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Joseph Hegedus

Brady v. Maryland


By:  Joe Hegedus, Esq.


Lately, it has come to my attention that, apparently, employees of certain prosecutor’s offices are advising law enforcement employers that there is a mandatory obligation to immediately disclose personnel records of peace officers to defendants in criminal cases.  Depending on the jurisdiction, I have heard this obligation defined in terms that typically appear to be all encompassing.[1]

However, a review of the actual law applicable in cases of this nature, seems to paint a slightly different picture.

The seminal case in this area of the law is Brady v. Maryland, 373 U.S. 83, 87 (1963), where the United States Supreme Court held that:

the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

(Emphasis supplied).

In United States v. Bagley, 473 U.S. 667, 669 (1985), the Court revisited its decision in Brady, supra., by stating:

[1A] In Brady, v. Maryland, 373 U.S. 83, 87 (1963), this Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.”  The issue in the present case concerns the standard of materiality to be applied in determining whether a conviction should be reversed because the prosecutor failed to disclose requested evidence that could have been used to impeach Government witnesses.

The Court in Bagley then amplified its decision in Brady, supra., as follows:

The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused and “material either to guilt or to punishment.”  373 U.S., at 87.  See also Moore v. Illinois, 408 U.S. 786, 794-795 (1972).  The Court explained in United States v. Agurs, 427 U.S. 97, 104 (1976):  “A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.”  The evidence suppressed in Brady would have been admissible only on the issue of punishment and not on the issue of guilt, and therefore could have affected only Brady’s sentence and not his conviction.  Accordingly, the Court affirmed the lower court’s restriction of Brady’s new trial to the issue of punishment.

The Brady rule is based on the requirement of due process.  Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.  Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive that defendant of a fair trial:

“For unless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor’s constitutional duty to disclose. . . .”

“. . . But to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.”  427 U.S., at 108.

Bagley, at pp. 675, 676, emphasis supplied.

The Bagley Court then further explained that impeachment evidence, as well as exculpatory evidence, both fall within the disclosure requirements of Brady.[2] See Giglio v. United States, 405 U.S. 150, 154 (1972).

The Bagley Court continued by reiterating that regardless of whether the suppressed evidence is exculpatory or utilized for impeachment purposes, it is only subject to disclosure if it is material to guilt or punishment and “[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.  A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.”  Bagley, supra., at pp. 681-682.

Consequently, as emphasized by the Ohio Supreme Court, “[s]ince Bagley, the “reasonable probability” test has been held to apply in all cases where the defense alleges the prosecution improperly suppressed exculpatory evidence.”  State of Ohio v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988).

For the purposes of this article, then, the question is: do the Brady and Bagley disclosure requirements apply as broadly to disciplinary investigations contained in personnel files as is being demanded by prosecutors in certain jurisdictions?

In my opinion, the answer is probably not.

For example, in United States v. Driscoll, 970 F.2d 1472 (6th Cir. 1992), the Sixth Circuit Court of Appeals considered a case where a defendant challenged his felony convictions, inter alia, on the basis that the Court’s denial of his motion for disclosure of the officers’ personnel files, in an effort to find information that cast doubt on their credibility, violated Brady v. Maryland.

In rejecting this argument, the Court indicated:

Mr. Driscoll offered no support for his contention that personnel files might contain information important to his case.  “The Supreme Court has made clear that the Brady rule is not an evidentiary rule which grants broad discovery powers to a defendant and that ‘there is no general constitutional right to discovery in a criminal case.’”  United States v. Todd, 920 F.2d 399, 405 (6th Cir. 1990) (quoting Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 845, 51 L. Ed.3d 30 (1977)).  “The Court also has made it clear that while the Brady rule imposes a general obligation upon the government to disclose evidence that is favorable to the accused and material to guilt or punishment, the government typically is the sole judge of what evidence in its possession is subject to disclosure.”  United States. v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988).  Furthermore, “the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.”  United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 2399-2400, 49 L. Ed. 2d 342 (1976).

In light of these principles, we agree with United States v. Andrus, 775 F.2d 825 (7th Cir. 1985)., in which the Seventh Circuit rejected a defendant’s argument that he should have had access to material from testifying officers’ personnel files that might have been used for impeaching them.

“Mere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial.  A due process standard which is satisfied by mere speculation would convert Brady into a discovery device and impose an undue burden upon the district court.”

Sometime later, the United States District Court for the Southern District of Ohio considered a similar request by a defendant, in a discovery motion, which sought to generally examine employment information of all testifying witnesses.  In denying the motion, the court relied on Driscoll, supra., by stating:

With Item 8F, Defendant does not ask for the disclosure of any particular information; rather, he requests that the Government examine the personnel files of all its testifying witnesses, including law enforcement officers, to ascertain whether those files contain any evidence of perjurious conduct, dishonesty or any other material that is relevant to impeachment.  The Court will decline to order the Government to conduct the requested examination of personnel files.  Although the Ninth Circuit has held that the Government has an obligation to examine the personnel files of testifying law enforcement officials in order to comply with its obligations under Brady, see United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), the Sixth Circuit implicitly rejected Henthorn in Driscoll, supra.  Therein, the Sixth Circuit concluded that, under Brady, the Government was not obligated to produce personnel files of its testifying agents, based solely upon the defendant’s speculation that those files might contain impeaching information.  In support of that conclusion, the Sixth Circuit relied, inter alia, upon United States v. Andrus, 775 F.2d 825 (7th Cir. 1985), wherein the Seventh Circuit concluded that the defendant’s speculation that personnel files might contain impeaching information did not impose upon the District Court the obligation of conducting an in camera review of those files, since Brady was not a discovery device.  The dissenting opinion in Driscoll argued that the Sixth Circuit should decline to follow the Seventh Circuit’s decision in Andrus and should adopt the approach of the Ninth Circuit in Henthorn, a case which was described by the dissent as being “on all fours.”  970 F.2d at 1489.  The fact that this Court will not require the Government to conduct a review of the personnel files of its testifying witnesses does not, however, relieve it of its obligation under Brady of disclosing impeachment material of which it becomes aware, including any such material contained in the personnel files.

United States v. Floyd, 247 F.Supp.2d 889, 901 (S.D. Ohio, 2002).

More recently, another District Court, within the Sixth Circuit, followed Driscoll by reiterating that “a speculative, nonspecific claim that an officer’s personnel file might contain material helpful to the defendant is not sufficient to entitle the defendant to the officer’s file. . .”

United States v. Johnson, 2010 U.S. Dist. Lexis 94513 (W. D. Tenn. 2010).  See also People of the State of Michigan v. Rawls, 2007 Mich. App. Lexis 760 (Court of Appeals of Mich. 2007).

Finally, in State of Ohio v. Widmer, 2013-Ohio-62; 2013 Ohio App. Lexis 44 (12th App. Dist. 2013) the Ohio Court of Appeals for Warren County considered a claim by a defendant that the prosecution violated Brady v. Maryland by not disclosing an administrative investigative report that indicated that one of the investigating police officers had allegedly lied about some of his credentials, listed in an employment application and resume’ letter, more than ten years prior to the relevant murder investigation.

After a comprehensive review of Brady and its progeny the Widmer Court observed:

It is one thing to require prosecutors to inquire into whether the police have discovered exculpatory or impeachment evidence during the course of the investigation.  It is quite another to require them, “on pain of possible retrial, to conduct disciplinary inquiries into the general conduct of every officer working the case.”  Robinson, 627 F.3d at 952.  Here, Braley’s alleged misconduct is so unrelated to his role in the investigation and to the state’s case against Widmer, that it is difficult to burden the prosecution with an obligation to discover this evidence.

(Id., 2013 Ohio App. Lexis 44 at p. 54).

Further, the Widmer Court explained that “cross-examining Braley on the employment applications and the other information in the DD&M report would have only created a dispute about purely collateral matters, i.e., whether Braley fabricated various credentials over ten years ago for jobs unrelated to his position as lieutenant detective.  Braley was not on trial for fraud or misconduct, Widmer was on trial for murder, and examining this part of Braley’s past would only lead to surprise, jury confusion and a waste of time, which are the very reasons for the rule against impeachment on collateral matters.”  Id. at p. 47.

The Widmer Court then denied the defendant’s claim that a Brady violation occurred by concluding:

After a thorough review of the record below, we find that even if the allegedly suppressed evidence in the DD&M report could have helped the defense to cast some doubt on the police investigation under Kyles, it is not enough to establish materiality.  Id. at 109-110 (“[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense”).

Moreover, the suppressed information was not material impeachment evidence.  See Id. at 676-677; United States v. Jones, 399 F.3d 640, 648 (6th Cir. 2005).  Generally, impeachment evidence constitutes Brady material when the evidence relates directly to a key witness’s veracity on matters about which he or she has testified at trial.  See Giglio, 405 U.S. at 154.   However, as we discussed earlier, Braley was not a key witness, and the allegedly suppressed evidence pertained only to collateral matters that had nothing to do with Braley’s trial testimony.  See, e.g., People v. Fernandez, 249 A.D.2d 3, 5, 670 N.Y.S.2d 840 (1998) (“where the impeachment information has no bearing on defendant’s guilt or innocence, such as where the prosecution witness’s misconduct is completely unrelated to the trial at which he is testifying and [his] testimony is not crucial to the prosecution’s case, its nondisclosure does not constitute a Brady violation”).  Even if the new evidence was severely impeaching, the fact remains that Braley’s credibility was not determinative of Widmer’s guilt or innocence.  Instead, Braley’s testimony was simply cumulative to the considerable evidence bearing on Widmer’s guilt, and there is no reasonable probability that impeaching Braley would have resulted in a different outcome.  See Evid.R. 608(B); Agurs, 427 U.S. at 112; Jones, 399 F.3d at 648.

In sum, under the Brady line of cases, the prosecution has an obligation to disclose personnel information that could be utilized for impeachment purposes only if that information is material to the defendant’s guilt or level of punishment.  Moreover, materiality in the Brady sense requires disclosure, “if there is a reasonable probability that had the evidence been disclosed to the defense the result of the proceeding would have been different.”  Bagley, 473 U.S. at 682.  Thus, the burden of disclosure of evidence contained in personnel files, for impeachment purposes, under Brady, may not be as far-reaching as some prosecutors seem to believe.


[1] This purported obligation to disclose personnel records has been described to me, at times, in the broadest possible terms.  However, the information actually required to be disclosed concerns only information that is material to guilt or punishment.  Notwithstanding that, I have been told that some prosecutors are requiring that all disciplinary records be provided on an ongoing basis.

[2] It appears to me that this explanation of Brady, to include evidence that may be utilized to impeach a prosecution witness, is the genesis of the perceived obligation to disclose disciplinary records of law enforcement officers, especially if the investigation resulted in a finding of dishonesty.

Last Updated (Monday, 17 March 2014 17:50)

 

In Defense of Collective Bargaining

A team of OPBA attorneys recently completed a lengthy odyssey when the Ohio Supreme Court refused to accept for review the appeal of the City of Munroe Falls (The “City”) in the case captioned City of Munroe Falls v. State Employment Relations Board, et al., Case No. 13-0266 (2013).

The case began in the spring of 2010, when the City, for the first time, refused to bargain with the OPBA concerning a successor contract for a bargaining unit of Sergeants.

The City initially claimed it had no duty to bargain because the bargaining unit only contained one member and, thus, was not subject to the Collective Bargaining Act - - R.C. Chapter 4117, purportedly due to the fact that it could not “collectively” bargain with a unit containing only one member.[1]

In response to the City’s refusal to bargain, the OPBA filed an Unfair Labor Practice Charge (the “Charge”) with the State Employment Relations Board (“SERB”), on or about September 10, 2010.

SERB investigated the OPBA’s Charge and on October 14, 2010, determined that there existed probable cause to believe that the City violated R.C. §§4117.11(A)(1) & (A)(5) by refusing to bargain a successor contract for the Sergeant’s bargaining unit.

As the case at SERB proceeded through the hearing process, the City’s theory of the case took an interesting turn.  In addition to its more pedestrian arguments that single member bargaining units abated as a matter of law, the City began to broadly also assert that R.C. Chapter 4117 was unconstitutional, in that it allegedly violated Section 3, Article XVIII of the Ohio Constitution and that it was an improper delegation of legislative authority.

On or about July 12, 2011, SERB ruled in favor of the OPBA and ordered the City, inter alia, to bargain a successor contract, in good faith, with the OPBA for the Sergeant’s Bargaining Unit.  In doing so, SERB ignored the City’s constitutional arguments.

The City timely appealed SERB’s ruling to the Summit County Court of Common Pleas and renewed all of its former arguments, including its claims that Chapter 4117 was unconstitutional.

On or about February 6, 2012, Judge Tammy O’Brien upheld the SERB decision in favor of the OPBA and, notably, ruled in favor of the constitutionality of Chapter 4117, by stating at p. 10 of her Order:

The Supreme Court of Ohio addressed constitutional arguments like those presented by Munroe Falls, in Rocky River v. State Emp. Relations Bd., 43, Ohio St.3d 1, 539 NE.2d 103 (1989).  The Court held in Rocky River:

The Ohio Public Employees’ Collective Bargaining Act R.C. Chapter 4117 *** [is] constitutional as [it] falls with the General Assembly’s authority to enact employee welfare legislation pursuant to Section 3, Article II of the Ohio Constitution, Section 3, Article XVIII of the Ohio Constitution, home-rule provision, may not be interpreted to impair, limit or negate the Act.  (Citations omitted). Rocky River has not been overruled and remains good law.[2]

The City then appealed to the Summit County Court of Appeals.

On December 31, 2012, the Appeals Court affirmed the decision below, while stating, at pages 8-9 of its Judgment Entry:

Munroe Falls asserts in its fourth assignment of error that the lower court erred in concluding that R.C. Chapter 4117 does  not violate the Ohio Constitution.  We do not agree.

We note that Munroe Falls does not point to a particular section in R.C. Chapter 4117 that it believes is unconstitutional; instead, it broadly asserts the entire Chapter is unconstitutional.  We are mindful that “[s]tatutes are presumed to be constitutional unless shown beyond a reasonable doubt to violate a constitutional provision.”  (Internal quotations and citations omitted.)  Nitchman v. Nationwide Mut. Fire Ins. Co., 146 Ohio App. 3d 315, 317 (9th Distr. 2001).

Essentially Munroe Falls asserts that R.C. Chapter 4117 violates Section 3, Article XVIII of the Ohio Constitution and is an improper delegation of legislative authority. . . .

Rocky River has not been overruled, and, thus, this Court is bound to apply the law as set forth by the Supreme Court of Ohio.  As the Supreme Court has already determined that Chapter 4117 is constitutional and has not reversed its position on this issue, Munroe Falls’ argument concerning Section 3, Article XVIII of the Ohio Constitution is without merit.  See id.

With respect to Munroe Falls’ assertion that R.C. Chapter 4117 represents an improper delegation of legislative authority, we are likewise not persuaded.

In the winter of 2013, the City attempted to appeal this case to the Ohio Supreme Court.  As previously stated, the Ohio Supreme Court refused to accept jurisdiction of the case, by Entry dated May 8, 2013.

Thus, the foregoing three-year ordeal concluded with a significant victory for OPBA members and other public employees, as another challenge to the continued viability of the Collective Bargaining Act was completely rebuked.



[1] The City’s position was disingenuous, at best, given the fact that the unit had only contained one member since at least 2004 and the City had previously bargained a contract with the OPBA for the one person unit.

[2] Ironically, former Ohio Supreme Court Justice, Andy Douglas, the author of the Rocky River decision, guided and advised the team of OPBA attorneys working on the Munroe Falls case.

Last Updated (Tuesday, 24 September 2013 05:15)

 

Know Your Rights Concerning Union Representation

Members often tell me in the context of an internal investigation something to the effect that their Employer asked them questions and never offered them Union representation.

While I am sure that this topic has been addressed before, it bears repeating that an Employer is not required to offer an employee Union representation before questioning, unless the collective bargaining agreement specifically mandates that the Employer do so.

Rather, what the law requires in these situations is that the Employer permit the employee to be represented, under certain stated conditions, upon the employee’s request.

Specifically, in In re Davenport, SERB 95-023 (12/29/95) the State Employment Relations Board (“SERB”) adopted the standard set forth by the United States Supreme Court in NLRB v. Weingarten, 420 US 251 (1975), at page 3-156, by stating:

We believe that Weingarten provides the proper balance between the public employees’ rights in ORC §4117.03(A)(2) to engage in concerted activities for mutual aid and protection.  Therefore, we specifically find that, upon an employee’s request, representation by an employee organization is required at investigatory interviews which the employee reasonably believes could lead to discipline (the Weingarten standard) and at grievance meetings.


SERB amplified its above finding in Davenport, above, in In re City of Cleveland, SERB 97-011 (6-30-97) when it held that an unfair labor practice, under R.C. §4117.11(A)(1), for the denial of the right to representation is established when the following four elements are proven:

  1. That the interview was investigatory[1];
  2. That the employee requested the presence of a Union representative and the request was denied;
  3. That the employee reasonably believed that the interview might result in discipline[2]; and
  4. That after the Employer denied the employee’s request for representation, the Employer compelled the employee
    to continue with the interview.

Consequently, absent express contract language requiring the Employer to offer Union representation prior to interrogating an employee in an investigatory interview, the employee must specifically request the presence of a Union representative.

Please contact your OPBA representative anytime that you have any questions about representation issues or any other relevant matters.


[1] In In re State Employment Relations Board v. State of Ohio, Dept. of Rehab. & Corrections, Ross Correctional Institution, SERB 99-004 (2-12-1999), SERB indicated that “a meeting is investigatory if its purpose is to elicit information pertaining to the conduct of the employee being interviewed.”

[2] “An employee’s reasonable belief that discipline may be imposed as a result of the interview will be measured by an objective standard: whether a reasonable person would believe that discipline may be imposed on the employee involved as a result of the interview.  Id.  It is irrelevant that no discipline actually resulted if the employee possesses the requisite reasonable belief that discipline might result.”  Ohio Dept. of Rehab. & Corrections, supra, at p. 5 of 7.


Last Updated (Monday, 11 March 2013 18:06)

 

Recent Court Case of Interest


The Ohio Supreme Court and the United States Court of Appeals for the Sixth Circuit recently decided cases concerning separate issues, both of which may be of interest to some of our members.

The Supreme Court, in The State ex rel. Village of Oakwood v. Industrial Commission of Ohio, et al., 2012-Ohio-3209 (July 18, 2012) addressed a dispute concerning a Workers’ Compensation claim for a police officer who was working special duty for a private employer.

Specifically, the police officer was performing traffic-control duties on a construction project, in full uniform, utilizing his police cruiser.  As is often the case with special duty, however, the officer was being paid directly by the private employer, a construction company.

The issue, that resulted in litigation, arose due to the fact that the officer was injured when his police cruiser was struck by another vehicle driven by a private citizen.

The officer properly filed a Workers’ Compensation claim which was initially allowed against the public employer for whom he was employed as a police officer.  Later, the Bureau of Workers’ Compensation issued another Order naming the private construction company as the proper employer.

At the final levels of administrative appeal, the decision was again reversed and it was determined that the City was the correct employer.

The City filed a complaint in the Franklin County Court of Appeals alleging that “the Commission had abused its discretion in finding it to be the amenable employer.”

The Appeals Court upheld the Commission’s decision and the City appealed to the Ohio Supreme Court.

The Supreme Court upheld the Court of Appeals and the Commission’s decision, by stating:

¶ 14  The staff hearing officer examined the totality of what he considered to be the relevant circumstances in this case and made determinations supported by evidence in the record.  We have “consistently recognized and generally deferred to the Commission’s expertise in areas falling under the agency’s jurisdiction.”  State ex rel. FedEx Ground Package Sys., Inc. v. Indus. Comm. 126 Ohio St.3d 37, 2010-Ohio-2451, 930 N.E.2d 295, ¶ 27.  Accordingly, we defer to the Commission’s expertise in finding [the City] to be the amenable employer.

The good news for our members is that the Court made it clear that there was no doubt that the injury happened in the course of employment.

The only uncertainty was which employer was the responsible employer for purposes of the Workers’ Compensation Act.  In deciding this difficult question, the Court also indicated that these cases are very fact specific, and thus, a flexible, rather than rigid analysis, will be applied to the actual circumstances to determine the responsible employer.

In another case of potential interest, the Sixth Circuit Court of Appeals, on Petty v. Metropolitan Government of Nashville & Davidson County, Nos. 10-6013/6105 (July 24, 2012), applied the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) in favor of a Police Sergeant who was returning to his department from active service in the United States Army.

The controversy in this case resulted from the fact that the returning veteran was not immediately reinstated by his employer to his former position.

Instead, the employer subjected the employee returning from military leave to a separate return to work process which included, among other things, a drug screening, a personal history update questionnaire and a meeting with the Police Department psychologist.

Due to answers given on the questionnaire regarding his separation from the army, the police department commenced an investigation against the returning officer and, eventually, terminated him.

The returning Sergeant then filed a complaint in federal court alleging violations of the reemployment and anti-discrimination provisions of USERRA.

In affirming the lower court’s decision to reinstate the employee to his former position of Patrol Sergeant with back pay and partial liquidated damages, the Sixth Circuit held:

We find no fault with the Court’s conclusions.  USERRA prohibits employers from placing “additional prerequisites” on returning veterans seeking to exercise their reemployment rights.  See 378 U.S.C. §4302.  Petty I found that rescreening employees before reemploying them constituted such an “additional prerequisite,” and concluded that Metro’s additional investigation violated this prohibition.  See Petty I, 538 F.3d at 440-41.  Though USERRA may permit Metro to terminate Petty for dishonesty after reemploying him, Metro never restored Petty to his position as patrol sergeant.  Accordingly, we hold that the district court properly exercised its discretion in awarding Petty back pay and reinstatement under his reemployment claim.

Obviously, issues concerning Special Duty injuries and reinstatement from the military can be difficult and complex.  Please do not hesitate to contact your OPBA representative with questions concerning these or any other workplace issues.

Last Updated (Monday, 10 September 2012 19:31)

 

untitled

I recently wrote to you about two Ohio Appeals Court cases dealing with the issue of whether law enforcement officers needed a warrant to place a Global-Position-System (“GPS”) tracking device on a suspect’s vehicle when it is parked in a public place.1

As you may recall, the Butler County Court of Appeals held that placing the GPS on the suspect’s van and monitoring its movements, without a warrant, did not constitute a search or seizure under either the Constitution of Ohio or of the United States.

I am revisiting this issue so soon, due to the fact that, as often happens with new technology, the case law governing it is rapidly evolving.
This is illustrated by the fact that the United States Supreme Court, on January 23, 2012, issued a decision which essentially overrules the Butler County Court of Appeals with respect to the issues noted above.  

In United States v. Antoine Jones, 2012 U.S. Lexis 1063 (1/23/12), the Supreme Court considered a case where the government obtained a search warrant permitting it to install a GPS on a vehicle registered to a suspected drug dealer’s wife.  The warrant authorized installation of the device in Washington D.C. within ten (10) days of its issuance.  Instead, the agents installed the device on the eleventh day in Maryland.2  The agents then tracked the vehicle for twenty-eight days. Subsequently, an indictment issued naming the drug dealer and several other persons on drug trafficking conspiracy charges, based substantially, on the information gathered during the surveillance of the vehicle with the GPS device.

The Federal District Court suppressed some of the data obtained from the tracking of the GPS, but, it allowed much of it into evidence on the basis that the drug dealer had no reasonable expectation of privacy when the vehicle was on public streets.3

The Federal Appeals Court for the Washington D.C. Circuit reversed the trial court and held that the admission of the evidence obtained by warrantless use of the GPS violated the Fourth Amendment to the U.S. Constitution.

On appeal, the Supreme Court framed the issue as whether the attachment of a GPS tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.
In affirming the Court of Appeals’ reversal of the drug dealer’s conviction and vacating his life sentence, the Supreme Court held that the “installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search.”  Jones, supra., at p. 4.

Consequently, the lack of a warrant required the suppression of the data obtained from the GPS tracking device.
A review of the Supreme Court’s decision emphasizes the evolving nature of and the difficulty of addressing matters relating to the utilization of advancing technology in law enforcement.  Although there were no dissenters in the case, there were concurring opinions that illustrated that the Court was by no means unanimous in deciding how to apply the centuries-old constitutional language and hundreds of years of precedent to extremely sophisticated and rapidly changing technology.

Accordingly, the law in this area is sure to continue to change as quickly as the cutting edge technology that it seeks to regulate.
Finally, on a topic totally unrelated to the foregoing, the Columbus Dispatch and several other large newspapers reported, on or about January 21, 2012, that a prison guard, employed by the State of Ohio, in the Southwestern part of the State was terminated for allegedly making threats against Governor John Kasich on his Facebook page.  The post allegedly stated, “OK, we got Bin Laden… lets go after Kasich next.  Who’s with me?”

The employee has indicated, as most fair-thinking people would probably conclude, that he meant it as a joke and that it was taken out of context.
While that may be true, this further illustrates the growing problem related to law enforcement employees suffering serious discipline due to posting material on social media sites.

Regardless of how that case is decided on appeal, it further emphasizes the need for law enforcement-related employees to exercise common sense and good judgment when utilizing social media.

[1] See State v. Kelly, 188 Ohio App.3d 842, 937 N.E.2d 149 (12th Dist. 8/2/2010) and State v. Johnson, 190 Ohio App.3d 750 (12th Dist. 11/29/2010).

[2] For purposes of the litigation, the government conceded that it had not complied with the warrant’s requirements and, instead, argued that a warrant was not necessary.

[3] This was the same rationale relied on by the Butler County Appeals Courts in allowing the data into evidence in Kelly and Jones, supra.


 
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