Our criminal defense law firm based in Philadelphia represents a large number of individuals charged with crimes pertaining to the possession with the intent to deliver large amounts of illegal drugs and narcotics such as crack cocaine, heroin, and marijuana. Many of these cases begin with investigations which make use of GPS tracking devices installed by police investigators. GPS or Global Positioning Systems, record the movements of vehicles and it’s important to keep in mind that police may only install such a device if they have probable cause. Any GPS device is subject to the Wire-Tapping and Electronic Surveillance Control Act 18 Pa. CSA § 5701.
The Evidentiary Standard Police Must Satisfy to Install a GPS Device
The standard used to determine whether or not probable cause exists for a court order authorizing the interception of telephone communications and/or the installation of a GPS device is the same standard used to determine if a search warrant should be issued. Courts will evaluate probable cause based on a totality of the circumstances analysis. This means that the judge, reviewing an application for a GPS or tracking device, must make a practical, common sense decision whether, given all the circumstances set forth in an affidavit, which include the veracity and basis of the knowledge of person supplying information that there is a fair probability that contraband or other evidence will be found in a particular place.
Keep in mind that an affidavit of probable cause does not require police to show any particular criminal activity and a court must limit its inquiry to only the information provided within the four corners of the affidavit submitted to the court and not any other outside information.
How a judge will evaluate police’s application for a GPS tracking device
In reviewing an application, a court will consider such evidence as confidential informant, statements which are corroborated by police surveillance, as well as information gathered based on previous wire taps or other informant interviews. Remember that any search done in Pennsylvania without a warrant is deemed to be unreasonable and neither Pennsylvania nor New Jersey permits the installation of a GPS device without a warrant. In other words, there is no such thing as a warrantless search involving a GPS device in either the Commonwealth of Pennsylvania or the state of New Jersey.
What to do if your criminal case involves a GPS tracking device?
If your criminal case involves the use of a GPS device it’s important that your attorney review the issue of illegal search and seizure and if necessary submit a Motion to Suppress any evidence found as the result or through the use of a GPS device. Keep in mind that the evidentiary burden of proof at a Motion to Suppress is much less than that at trial. At a criminal trial the burden of proof is guilt beyond a reasonable doubt, whereas at a Motion to Suppress it is “by the preponderance of the evidence”.
Your Expectation of Privacy & GPS tracking devices
It’s also important to remember that a person only has a Constitutional Right against illegal search and seizure if the person asserting the right has an expectation of privacy in the item searched. For example, there is an absolute expectation of privacy in one’s home and in a person’s car, even though the expectation in a car is much less than in one’s residence. If a person can’t show that he or she has a privacy right in a property, there is no Fourth Amendment violation issue (Article 1, Section 8 of the Pennsylvania Constitution or Article 1, Paragraph 7 of the New Jersey Constitution).
While a person has a right to assert a Fourth Amendment issue in any possessory offense (illegal drugs or guns), this person will be unsuccessful if they cannot demonstrate through their attorney a privacy interest in the area searched (expectation of privacy). For example, if a person can neither assert a property right that was infringed upon by the government nor demonstrate a legitimate expectation of privacy in a vehicle owned by a third party, they would not have any right to question the use of a GPS device, even if the device itself was illegally placed (bad search warrant or no search warrant at all.) The mere fact that a person uses a vehicle during a controlled drug buy is insufficient evidence to demonstrate a possessory interest or a reasonable expectation of privacy to have standing to challenge an illegal search and seizure issue.
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