Can police put a GPS tracker on my car and use it to monitor the places I go?

If a GPS tracker is put on my car, will the data be admissible against me in a criminal case? What are some other ways that police and prosecutors use GPS tracking in SC in investigations and criminal trials?

Digital privacy is a fast-changing area of constitutional law and criminal defense, as courts try to answer questions about what data is protected under the Fourth Amendment, when police must obtain a warrant to track a person, and when information obtained through GPS devices is admissible against a person.

Police Must Get a Search Warrant Before Placing a GPS Device

In 2012, the US Supreme Court held in U.S. v. Jones that police cannot place a GPS tracking device on your car unless they first get a warrant based on probable cause.

Using a GPS device to track a person’s movement’s, although police could do it the old-fashioned way through visual surveillance, is a search within the meaning of the Fourth Amendment. That means:

• It must be pre-approved by a search warrant issued by a neutral judge and based on probable cause that evidence of a crime will be found;
• If they do it without getting a warrant, any evidence that they find may be suppressed, or excluded, at trial because of the constitutional violation; and
• If they do not get a warrant, evidence that is later found as a direct result of the GPS tracker can also be excluded as “fruit of the poisonous tree.”

What if police get a search warrant, place a GPS device, and then use the evidence collected to charge a person? Does that always mean they get to use the data in the criminal trial?

Is GPS Evidence Admissible in a Criminal Trial?

In State v. Brown, decided last week, the SC Supreme Court held that GPS tracking in SC is not admissible unless the state can authenticate the records and establish that they fall within a hearsay exception.

That doesn’t mean they can’t use GPS data – it just means that the prosecutor must be prepared to lay a foundation for the information’s admissibility just as with any other type of evidence…

In Brown, the defendant was accused of robbing a Zaxby’s while wearing a GPS ankle monitor.

The state could have used the evidence, which showed that Brown was present at the Zaxby’s just before and during the time of the robbery, except that the prosecutor did not even attempt to lay a foundation for the evidence – the state called a probation agent to the stand, who testified that:

• The probation office uses GPS monitors on offenders;
• The data is recorded and maintained by a third-party vendor who also supplies the equipment; and
• The information is accurate. (“It’s very accurate. We use it all the time.”)

The Evidence Must Be Reliable to Be Admitted at Trial

The Court held that this was not enough to admit the GPS evidence – the state could have, and should have, called witnesses to establish the reliability of the GPS evidence. Also, the GPS evidence was hearsay that is inadmissible unless it falls within an exception.

Hearsay and the Business Records Exception

Testimony about a person’s location based on GPS data is hearsay testimony – someone is telling the jury what someone else (or something else) said about them.

Just because it is hearsay, doesn’t mean it can’t be used, though. There are a number of exceptions to the hearsay rule, and, if the evidence would fit within one of those exceptions, the evidence comes in.

In this case, it would fall within the “business records exception.”

(6) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness; provided, however, that subjective opinions and judgments found in business records are not admissible. The term “business” as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

It doesn’t just come in automatically, though – the state must call the “custodian of records” to establish that the records are kept in the “ordinary course of business…”

The state did not call any witnesses from the vendor who maintained the records and did not offer any testimony as to how the GPS data was collected, stored, and maintained.

Although the GPS evidence should have been excluded, the conviction was still upheld because the Court found that it was “harmless error” (there was enough additional evidence of the crime that the Court did not believe it could have affected the outcome of the trial).

What Other Ways Can Police Use GPS Tracking in SC?

There are several ways that police can use GPS tracking in SC against suspects in criminal cases, including:

• Placing a GPS tracker on a vehicle (after getting a search warrant);
• GPS data from a suspect’s cell phone;
• GPS data from a suspect’s car; or
• GPS data from an ankle monitor.

Ankle monitors are required for many people who are out on bond waiting for trial, for people who have been convicted of sex offenses, and for some probationers or parolees – believe it or not, a surprising number of people commit crimes while wearing GPS devices…

Do Police Need a Warrant for a GPS Device?

Police must get a warrant before placing a GPS tracker on your vehicle (see U.S. v. Jones, above).

What about in other situations?

If you are wearing a GPS monitor because you are out on bail, on probation, on parole, or a convicted sex offender, police do not have to get a warrant before putting the monitor on you, accessing or monitoring the data, or using it against you in court (although the evidence must be authenticated and a foundation must be laid for its admissibility at trial, see above).

The US Supreme Court, in Riley v. California, has held that police must get a search warrant before accessing the contents of your cell phone, however – including any GPS data contained in your phone.

Earlier this year, the US Supreme Court also held that police must get a search warrant before accessing cell tower location data – although not exactly GPS, it’s a similar type of evidence.

Criminal Defense Attorney in Charleston, SC

Sometimes police must get a search warrant before accessing GPS data or placing a tracking device. In other situations, like probationers, sex offenders, or pre-trial release, no warrant is necessary. Even when they do get a warrant, the evidence must be authenticated at trial before it becomes admissible.

If you have been charged with a crime in SC, Charleston defense lawyer Grant B. Smaldone will investigate your case and move to suppress any evidence that was obtained illegally or in violation of your constitutional rights. Call now at (843) 808-2100 or email us through our website to find out how we can help.