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Big Brother and the 8th District

Back in 1983, in US v. Knotts, the Supreme Court upheld a search in which the police had put a beeper inside a five-gallon drum of a chemical used to manufacture illegal drugs, and then used it to track the movement of the drum to a cabin, where a search warrant revealed a drug laboratory.  The defendant argued that upholding the search would lead to the result that "twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision," but the Court rejected this:  "if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable."

For Kenneth Jefferson, that time has come.

Police were investigating a series of break-ins at various businesses, and one day an officer stopped Jefferson's car for suspected drunk driving.  Jefferson wasn't drunk, but the cop saw some loose change and a tire iron with a pry bar in the back seat, so he notified the Sheriff's Office that Jefferson might be a suspect.  The next day, detectives put a GPS tracking device on the undercarriage of Jefferson's car while it sat in a parking lot, and used it to generate "stop reports," which were produced anytime Jefferson stopped for more than four minutes.  The program also provided precise coordinates of the car's location, and maintained a full record of the car's movements.  Sure enough, after about four days, it matched up a stop of the car to two places at the times break-ins occurred, and on that basis, Jefferson was arrested, and numerous incriminating items were found in his car.

Last week, in State v. Jefferson, the 8th District reversed the conviction, finding that his attorney was ineffective for failing to file a motion to suppress the evidence obtained by the GPS device.

The majority opinion does an excellent job tracking -- no pun intended -- the law in this area, relying heavily on the DC Circuit's decision in US v. Jones, which I discussed here.  (The opinion refers to it by the co-defendant's name, Maynard.)  The argument for the use of these devices is that they do nothing more than reveal what the defendant willingly exposes to public view anyway:  one has no reasonable expectation of privacy in one's movements on a public roadway.  Jefferson quotes Jones' rejection of this view, especially its analysis of what is gleaned from knowing the totality of one's movements:

As with the 'mosaic theory' often invoked by the Government in cases involving national security information, 'What may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene.' * * * Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.  * * * A person who knows all of another's travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all such facts.

The problem with the majority opinion in Jefferson is noted by the dissent.  Ineffective assistance of counsel is a two-prong test:  a defendant must establish both deficient performance and prejudice.  The prejudice in failing to file a motion to suppress is shown only if there's a likelihood that the motion should be granted.  While the DC Circuit found the use of the GPS in Jones was improper, the dissent argues that Jones is an "outlier":  the 5th, 7th, 8th, and 9th Circuits have come to a contrary conclusion, as did "the only Ohio case on point," the 12th District's decision last year in State v. Johnson

That latter claim is incorrect; earlier this month, in State v. White, the 5th District also concluded that the warrantless use of a GPS device was impermissible.  White also demonstrates the absurdity of the argument that the use of the GPS doesn't invade privacy because the police could achieve the same result simply by following the vehicle:  the police planted the device after they attempted to follow the vehicle for three days, and not only observed no criminal activity, but found that "monitoring and tracking the vehicle was a difficult task due to the mobility of the vehicle."

Still, the dissent has a point, and may not have even needed to concede the issue of deficient performance:  given the state of the law, should counsel have had to anticipate that a court would rule in his favor on the issue?  Back when Apprendi and Blakely were first floating around, there were a number of defendants who made ineffective assistance claims based on their lawyer's failure to raise those issues, and the courts universally rejected them, holding that it wasn't deficient performance to fail to anticipate that sort of change in the law.  That's a stretch here, though; given the state of the law, the notoriety of this issue, and the fact that it offered about the only way out for Jefferson, it should have been raised.

Jefferson also poses an interesting question:  is it now the law in the 8th District that police need a warrant to plant a GPS device?  If you're going to say that a lawyer was ineffective for not filing a motion to suppress because it would've been granted, it's hard to conclude that it isn't.

The State's almost sure to appeal this holding, but the ultimate decision is going to be made at a much higher pay grade:  the US Supreme Court has granted cert in Jones, and the case is scheduled for argument in November.  Tomorrow, we'll talk about how that's shaping up.

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