For the last three years or so, Police Blotter has followed topics like police tracking vehicle movements through GPS and search engine history being used as evidence in court.
Texas resident Wendi Mae Davidson enjoys the dubious distinction of being a convicted murderer whose case involves both types of electronic monitoring.
Davidson's legal travails began on January 16, 2005, when she told the U.S. Air Force that her husband Michael Severance, an airman, had been missing since the day before. Air Force investigators and the San Angelo Police Department began parallel investigations, which led them to conclude it was unlikely that Severance had deserted.
Air Force Special Agent Greg McCormick did learn early on that Davidson owned a horse on a ranch, but investigators didn't know where it was. In hopes that Davidson would lead them to it, Air Force agents placed a tracking device on the underside of her car in the middle of the night on February 26.
One day later, "data retrieved from the device" showed that Davidson had driven to a ranch owned by Terrell Sheen, who told agents that he boarded horses including Davidson's and that they were welcome to search the property. The Air Force agents did: it proved to be an expansive ranch that included a barn, mobile homes, fenced corrals, and ponds.
Their search did not find Severance, the missing airman. On March 5, a Texas Ranger and a San Angelo sergeant interviewed Davidson at the veterinary clinic where she worked. They already knew at this point (it's unclear how they knew this) that the computer had been used to perform Internet searches on topics including polygraphs and the phrase "decomposition of a body in water." The police said Davidson became defensive when asked about the pond on Sheen's ranch and her Internet searches.
What you might expect to happen did, in fact, take place. Michael Severance's body was found in one of the ponds, with Davidson claiming she moved the body to protect a family member who might have been the murderer.
The police didn't believe her; she was charged with murder and two counts of tampering with evidence and, after a no-contest plea, was eventually sentenced to 25 years in prison. One report said Davidson owned a small animal clinic and had apparently poisoned her husband with a mix of phenobarbital and pentobarbital before weighing down his body with a boat anchor.
On appeal, Davidson's lawyers filed a motion to suppress evidence obtained from the tracking device. (It's not clear that it was a GPS-based unit, but because that's by far the most common, it's a fair assumption.) Her appeal said the tracking data should be suppressed because a judge's approval was necessary--and more specifically that it violated the Fourth Amendment, the Texas Constitution, and the Texas Code of Criminal Procedure.
Note that while her husband was a member of the U.S. military, Davidson was not, and the same Fourth Amendment standards that circumscribe the actions of local police should presumably circumscribe the actions of federal investigators as well.
If the same rules apply, what should those rules be? Courts have split on the topic; here's a review of cases I wrote in 2005. Suffice it to say that a pair of U.S. Supreme Court cases--U.S. v. Knotts and U.S. v. Karo--established that police don't need court approval to track suspects, at least when using a crude radio beeper.
The trial judge found that the military investigators followed procedures when placing the tracking device on Davidson's car, not least because they consulted with the U.S. attorney and obtained approval from their regional commander. The request for the order says it "only requires a region commander's approval" and that "no search warrant or search authorization is required, as long as the installation and monitoring of the device is conducted in a public area."
In terms of the Fourth Amendment, Davidson conceded that the feds could track her on a public road. But once she turned off public roads, onto the ranch property, passed through a locked gate, and drove to the stock pond, she claimed to have a reasonable expectation of privacy.
Both the trial court and the appeals court disagreed. The appeals court said there was insufficient evidence to show that she should have an expectation of privacy on the property. What's more, it said nobody should have any expectation of privacy in an "open field" and upheld her conviction.
Excerpts from Texas Appeals Court's opinion: In any event, the government's intrusion upon the open fields is not one of those "unreasonable searches" proscribed by the Fourth Amendment or Article I, Section 9. The Fourth Amendment and Article I, Section 9 accord special protection to people in their persons, houses, papers, and effects, but that protection does not extend to "open fields."
The "open fields" doctrine allows a law enforcement officer to enter and search an area of land without a warrant. An "open field" need not be "open" or a "field" as those terms are commonly used; the term "open field" may be defined as any unoccupied or undeveloped area outside the curtilage of a dwelling. An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home, i.e., the curtilage.
The court distinguished the "open fields" of "the vast expanse of some western ranches" or woods from the "curtilage," the land immediately surrounding and associated with the home. The court concluded that "from the text of the Fourth Amendment, and from the historical and contemporary understanding of its purposes, that an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers."
Appellant failed to present any evidence during the suppression hearing to demonstrate that the monitoring of her vehicle implicated a reasonable expectation of privacy. The evidence at the hearing showed that the rural ranch property in question falls squarely within the definition of "open fields," in which appellant is not entitled to an expectation of privacy. That the property was fenced and gated does not create an expectation of privacy that society recognizes as legitimate and reasonable.
The record does not show that the trial court abused its discretion in determining that the police did not violate appellant's reasonable expectation of privacy by monitoring the tracking device on Sheen's property, and the evidence obtained through use of the device was properly admitted. Having overruled appellant's sole issue, we affirm the trial court's order denying appellant's motion to suppress and the judgments of conviction.
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