranda Warning is derived from the Fifth Amendment which stipulates: “[no person] shall be compelled in any criminal case to be a witness against himself”. Therefore, no one has to answer questions which would aide in a criminal case brought against them. Thus if the suspect, whether guilty or innocent, fear they may say something to incriminate themselves, they are allowed by law to not respond to questions asked by authorities. If they do offer information to police openly or during questioning after the Miranda Warning is given, that information and any evidence resulting from it is admissible in court.

Delayed or lack of Miranda Warning

The Miranda Warning is typically given shortly after the handcuffs are placed on a suspect, yet legally can happen any time before the interrogation begins. Interrogation doesn’t always transpire in a cement room with a two way mirror; interrogation can be any questioning done by authorities after an arrest is made. If information is obtained through questioning prior to Miranda Warning, said information, and any evidence obtained because of it has the possibility of being thrown out.

Invoke rights and call an attorney

Photo by: Martin Cathrae

Photo by: Martin Cathrae

While everyone is allowed their Fifth Amendment rights, it is important to let authorities know those rights are being invoked, and that the suspect is not merely playing the silent game. Silence without invoking Fifth Amendment rights may be seen as evidence of guilt. Additionally, once someone has announced they are using their right to stay silent, they should immediately retain legal counsel, another right declared in the Miranda Warning. A reputable criminal defense attorney will aid their client in only offering non-implicating statements while ensuring that no constitutional rights are violated.