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State's top court OK's use of secret GPS tracking devices

E-mail|Link|Comments () September 17, 2009 01:44 PM

By John R. Ellement, Globe Staff

For the first time, the state's highest court ruled today that the state Declaration of Rights allows police to break into a suspect’s car to secretly install GPS tracking devices, provided they have a warrant before they act.

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

The court said 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 seizures found 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 only be installed for 15 days. Generally, search warrants are in effect for just seven days.

Three justices – Justices Ralph Gants, Robert Cordy and Margot Botsford – generally agreed with Cowin's conclusion. But they said the SJC must address the issue through the prism of privacy rights 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,’’ Justice Ralph Gants wrote for the group.

“Only then will we be able to establish a constitutional jurisprudence that can adapt to changes in the technology of real-time monitoring, and that can better balance the legitimate needs of law enforcement with the legitimate privacy concerns of our citizens," he wrote.

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 inside 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.