A blog of the Philadelphia Bar Association’s Criminal Justice Section

Superior Court 2011

By Burt Rose

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A panel of the Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania, Appellant v. Edwin BURGOS, Appellee, 718 MDA 2012, 2013 WL 618794, 2013 PA Super 26 (Feb. 20, 2013). This was a Commonwealth appeal from a suppression order of the Court of Common Pleas of Berks County, Criminal Division CP–06–CR–0002484–2011. The judges were SHOGANLAZARUS and OTT, who wrote the Opinion.

This was a case of first impression. The Superior Court held that the attachment and monitoring of a GPS tracking device to Burgos’s car constituted a “search” under the Fourth Amendment, citingUnited States v. Jones, 132 S.Ct. 945 (U.S.2012)(the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constituted a search),

and that in order for the police to attach and monitor a GPS tracking device to an individual’s vehicle in Pennsylvania, the police must have probable cause to do so, Here, the police officers obtained a court-authorized order, pursuant to 18 Pa.C.S.Section 5761 [as amended, effective December 25, 2012], prior to attaching the GPS device on Burgos’s vehicle. That statute provides as follows:

18 Pa.C.S. 5761

(a) Authority to issue.—Orders for the installation and use of mobile tracking devices may be issued by a court of common pleas.

(b) Jurisdiction.—Orders permitted by this section may authorize the use of mobile tracking devices within the jurisdiction of the court of common pleas, and outside that jurisdiction, if the device is installed within the jurisdiction of the court of common pleas.

(c) Standard for issuance of order.—An order authorizing the use of one or more mobile tracking devices may be issued to an investigative or law enforcement officer by the court of common pleas upon written application. Each application shall be by written affidavit, signed and sworn to or affirmed before the court of common pleas. The affidavit shall:

(1) state the name and department, agency or address of the affiant;

(2) identify the vehicles, containers or items to which, in which or on which the mobile tracking device shall be attached or be placed, and the names of the owners or possessors of the vehicles, containers or items;

(3) state the jurisdictional area in which the vehicles, containers or items are expected to be found; and

(4) provide a statement setting forth all facts and circumstances which provide the applicant with probable cause to believe that criminal activity has been, is or will be in progress and that the use of a mobile tracking device will yield information relevant to the investigation of the criminal activity.

(d) Notice.—The court of common pleas shall be notified in writing within 72 hours of the time the mobile tracking device has been activated in place on or within the vehicles, containers or items.

(e) Term of authorization.—Authorization by the court of common pleas for the use of the mobile tracking device may continue for a period of 90 days from the placement of the device. An extension for an additional 90 days may be granted upon good cause shown.

(f) Removal of device.—Wherever practicable, the mobile tracking device shall be removed after the authorization period expires. If removal is not practicable, monitoring of the mobile tracking device shall cease at the expiration of the authorization order.

(g) Movement of device.—Movement of the tracking device within an area protected by a reasonable expectation of privacy shall not be monitored absent exigent circumstances or an order supported by probable cause that criminal activity has been, is or will be in progress in the protected area and that the use of a mobile tracking device in the protected area will yield information relevant to the investigation of the criminal activity.

Judge Ott observed that these wiretap orders serve as the functional equivalent of traditional search warrants. The Superior Court saw nothing that would support the notion that a GPS device placed onto a vehicle in full compliance withSection 5761 offends the Fourth Amendment orArticle 1, Section 8 of the Pennsylvania Constitution. Because the facts in this case established the requisite probable cause to support the issuance of the order authorizing the mobile tracking device, the lower court order granting suppression was reversed.

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