High Tech Squares Off with the Fourth Amendment, Round Two: The Aurora, Colorado GPS Case

As the surveillance technology at the disposal of state and federal law enforcement continues to evolve in both sophistication and availability, inevitably there is going to be friction between the use of this technology and constitutional limitations. This tension is already being played out in trial courts across the country. It is an unfolding story well worth monitoring.

A current example is the on-going prosecution of an alleged bank robber named Christian Paetsch in federal court in Colorado, as related in an article in The New York Times, dated November 20, 2012.

It is the government’s allegation that on June 2, 2012, Mr. Paetsch (a former music teacher, much less) walked into a Wells Fargo bank in Aurora, Colorado, produced a firearm and ordered everyone to lie on the floor. He is then said to have absconded with $26,000. No one was hurt.

Yet, unbeknownst to Mr. Paetsch, someone at Wells Fargo possessed both the nerve and the foresight to secret a GPS device in the bag containing the money. So, as Mr. Paetsch fled, he was also simultaneously and unwittingly emitting a satellite trail that virtually guaranteed his eventual apprehension.

But the local police had their own problem: they had only a sketchy description of what Mr. Paetsch and his car looked like and did not have the technology to pinpoint exactly what car held the money and the GPS. They apparently had a general geographic read, but no more than that.

Apparently, the Colorado FBI possessed an equipment inventory that included a hand-held device that would have enabled them to quickly determine exactly which car contained the GPS device. But the FBI was not in Aurora that day and it would be an hour or so before they arrived at the crime scene.

So the local police had a tough choice: blockade the critical highway checkpoint and search everyone or run the risk that the bank robber and money might elude them—at least, for the time being. They chose option No. 1 and this choice is now the subject of suppression litigation by Mr. Paetsch’s federal public defender.

One is always a bit squeamish to second-guess decisions made by law enforcement officers attempting to apprehend an armed and dangerous felon. However, even with this salutary goal in mind, it seems that the Aurora police may have acted harshly. Blocking the critical intersection that led to the bank for two hours, the police trained their weapons on every car that approached. Every driver was ordered out of their car and instructed to keep their hands raised; several were handcuffed. Among the innocent citizens detained were a four-year-old girl and a mother, who was handcuffed in front of her son.

Eventually, the police reached the car containing Mr. Paetsch, and recovered the money and two loaded firearms. Now facing trial for this episode, Mr. Paetsch made a motion to exclude the evidence seized from the car on the ground that the roadblock was an unconstitutional violation of the Fourth Amendment.

The federal district court has ruled that the evidence is admissible and that the detention of the other motorists was justifiable. While the trial judge, William J. Martinez, admitted the evidence, he also made it clear that he found some aspects the police’s tactics troubling. Mr. Paetsch plans an appeal.

These types of cases will only multiply as time goes on. Existing technology now permits the police in some instances to track and even apprehend criminals in “real time”, often minutes after the offending conduct occurs. What the future holds for this technology can only be guessed at, but it is only natural that it will increase in its capability and dissemination. It remains to be seen how truly reliable this technology is and how wide a net the authorities can cast while in electronic hot pursuit before they bump up against the Constitution.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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