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Univ. of South Carolina School of Law

Saturday, May 10, 2008

Recalculating: Tennessee Police Placed GPS Device On Jeep Of Alleged "Wooded Rapist" Without A Warrant

Tennessee authorities have apprehended Robert Jason Burdick, the man they suspect of being the "Wooded Rapist," who raped 13 women.  The method of apprehending him, however, may jeopardize their case against him.  The 38 year-old Burdick has been charged with four rapes and two attempted rapes and is suspected of committing 13 rapes between 1994 and 2008. Most of those crimes were committed in homes that were near wooded areas, leading to its perpetrator being dubbed the "Wooded Rapist." 

Burdick first became a suspect in these crimes on April 28th after police received a report of a masked man in a subdivision and an officer saw Burdick walking through the neighborhood and getting into a Jeep. The officer questioned Burdick, but he refused a search of his vehicle.  Subsequently, officers, who were conducting 24-hour surveillance of Burdick, placed a GPS tracking device on his Burdick's Jeep even though they did not have a warrant.

Using the device, the officers tracked Burdick for two days, during which they, inter alia, followed him to the restaurant Tee Gees, took silverware, a plate, and a cup he had used, and got samples of his DNA.  Police Chief Ricky Watson has said that the DNA matched evidence discovered at the "Wooded Rapist" crime scenes.

According to Watson, police did not need a warrant to place the tracking device on Burdick's vehicle. He would not say when or where the GPS unit was hidden on the Jeep, but said he it was done in a public place.  "It's absolutely legal to do it," Watson said. "You can't do it when it's on private property."  Defense attorney David Raybin, however, countered this argument by saying that the police might have jeopardized their case by using the tracking device without a warrant, which could be construed as a violation of the Fourth Amendment.  So, who is right?

Well, Watson has some support for his argument.  A defendant seeking the suppression of evidence under the Fourth Amendment must demonstrate a legitimate expectation of privacy in the place or property searched.  Several courts have held that police do not need a warrant before affixing a GPS to a person's automobile because a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. See, e.g., People v. Gant, 802 N.Y.S.2d 839, 846 (N.Y.Co.Ct. 2005).  According to these courts, there is no unwarranted intrusion with a GPS device because the same result could be achieved through police officers conducting a visual surveillance of a defendant's vehicle as it travels on the public highways. See id.

On the other hand, I agree with those arguing that a warrant is required, a position eloquently defended by the Supreme Court of Washington in State v. Jackson, 76 P.3d 217 (Wash. 2003).  In Jackson, the Court concluded:

     "We do not agree that use of the GPS devices to monitor Mr. Jackson's travels merely equates to following him on public roads where he has voluntarily exposed himself to public view.It is true that an officer standing at a distance in a lawful place may use binoculars to bring into closer view what he sees, or an officer may use a flashlight at night to see what is plainly there to be seen by day. However, when a GPS device is attached to a vehicle, law enforcement officers do not in fact follow the vehicle. Thus, unlike binoculars or a flashlight, the GPS device does not merely augment the officers' senses, but rather provides a technological substitute for traditional visual tracking. Further, the devices in this case were in place for approximately two and one-half weeks. It is unlikely that the sheriff's department could have successfully maintained uninterrupted 24-hour surveillance throughout this time by following Jackson. Even longer tracking periods might be undertaken, depending upon the circumstances of a case. We perceive a difference between the kind of uninterrupted, 24-hour a day surveillance possible through use of a GPS device, which does not depend upon whether an officer could in fact have maintained visual contact over the tracking period, and an officer's use of binoculars or a flashlight to augment his or her senses." Id. at 223 (emphasis added).

The Court went on to note that:

     "the intrusion into private affairs made possible with a GPS device is quite extensive as the information obtained can disclose a great deal about an individual's life. For example, the device can provide a detailed record of travel to doctors' offices, banks, gambling casinos, tanning salons, places of worship, political party meetings, bars, grocery stores, exercise gyms, places where children are dropped off for school, play, or day care, the upper scale restaurant and the fast food restaurant, the strip club, the opera, the baseball game, the 'wrong' side of town, the family planning clinic, the labor rally. In this age, vehicles are used to take people to a vast number of places that can reveal preferences, alignments, associations, personal ails and foibles. The GPS tracking devices record all of these travels, and thus can provide a detailed picture of one's life." Id. (emphasis added).

Furthermore, the Jackson opinion doesn't seem reliant on the public/private dichotomy invoked by Watson. See id.  Unfortunately, I have not been able to locate any Tennessee cases on point, but maybe authority supporting Watson's argument is eluding me.  What do readers think?  Should police officers be required to get a warrant before putting a GPS device on a person's automobile?

[UPDATE:  Apparently, police did not put the GPS device on Burdick's Jeep until after they collected his DNA at the restaurant]



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Tracked on May 21, 2008 7:06:36 PM


Where were the victims' rights. And do you know that you have to go through a security company to purchase a GPS tracking unit.....How was it that Jason use to track office vehicles and place cameras all around the office......a little paranoid?

Posted by: Tammy | May 10, 2008 9:32:59 PM

I believe the Supreme Court of Washington is incorrect. It's decision fails on an expectation of privacy analysis. There is no expectation of privacy in the travels of an automobile or in the outside of an automobile. It can be followed to all the different places listed in the decision. Automobiles are commonly parked in public areas, anyone can walk by, look in the windows, and touch them. Anyone can follow them. The court's additional test (likelihood of actually being followed by police for x period of time) has no constitutional basis and is entirely speculative. There is a difference between enhancing one's senses to look inside an autombile (flashlight, for example) and a home (heat-sensing device). There was no search in the constitutional sense. No warrant was needed. This is just another example of courts creating rights where none exist.

Posted by: Tracking devices | May 11, 2008 10:38:07 PM

If someone tacked like a GPS device does, that could be stalking, so not "everyone" could do that.

Posted by: George | May 21, 2008 9:37:56 PM

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