Do the cops need a warrant to attach a GPS device to a car?

A recent series of new technology rulings by courts in Ohio have indicated that, so far, Ohio law does not require that police departments obtain search warrants in order to place a GPS tracking device on a suspect's car. With today's technology, a small GPS device can be attached to a suspect's car, and the police can sit at a computer and simply track where that car goes (and record that tracking). Various defendants who have been arrested and prosecuted for crimes which included this type of evidence have moved the courts to suppress that GPS evidence - claiming that the police needed a search warrant before the GPS device is used. Newspapers are following this issue

Normally, police have to obtain a search warrant in order to set up video or audio surveillance of buildings and rooms used by suspects, and they also have to obtain search warrants to monitor phone calls. However, police do not have to obtain search warrants to simply follow a suspect around town - be it on foot or in a car. One Ohio appellate court to address this GPS tracking issue so far has concluded that using GPS tracking technology is more akin to following a suspect on the street rather than eavesdropping on that suspect's conversations with wiretaps or video/audio monitoring. The Court also stated that there is no real "expectation of privacy" on the outside of a car (which is where the GPS device was placed) - even in the undercarriage area of the car.

This issue will obviously have to be decided by the Ohio Supreme Court. However, the highest courts in other states have determined that a warrant is necessary to use GPS technology. Stay tuned.

Driver's License Suspensions

Part of our practice involves advising clients on the driver's license suspensions (from DUIs and other offenses) and assisting those clients on getting their driver's licenses back. In Ohio, there are approximately 40 ways to get your license suspended, including but not limited to DUIs, 12-point suspensions, failure to have or show insurance when pulled over for a traffic offense, and child support arrearages suspensions. Many suburban courts in Cuyahoga County have what are called "diversion" programs aimed at getting unlicensed persons legal again - with the idea being that Ohio wants its drivers to be legal rather than suspended. Many drivers get pulled over without actually knowing that their license has been suspended - and a police officer can pull you over just because your license plate indicates that the owner of the car has a suspended license. In many courts, driving under a suspended license ("DUS") cases are first degree misdemeanor cases which can technically get that driver up to 6 months in jail.

The Cleveland Plain Dealer is reporting that many license suspensions are issued for issues that do not even involve driving. The January 17, 2011 article says that at least 25% of license suspensions have nothing really to do with driving issues.

Make sure that there is nothing out there that could result in your license being suspended and always have your insurance card available to show a police officer if you get pulled over (best to leave it in the car or have it in your wallet).

A NEW "SALIVA" TEST AS A REPLACEMENT FOR THE DUI BAC MACHINE?

Ohio and other states may in the future use "saliva" tests as alternative test (called the the Alco-Screen 02 or the QED A150 Saliva Alcohol Test) for the classic breathalyzer machine that has been long used to test blood alcohol content. Some in the testing scientific community have concerns about the reliability of these tests (some are already being used in the employment screening/monitoring context). The officer would have to swab the saliva out of a driver's mouth, and then apply certain chemicals to see if the swab changes to a certain color.

Ohio already is engaged in some debate over the use of a newly designed breath machine (this new machine automatically does some things that the current machines do not).

Stay tuned.

Federal Jurisdiction vs. State Jurisdiction

Recent events in the media (the recent horrible gun attack on Congresswoman Giffords, a federal judge and others by Jared Loughner in Tucson, AZ) remind us in the criminal justice legal community to revisit those legal events that trigger concurrent jurisdiction of both the federal authorities and the state (or local) authorities. There are somewhat limited times when the federal authorities can get involved in violent crimes that happen in a small geographic area. Usually, the alleged crime must involve "interstate commerce," that is, the geography of the crime must extend across state lines (e.g. kidnapping across state lines, interstate organized crime, or interstate/international drug trafficking) or involve federal officials or a specifically stated type of crime (e.g. internet child pornography [violates both Fed and local law], threatening, inuring or killing a Federal public official, bank robbery, skyjacking, using U.S. Mails for any criminal purpose, and counterfeiting). Federal prosecutors can often invoke this "interstate commerce" requirement by simply proving that a defendant used the mails or national electronic means (phone or email) just once during the course of the conduct which gives rise to the crime. Sometimes conduct can be simultaneously prosecuted by both the federal authorities and state authorities - but most times the federal and state officials simply agree on who will prosecute what portion of the crime. Further, often federal and state authorities put together joint task forces to work on specific areas of criminal activity.

Recent events in Arizona will involve some delegation of who will prosecute what. Most likely the defendant will be prosecuted federally for his tragic actions against the Congresswoman, her staff and the federal judge, while the tragic actions involved against the other victims will involve state prosecution - although nothing is certain at this time. The federal authorities have already filed preliminary federal charges.

Check your homeonwers policy - some conduct may not be covered says the Ohio Supreme Court

In an opinion issued on December 30, 2010, the Ohio Supreme Court clarified an issue that involves how much "intentional" conduct a homeowner's insurance policy might cover when someone is injured by a person covered under the homeowner's policy. Typically, when a person who is covered by a homeowner's policy (e.g. the homeowner or the residents/family members of the home) accidentally injures another person, the homeowner's policy will provide coverage for the injury. However, over the years, the Ohio Supreme Court has issued opinions which held that certain conduct and harm is not covered by a homeowner's policy - specifically murder and child molestation. In the case of Allstate Ins. Co. v. Campbell, the Ohio Supreme Court also held that certain types of other conduct and harm may also be excluded from coverage - specifically if "the insured’s intentional ACT and the HARM CAUSED are intrinsically tied so that the act has necessarily resulted in the harm." This analysis is to be applied by Courts on a case-by-case basis, and the Courts must also look to the specific language of the specific policy. In this case (the facts are somewhat complicated - a juvenile prank gone very wrong) the Ohio Supreme Court found only one policy was specific enough to exclude coverage while the others were not.

Two importatn things to consider here. First, know that certain types of conduct will not get you coverage under your homeowner policy (e.g. intentional harm and most really reckless/stupid stuff), and that your personal assets may be at risk for damages that may result. Second, read your policy - some policies have much broader exclusion language that others, and expect that most insurance carriers will reword all of their exclusion language now that this decision has been issued.