Advances blur line between privacy, protection

Courts slow to rule on constitutionality as police quickly embrace new technology

Posted: Monday, April 18, 2011

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.' "


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