Wednesday, June 3, 2009

Carpe GPS (loosely interpreted "Seize the GPS")

"D" poses another interesting question that makes a nice correlary to yesterday's post: "If I am stopped for speeding and am using a GPS, can the officer impound it as a source of possible evidence?"

Once again, as a hypothetical, and to my knowledge of general jurisdictions,(keeping in mind I only am licensed in Wisconsin, and the disclaimers below) the short answer is "yes." But this opens another can of worms. Are there circumstances an officer won't seize a GPS, and why not?

As a matter of fact, some officers lost evidence for failing to seize the GPS in a marine case of suspected drug trafficking. (I am searching for the citation of that case and will update this blog when I find it.) As I recall, the officers had boarded the boat and observed the GPS. One officer noted that either the "track" or the waypoints entered were south of the border with, as I recall, Mexico. However, the officers did not seize the GPS. When testimony about the GPS "observations" was solicited, the court excluded the evidence. As best I recall, the court did not believe that it was appropriate for the officers to comment on what was in the GPS, without the actual GPS unit being taken into possession. I agree with the court. The message for law enforcement: "Carpe GPS" (seize the GPS) if you want what's in it in evidence.

Will he or won't he (or she?)
But wait! You've been stopped by a police officer who has a radar reading that you were speeding. He comes to your car and sees a GPS. I'm guessing at the time of the stop, neither you nor he knows what that GPS will read-you may suspect you weren't speeding, but you don't know. He may believe his Radar is accurate, but he doesn't know.

You'll remember that police can lie about evidence to suspects. However, there is a counter rule that, if asked for, police must turn over all exculpatory evidence-that is, evidence that tends to show you were innocent. Now, the police officer has a decision to make. If he seizes the GPS, and it shows you weren't speeding, what's a judge or jury to believe, radar or GPS? He will likely have to tell you (if you or your lawyer ask in a legally allowed manner.) So, he may not seize your GPS. In addition, he'll know if you download your GPS and it shows you were speeding, in addition to his radar, you'll likely make a deal to pay the ticket.

Of course, this all presupposes the officer will play by the rules, and not erase an exculpatory track, or worse, erase such a track just by failing to turn off the unit or incorrectly downloading it. I do believe that seizing a GPS won't happen unless you are a jerk to the officer and somehow escalate the situation - or you've had so many tickets, the officer is willing to go the extra step to get you off the road.

With the exception of the single case I haven't gotten the citation for yet, this is all my opinion based on how a GPS might factor into a traffic stop. Don't rely on it-see disclaimers below!

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