Recently, the Pennsylvania Superior Court issued an opinion reversing a decision by the Berks County Court of Common Pleas granting a motion to suppress evidence in a drug-trafficking case involving the use of a GPS tracking device. See Com. v. Burgos, No. 718 MDA 2012 (Pa. Super. Ct., Feb. 20, 2013).
In the fall of 2010, law enforcement agents from the Berks County Detectives (the "County Detectives") arrested eight individuals suspected of marijuana and cocaine trafficking. Two of the individuals turned confidential informants and provided the County Detectives with information about their supplier. The informants identified the defendant's picture and provided information about his activities that was corroborated by recordings obtained in separate court-ordered wiretaps. Based on the foregoing, the County Detectives obtained a warrant to place a GPS tracking device on defendant's vehicle pursuant to Section 5761 of Pennsylvania's Wiretapping and Electronic Surveillance Control Act (the "Wiretap Act"). See 18 Pa. C.S.A. § 5701, et seq.
The County Detectives subsequently tracked defendant to and from Georgia on a drug run. Pennsylvania State Police stopped defendant in Berks County and obtained a warrant to search the impounded vehicle, where they discovered thirty-four plastic bags of marijuana. The Commonwealth charged defendant with a number of offenses including, among other things, possession with intent to distribute.
Defendant filed his motion to suppress evidence, arguing that the County Detectives failed to obtain a warrant supported by probable cause pursuant to the Fourth Amendment. The Trial Court initially denied the motion, but reversed itself after considering a recent United States Supreme Court decision determining that the use of GPS monitoring equipment by state actors constitutes a "search" within the meaning of the Fourth Amendment, and, therefore, requires a warrant supported by probable cause. See United States v. Jones, 132 S.Ct. 945 (2012).
The Commonwealth filed an interlocutory appeal to the Superior Court, arguing that the Trial Court committed an error of law when, among other things, it found that the County Detectives failed to obtain a proper search warrant.
In reversing the Trial Court's decision to suppress the Commonwealth's evidence, the Superior Court found that, although the Fourth Amendment clearly applied to GPS tracking devices, the Commonwealth had lawfully obtained a search warrant for use of the device. The Superior Court noted that the County Detectives obtained a warrant under the Wiretap Act which served as the "functional equivalent" of a search warrant. Therefore, since the County Detectives complied with the Wiretap Act, they necessarily obtained a "search warrant" within the meaning of the Fourth Amendment. The Superior Court further found that the facts supported afinding of probable cause.
Interestingly, the Pennsylvania Legislature amended the Wiretap Act in October, 2012. See Act 202 of 2012. This amendment modified the standard for issuance of a warrant to require "probable cause" rather than "reasonable suspicion." Reasonable suspicion is, of course, a lesser threshold than probable cause for purposes of the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 27 (1968). The prior iteration of the Wiretap Act - the one under which the Trial Court was operating - provided a lesser standard than Pennsylvania's search warrant requirement found in Rule 203 of the Pennsylvania Rules of Criminal Procedure, which provides that "[n]o search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology." See Pa. R. Crim. P. 203.
In the spirit of the Superior Court's decision, we say: "no harm, no foul."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
