Tuesday, September 29, 2009

GPS Evidence Legislation/Regulation - Part II

In January 2009, I wrote a post calling for Uniform GPS evidence regulation/legislation. You can find that post here, including my wish list for such regulation.

Since that time, three more cases have gone through state courts, and its my recollection that all three courts called for legislation. Wisconsin's court of appeals allowed warrantless GPS tracking evidence admission, but called for legislation and regulation of the practice. New York required a warrant under the New York State constitution (not under the Federal constitution) in part because of the lack of state regulation of GPS tracking evidence. Massachusetts approved GPS evidence obtained with a warrant, but strictly regulated (by judicial mandate) even warranted GPS evidence collection, again, in the absence of state regulation on the subject, and under the Massachusetts constitution. So, state courts are asking their own legislatures for GPS legislation and regulation.

In addition to my previous post, I will run through the reasons why GPS evidence regulation not only benefits all of society, but specific groups that have an interest in GPS evidence regulation:

Why these groups should support GPS regulation:
1. Law enforcement & prosecutors: I believe most of those who are in law enforcement want to go by the rules, because going by the rules get convictions that are not overtured, and going by the rules gives the best chance that guilty parties are going to jail rather than innocent people. Right now, there are no rules (except the previous caselaw, which, while clear, doesn't provide much guidance) so law enforcement may be tempted to "push the envelope." How many cases could be overturned, and guilty parties released, if the courts suddenly find current police practices too intrusive? However, if state legislatures make systematic, clear rules, law enforcement can use GPS evidence with confidence, without the concern that the state courts will later throw out dozens, or hundreds, of cases where GPS evidence led to a conviction or led to other evidence that led to a conviction.

Prosecutors are being overwhelmed with numbers. GPS evidence, because it is high quality evidence, (See my blog posting on the "Economics of GPS evidence") induces guilty pleas in the guilty very early in the process. This, in turn, cuts down on handling the "iffy" cases at an early stage so prosecutors can concentrate on the important cases, trying more cases and giving better public enforcement.

2. Public and Private Criminal Defense Bar- Public Defenders serve an ever growing number of the citizen accused. Some are guilty of a crime, some are truly innocent, and some have committed a crime, but law enforcement can't prove it. Unfortunately for public defenders, not all the guilty admit their guilt. The truly guilty look a lot like the truly innocent, and their aren't enough resources to take every case to trial. Even if there were, there aren't enough hours in the day for everyone to get an appropriate defense. Accordingly, both the prosecution and the defense engaging plea bargaining. With plea bargaining, innocent defendants might agree to a conviction because of the threat of even worse punishment if the state can somehow make the case. Innocent defendants may not have confidence in their overworked public defenders to win the case even if they are innocent.

GPS evidence will cut down the number of "iffy" cases by showing the guilty high quality, convincing evidence of their guilt. Public defenders then will have more time to devote to those who, on the surface, appear truly innocent, or at least have little evidence against them. Of course, public defenders will never have to see those GPS evidence exonerates, as law enforcement will look at the GPS evidence and conclude there is no use bringing charges against them.

Finally, if public defense investigators can track those who are actually guilty of the crimes that the public defender clients are accused of, they can swiftly bring the guilty to justice while exonerating the innocent.

3. Victims - GPS evidence will jail the true perpetrators of crime, rather than the most convenient person that doesn't have an alibi. Victims do not prosper by the incarceration of the innocent.

4. Courts - Courts are crowded, justice is delayed because of cases with low quality evidence. GPS evidence, by settling cases quickly, determining guilt in a fashion that the guilty can clearly recognize, will cut down on trials and allow the court to sentence the guilty with confidence. Clear guilty verdicts also mean fewer appeals, as who would appeal a clear cut confession and guilty plea based on being caught with GPS evidence?

Of course, the unstated problem is that no one wants a society of police officers who spend their time constantly monitoring the same GPS units, hooked to the same cars, waiting for those they have predetermined are guilty to slip up. I would term such law enforcement practice locational myopia. GPS evidence is a tool, but without safeguards, it will become a crutch, and a weak crutch at that. The safeguards come the form of legislative limitations:

1. How GPS evidence can be distributed and used: The concerns of Washington's Supreme Court are real- GPS evidence can be one of the most powerful tools for blackmail known to man. However, if treated like medical records (equally potent), legislative action can criminalize the distribution of legitimately gathered GPS evidence for illegitimate purposes. The legislature can designate ways GPS evidence can be stored, handled, anonamously warehoused (with identification for possible later use, but only by trusted experts.)

2. How GPS evidence can be gathered (without consent or waiver)- It is clear that police, under the current law, can legally attach tracking devices to cars in public places, if those devices don't have to be connected to the vehicle's electrical system. However, problems will occur if the public start putting GPS devices on cars. Altercations will occur. While the author does favor some form of public ability to GPS track, it should be through a reasonable process - the GPS unit's serial number recorded, the vendor noted, and website (if any) disclosed, a fee charged, and public officer, private investigator or police agent charged with placing the unit, just as we have police or third parties serve documents. Placing a GPS should be licensed, as should retrieval of the data (unless done remotely through a website) to preserve integrity of the process. This would protect the person requesting GPS evidence from charges of "stalking." Then, if someone finds a GPS on their vehicle that is not authorized by law, legislation should provide criminal penalties for the person who placed it.

3. How GPS evidence can be admitted into court - Since GPS evidence is so powerful, the legislature should promulgate chain of evidence rules to make sure the evidence presented is really what it proports to be. GPS evidence that doesn't comply to strict standards should be excluded.

4. Who should be excluded from rules - Some types of GPS evidence should be excluded from the rules, such as tracking one's own property, employer tracking (with prior warning & waivers), parent tracking of minor children, tracking those who have been adjudicated incompetent (for their own safety), or anyone a court determines should be excluded from restrictions (by petition to the court under particular circumstances by ex parte order.) Fraud in such a petition should be criminally punishable, and GPS evidence obtained from a fraudulent petition excluded from admission before the court.

5. How long tracking should be allowed without returning to an authority - GPS tracking of a citizen for an indefinite time frame, while technically possible, is morally repugnant. There are circumstances, however, where the tracking party should be allowed long time periods of GPS tracking to continue to collect the most evidence. For instance, where a short period of tracking discloses a criminal conspiracy, short periods of time might be insufficient to disclose the entire extent of the conspiracy. In such circumstances, extended GPS tracking, including multiple tracking, would allow the fullest disclosure of arrangements that are designed to be secret.

I'd love to be able to provide the perfect blueprint for GPS legislation, but in a democracy, such a blueprint only will come from open hearings involving all the possible interested parties, including potential victims, the public, the investigators, the prosecution and the defense. I hope this opens a dialog and starts a discussion. Waiting for the courts is not an option, as many of the courts themselves recognize they are not the appropriate place for these issues to be regulated and decided.

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