Courts Slow to Rule on Constitutionality As Police Quickly Embrace
New Technology

ADVANCES BLUR LINE BETWEEN PRIVACY, PROTECTION

Police peer into homes without residents ever knowing.

They track a person's every movement - driving to work, to the store
and even picking up the kids from school.

Authorities keep tabs on suspects and look to uncover crimes with all
sorts of high-tech gadgets, methods that are legal but may skirt the
constitutional right to privacy, some legal experts say.

Drug agents who suspect someone is growing an indoor marijuana farm
can get warrants to use thermal-imaging cameras - devices that can
literally see through walls to find hot spots, or tell-tale signs of
the high-intensity lights that are essential for indoor pot farms.

"Technology is certainly becoming an asset to law enforcement that is
valuable," said Athens-Clarke police Lt. Mike Hunsinger, commanding
officer of the Northeast Georgia Regional Drug Task Force.

"We're learning to use it where it applies and take advantage of the
opportunities it gives us," said Hunsinger, whose task force
regularly uses thermal-imaging devices during investigations.

The U.S. Supreme Court has ruled that thermal-imaging searches are
legal, as long as police present enough justification to convince a
judge to sign a search warrant.

But Benjamin Pearlman, an Athens defense attorney, is trying to have
thermal-imaging evidence tossed from a client's case because he
believes it's an invasion of privacy that Georgia law doesn't allow.

"There's no specific statute in the state of Georgia enabling police
to do thermal-imaging searches," said Pearlman, an assistant public
defender in the Western Judicial Circuit.

"A search warrant commands an officer to enter onto someone's
premises to search for a specific thing, something tangible that you
can touch, that a jury can examine," Pearlman said.

When it comes to enforcing state law, the state constitution should
trump the U.S. Constitution, the attorney said.

"With thermal imaging, you are actually going inside someone's house,
in a way, into a place where people have an expectation of privacy,"
Pearlman said. "Georgia is a state that has a greater privacy right
under its own constitution, and that's why I don't think it would be
too much of a stretch to say the legislature didn't provide
specifically for this kind of search."

The marijuana farm case Pearlman is representing hasn't gone to trial
yet. A Clarke County Superior Court judge rejected his request to
suppress the thermal-imaging evidence, and the state Court of Appeals
is now considering the defense attorney's arguments.

GPS tracking is another type of spy-like technology police frequently use.

A member of the Northeast Georgia Regional Drug Task Force, for
example, convinced a judge to let him install a GPS device on the car
of a suspected marijuana "master grower" who maintained indoor pot
farms and helped other people to set up their own.

"This surveillance is imperative to identify the location of indoor
marijuana grow houses and to identify co-conspirators," the officer
wrote in a search warrant application.

The warrant a judge signed allowed the officer to secretly install
the tracking device for 60 days, and also to repair it and replace
batteries when needed.

GPS devices have become a constitutional "hot topic," according to
University of Georgia law professor Donald E. Wilkes Jr.

Before the new technology, police used to place homing devices on
cars, but would have to follow in the general vicinity to hear the
"beeps" from the transmitter.

"GPS is wholly a horse of a different color, because it's much more
intrusive than just a beeper," said Wilkes, who has taught criminal
procedure law for nearly four decades. "These new devices allow the
police - without ever moving - to know the exact physical location of
every place the automobile moves over an extensive period of time."

The U.S. Supreme Court has not considered the constitutionality of
GPS tracking devices as a police surveillance tool, though a federal
appellate court last year ruled that search warrants were needed
before authorities could use them for an investigation.

As technology continues to evolve at a quickening pace, police will
push the boundaries of how to use it, but under the watchful eyes of
those who are concerned with preserving the constitutional
protections against unreasonable searches and seizures.

"Technology comes about faster than the legal process can adapt to
it, so many times when we have technology at our disposal, we go with
what's based on current law, practices and procedures in utilizing it
to make sure we're using it both legally and ethically," said
Hunsinger, the drug task force commander.

Wilkes believes technology already has allowed authorities to
overstep their bounds.

"This is an ever-growing threat to our Fourth Amendment rights and
values, and every advance in technology and every new invention of a
device that enhances the ability to spy, monitor, intrude on people
and pierce the zone of privacy is immediately seized upon by police
and put into operation," he said.

"Then, the courts are forced to decide, 'Are we really going to allow
this technique that allows criminals to be caught?' " Wilkes said.
"What we've seen is the courts have incrementally allowed more
invasive searches, and they are reluctant to say, 'This is it; this
is where it stops.' "