Delaware Courts:

POLICE USE OF TRACKING DEVICES AT ISSUE

WILMINGTON -- A criminal case making its way to the Delaware Supreme
Court could help define personal privacy and set limits on how far
police can go when using electronic surveillance in Delaware and
perhaps across the United States.

The American Civil Liberties Union this week filed a brief in
Delaware v. Michael D. Holden, urging the state justices to uphold a
lower court ruling that essentially bars police from using Global
Positioning Systems (GPS) to track people without a court-approved warrant.

Holden, 28, of Newark, was suspected of dealing drugs and was
electronically tracked for more than 20 days by police without a
warrant, ending with his arrest after police discovered 10 pounds of
marijuana in his vehicle after he visited a suspected drug
distribution house. The judge in the case tossed out the drug
evidence, ruling that the lengthy warrantless tracking of Holden
amounted to an illegal search.

In its brief, the ACLU notes the U.S. Supreme Court has not yet ruled
on this issue and legal experts agreed the state case could be part
of a growing national debate over the reach of technology versus the
boundaries of privacy.

The case will likely turn on the concept of the "reasonable
expectation of privacy," said defense attorney and former prosecutor
Peter N. Letang.

With GPS devices in nearly all cellphones and in many cars and with
the popularity of online applications with which users broadcast
their locations to others in real time, Letang and others said the
definition of what is private and what is public may have shifted.
They also believe the permission that consumers have to give
companies such as Apple and Google to use their equipment makes GPS
tracking more common and potentially available to police if they
subpoena those companies.

"It is tough to carve out an expectation of privacy when everyone
else knows where you are," Letang said.

Widener University associate professor Wesley Oliver said companies
like Apple and Google are using GPS information collected from phones
and applications to make a profit. "They are selling information
about your movement to advertisers," he said, who in turn may use it
to send information to you about sales or cheap gas in your area.

"And if Apple can use my movement to sell me gas, why can't the
government [use similar information] to break up drug rings or find
terrorists?" Oliver asked. "This stuff cuts both directions."

Legal experts and courts that have ruled on the issue are divided.

"The difference is -- it is the state in one case," said defense
attorney Joseph A. Gabay, "and it is Google [or some other
corporation] in the others. You can sue Google for invasion of
privacy but there is no constitutional remedy."

Oliver said without court-imposed restraints, detailed GPS
information could be used to track a candidate for political office
and conduct "opposition research" by seeking things like visits to
strip clubs, clinics or a mistress's home and be well within the law.

"That is what makes this a hard question," Oliver said.

In the Holden case, Superior Court Judge Jan R. Jurden sided with
Holden attorney John Deckers in concluding that a drug unit's use of
a tracking device attached to Holden's vehicle amounted to an
unreasonable search and invaded Holden's privacy.

Police used the GPS device to follow Holden's movements in a white
1998 Lexus from Feb. 5 to Feb. 24, 2010, and then moved in when the
device showed he was headed to a house suspected of being a drug
distribution point in Carneys Point, N.J.

After witnessing an exchange of duffel bags, police again relied on
information from the GPS device to determine Holden was crossing the
Delaware Memorial Bridge into Delaware. Holden was then pulled over
and police found a bag with 10 pounds of marijuana in the car. Holden
was arrested and charged with trafficking.

Jurden agreed with prosecutors that police had the ability to follow
a suspect -- without a warrant -- as he or she drives from place to
place in plain view. However, she said the unblinking,
round-the-clock supervision provided by a GPS device is different.

"The advance of technology will continue ad infinitum," she wrote in
December. "An Orwellian state is now technologically feasible.
Without adequate judicial preservation of privacy, there is nothing
to protect our citizens from being tracked 24/7."

Deckers and the ACLU argue in court papers filed with the Delaware
Supreme Court that Jurden got it right.

"This case is especially important because of its impact on the
privacy rights of all Delawareans, including the vast majority who
will never be charged with a crime," wrote ACLU attorney Richard
Morse and attorney Beth Moskow-Schnoll in their brief.

Deputy Attorney General Paul R. Wallace argued the case is a
conventional police surveillance matter.

Wallace wrote that police were acting on information supplied by
informants about Holden and that the GPS tracking device was only
used as an aid to help officers do their job, like "binoculars or a
flashlight."

Wallace said the device only tracked Holden's car as it moved along
public roads, as could easily be observed by an undercover officer
following in a police car. And while the device was in place for 20
days, it only came into play in the 24 hours leading to Holden's
arrest after police received specific information that Holden was
about to engage in a drug transaction.

Legal experts said the test of whether this case will go to the U.S.
Supreme Court will be in how the Delaware Supreme Court frames its ruling.

If the state justices limit their ruling -- as Jurden did -- to the
protections contained in the Delaware Constitution, then the case
will not go to the U.S. Supreme Court, said James Diehm, a professor
at Widener University and a former federal prosecutor.

However, state prosecutors argue in court papers that the privacy
protections in Delaware law and the Fourth Amendment are virtually identical.

And beyond that, Oliver said if the Delaware Supreme Court echoes
Jurden and uses the same kind of hot-button words in its ruling,
"That does get people more interested."