Ohio Supreme Court rules establishing limits on tracking device warrants

The Columbus Dispatch yesterday observed “Ohio law is playing catch-up with the increasing police practice of secretly installing GPS devices on suspects’ vehicles to track their travels and potentially crack crimes,” noting that Fairfield County Prosecutor Gregg Marx and Franklin County Prosecutor Ron O’Brien wanting the Ohio Supreme Court to overturn an appeals court ruling that suppressed evidence against two home-invasion robbers because GPS units were used and clarify state law on law-enforcement use of the devices to remotely follow criminal suspects, and that changes were being proposed to Ohio court rules directly addressing search warrants being needed to install tracking devices. The rules currently make no distinction between warrants to search property or track vehicles.”

The cases described are those of Montie E. Sullivan and David L. White, whose cases began judges in Franklin and Fairfield counties having suppressed some of the evidence against two men accused of robbery because deputies placed a GPS device on one of their cars without obtaining a warrant. Prosecutors in both counties appealed the trial court’s rulings which had been based on the Supreme Court’s 2012 holding in United States v. Jones, that installing a Global Positioning System (GPS) tracking devices on vehicles and using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment, with the Fifth Circuit Court of Appeals upholding the trial courts in both cases. [ See State v. Sullivan, 13-CA-10, 2013-Ohio-5276  and State v. White, 13-CA-11,2013- 5221 ].

The Courts’ news service last week announced the Court was “proposing amendments to the Rules of Practice and Procedure to specifically address search warrants for tracking devices,” noting specifically that “the current Criminal Rule 41  does not make a distinction between searching property and installing a tracking device, and the new rules would establish important limits in this area.”

Public comment on the proposed amendments will be accepted until March 5, with the Supreme Court being able to revise and file them with the General Assembly before May 1st.  Comments should be directed in writing to Jo Ellen Cline, Government Relations Counsel, Supreme Court of Ohio, 65 South Front Street, 7th Floor, Columbus, Ohio 43215-3431 or j.cline@sc.ohio.gov and include your full name and regular mailing address in any comment submitted by e-mail. Copies of all comments submitted will be provided to each member of the Commission on the Rules of Practice and Procedure and each Justice of the Supreme Court.

Language of all Proposed Amendments