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A federal judge has held that law enforcement authorities can attach a satellite tracking device to a suspect’s automobile without a warrant, a ruling that departs from a New York state court decision. Northern District of New York Judge David N. Hurd cited the U.S. Supreme Court’s 1983 precedent in U.S. v. Knotts, 460 US 276, in finding that since the defendant had no reasonable expectation of privacy there could be no search or seizure within the framework of the Fourth Amendment. Therefore, he reasoned, no warrant is necessary. Hurd’s decision in U.S. v. Moran, 1:03-CR-452, conflicts with a first-impression ruling last year in Nassau County, N.Y., People v. Lacey, 2463N/02, 2004 WL 1040676, as well as state court rulings in other jurisdictions. The question courts are increasingly dealing with is how to respond to law enforcement’s use of global positioning system (GPS) devices to track not only where vehicles are, but also where they have been. To the extent there is a trend, it seems the Fourth Amendment will probably not protect against warrantless installation of a GPS device, but a state constitutional provision may. GPS technology uses satellites to determine locations. Satellites at varying heights submit signals that are picked up by the tracking devices to measure longitude and latitude. A GPS unit, which may be attached to the underside of a vehicle with magnets, can pinpoint the location of a vehicle, revealing not only its location at any particular time, but also the path it has traveled. The case before Hurd stemmed from a lengthy investigation into the Hells Angels in Central New York and their alleged activities in drug trafficking. Authorities attached a tracking device to the vehicle of one of the suspects, attorney Robert P. Moran Jr. of Rome, in Oneida County, N.Y. It showed that Moran, after returning from Arizona, where he allegedly obtained drugs, spent two days driving to various locations in New York. Officials allege that he was making methamphetamine deals with other members of the motorcycle club. In a pretrial motion, Moran’s attorney, Kevin Mulroy of Syracuse, moved to suppress all evidence obtained from the GPS and any evidence gleaned through the warrantless tracking. Mulroy also moved for a hearing under Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1993), to challenge the scientific reliability of GPS technology. Hurd rejected his motions. “Moran had no expectation of privacy in the whereabouts of his vehicle on a public roadway,” Hurd wrote. “Thus, there was no search or seizure and no Fourth Amendment implications in the use of the GPS device.” MIXED DECISIONS Several courts across the country have considered the same question and their decisions have been mixed. In last year’s Lacey decision, Judge Joseph C. Calabrese of Nassau County Court found that under the Fourth Amendment and New York’s counterpart, Article 1, �12 of the state Constitution, the attachment of a GPS device to a vehicle constitutes a search and seizure. “The citizens of New York have the right to be free in their property, especially in light of technological advances which have and continue to diminish this privacy,” Calabrese wrote. “Technology cannot abrogate our constitutional protections.” Washington state’s Supreme Court addressed the issue in 2003 and found that although the installation of a GPS device on a vehicle without a warrant does not violate the Fourth Amendment, it does violate Washington’s constitution. The case was State v. Jackson, 76 P.3d 222. Similarly, the Oregon Supreme Court last year held in State v. Campbell, 306 Or. 157, that a warrant is required under that state’s constitution before a tracking device can be affixed to a vehicle. On the other hand, a federal court in Montana several years ago rejected a Fourth Amendment challenge to the placement of a GPS device on a drug suspect’s pick-up truck. That case was U.S. v. Eberle, 993 F.Supp. 974 (1998). Appearing for the prosecution in the Moran case was Assistant U.S. Attorney David M. Grable.

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