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

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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.

Police Entrapment

There’s a thin line between police setting up a legitimate bust to catch a criminal and entrapment. Entrapment is defined as: “the action of luring an individual into committing a crime in order to prosecute the person for it.”

Photo by: Alan Reeves

Photo by: Alan Reeves

Of one’s own accord

Police will regularly use tactics to catch criminals red-handed by providing opportunities for lawbreakers to commit a crime. However, oftentimes these tactics are considered entrapment when officers create a crime and lure others to fall victim to it. When law enforcement officers send in an undercover agent to buy drugs from a known dealer and the suspect receives the funds and pulls the goods from his coat pocket, it is likely that a crime probably would’ve been committed eventually without the law’s involvement. If the undercover officer hands money to a random citizen, asking them to go find locate drugs and the citizen completes the request, this could be a case of entrapment. If without the police’s coaxing the suspect (or victim) would not have committed a crime, then entrapment laws may apply.

Preying on human desires

One confusing area of entrapment is prostitution. Physical intimacy is a human, carnal desire. When someone intentionally seeks a way to fill this desire by paying another human, it is illegal. As long as the suspect is the one to initiate the quest to fulfill their sexual yearnings by either looking for someone working a corner or calling an ad on Craigslist, they are guilty. It may be considered entrapment though for an attractive undercover agent to prey on a lonely chap sitting alone at the bar, lead him back to a room where he is informed directly before the intimate moment that it isn’t free. Had the agent left the man alone in the company of his drink, chances are that he wouldn’t have gone looking for an expensive one night stand.

Entrapment or just fooled

So what constitutes entrapment and what is just bad luck for a would-be criminal? A few reasons that may be considered entrapment are when:

• There is no way the crime would have taken place without police’s involvement.

• An innocent, law abiding citizen was coerced by police into committing a crime they would normally not have done.

• Law enforcement officials use threats of harm to blackmail someone to do something illegal.

• Police repeatedly ask someone to commit a crime that they originally denied wanting involvement in.

If someone unknowingly offers law enforcement official drugs, or otherwise commits a crime willingly in front of undercover agents without inducement, they may have been fooled, yet it is perfectly legal.

Benefits of non-entrapment situations

Very often, stings are set up to catch criminals who are already in the act of committing a crime, or who would be very soon. When police are certain without a shadow of a doubt that a crime will be committed, it can be beneficial to be in a position to catch the guilty parties. This can lessen the aftermath that would be had they let the criminal follow through with their wrongdoing. This can protect innocent bystanders from falling victim to the crime taking place. Unfortunately, law officers don’t have to be certain or even have a hunch of a potential crime to set up a sting operation. As long as they refrain from forcing an individual from falling into their trap, it is not considered entrapment.

Entrapment Defense

Although entrapment does happen, it is often difficult to prove. Even if you may have been induced into committing a crime, if you are proven to be predisposed for that type of a crime, the judge may rule in the prosecutions favor. A criminal defense attorney can enlighten you as to your rights if you feel you’re the victim of entrapment and help to ensure a solid defense.