ANNAPOLIS — Howard County police violated a motorist’s constitutional rights by secretly placing a GPS device on his car and tracking the vehicle’s movements for 11 days without a warrant, a defense attorney told Maryland’s top court Friday.
The motorist, Wesley Torrance Kelly, is challenging separate convictions for a theft and a burglary committed while the device was on his green 2004 Chevrolet Trailblazer in April 2010.
“This is 24-hour dragnet surveillance,” attorney Juan P. Reyes told the Court of Appeals. He likened it to allowing police to construct a high-tech “fence around me or you, tracking who we visit seven days a week.”
Reyes, an assistant public defender, said the tracking violated Kelly’s Fourth Amendment rights and that evidence against him — including computer equipment and clothes that police said they saw him take — should have been ruled inadmissible.
Brian S. Kleinbord, of the Office of the Maryland Attorney General, countered the GPS surveillance was constitutional and the evidence was properly admitted.
A Howard County jury convicted Kelly of theft in December 2010 in connection with goods stolen from Advanced Programs Inc. in Columbia. One month later, Kelly pleaded guilty in Anne Arundel County to the burglary of the Casual Man XL store in Glen Burnie, he retained his right to challenge the surveillance on appeal.
Kelly was sentenced to two concurrent 10-year prison terms.
The Court of Special Appeals upheld the warrantless surveillance in a reported opinion last November. The court said police had a “good-faith” belief in 2010 that their actions did not violate the Fourth Amendment.
The officers had no way of knowing then that the U.S. Supreme Court would rule in January 2012 that police placement of a GPS device on a vehicle constitutes a “search,” for which a warrant is needed in the absence of exigent circumstances, the intermediate Court of Special Appeals held.
In 2010, the officers’ belief was reasonable because the Court of Special Appeals had upheld the warrantless use of a GPS device in a February 2008 decision, Donald Leroy Stone v. Maryland, the Court of Special Appeals added.
Kelly, though, convinced the high court to review the case.
At oral arguments Friday, his lawyer said the good-faith exception does not apply because the warrantless surveillance of Kelly was so much longer than that of Stone — 11 days, compared to two.
No reasonable police officer would believe they could “track anyone in this room [for] as long as they want,” Reyes said.
But Kleinbord said the Howard County officers reasonably relied on Stone and other Maryland decisions that preceded the Supreme Court’s 2012 ruling in United States v. Jones. The earlier cases placed no time limit on warrantless GPS surveillance, he noted.
“We don’t require officers to parse the cases that narrowly,” in search of an unstated time limit, said Kleinbord, who heads the attorney general’s criminal-appeals division.
Rather, the officers relied on the good-faith belief — based on the prior rulings — that “you have no reasonable expectation of privacy when you are traveling on the public roads” and thus are subject to surveillance via a Global Positioning System, Kleinbord added.
His argument drew support from Judge Irma S. Raker, who said judicial deference to an officer’s good-faith belief might be required when judicial decisions cannot keep pace with high-tech advances.
“Science and technology are always going to be ahead of the law,” added Raker, a retired jurist who was specially assigned to hear the case in place of Judge Shirley M. Watts.
Watts, who did not give a reason for her recusal, was on the three-member Court of Special Appeals panel that affirmed Kelly’s convictions.
The Court of Appeals is expected to issue its decision by Aug. 31 in the case, Kelly v. Maryland, No. 26, September Term 2013.