SJC OK’s secret use of GPS devices

Rules set for police to plant tracking devices in suspect’s vehicle

By John R. Ellement
Globe Staff / September 18, 2009

For the first time, the Supreme Judicial Court ruled yesterday that the state constitution allows police to break into a suspect’s car to secretly install tracking devices using a global positioning system, provided that authorities have a warrant before they do so.

In a unanimous ruling written by Justice Judith Cowin, the state’s highest court upheld the drug trafficking conviction of Everett H. Connolly, a Cape Cod man who was tracked by State Police in 2004 after they installed a GPS device in his minivan.

The court said that using GPS devices as an investigative tool, which can require police to secretly break into a vehicle to install the device, does not violate the ban on unreasonable search and seizure in the state’s Declaration of Rights.

“We hold that warrants for GPS monitoring of a vehicle may be issued,’’ Cowin wrote. “The Commonwealth must establish, before a magistrate . . . that GPS monitoring of the vehicle will produce evidence’’ that a crime has been committed or will be committed in the near future.

The SJC said the devices can be installed for up to 15 days before police must show why the devices need to remain in place. Generally, search warrants expire after seven days.

William Leahy, chief counsel for the Committee on Public Counsel Service, said the SJC clearly built a new wall of protection for individuals when it comes to government use of electronic monitoring devices.

Leahy said the SJC ruling also means that police must persuade a judge they have probable cause before the GPS devices can be installed. He said that will be a barrier to widespread use by law enforcement.

“It’s good for the public, and it’s good for the rule of law,’’ Leahy said. “I don’t think it is currently a frequent law enforcement tactic. But the important point now is that it is much less likely to become a frequent tactic.’’

Prosecutors agreed with Leahy and welcomed the SJC decision. They said the court spelled out what rules police must follow when they target a suspect, something that had been lacking.

“Police want to follow the rules,’’ said Berkshire District Attorney David Capeless, president of the Massachusetts District Attorneys Association. “They just want to know what the rules are and that they are clear. This is clear.’’

Cape and Islands District Attorney Michael O’Keefe, who prosecuted Connolly, pointed out that his office got a warrant when it went after the drug dealer in 2004.

The court said it upheld Connolly’s conviction because O’Keefe got the warrant.

O’Keefe also said he will tell police chiefs on the Cape that they should get a warrant before they install a GPS device on a vehicle.

“We are very careful about our use of any device that is intrusive of someone’s protected rights,’’ O’Keefe said, adding that law enforcement can readily live with the new rules. “It’s not an overly difficult process to deal with it.’’

Justices Ralph Gants, Robert Cordy, and Margot Botsford generally agreed with Cowin’s conclusion. But they said the SJC should also consider the right of the individual to be free from constant government monitoring.

“Our constitutional analysis should focus on the privacy interest at risk from contemporaneous GPS monitoring, not simply the property interest,’’ Gants wrote for the group.

In 2004 while sitting in his minivan, Connolly sold crack cocaine to an undercover officer in Harwich.

On Aug. 31, 2004, State Police installed the GPS device in Connolly’s van while it was parked at his apartment complex.

When he returned form New York, where police learned he obtained his cocaine, State Police stopped him on Route 6 and seized the van. Inside, they found a ball of cocaine weighing 124 grams.

Connolly was sentenced to 12 to 15 years in state prison by Barnstable Superior Court Judge Gary Nickerson.

“My client lost in this case because police had a warrant,’’ said Connolly’s appellate attorney, Ian Stone of Northampton.