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How can police balance need for warrants with use of GPS devices?

The Yomiuri ShimbunThe Supreme Court has concluded that strict rules are needed for police use of GPS devices in criminal investigations.

The top court’s Grand Bench ruled that investigations by the Osaka prefectural police in which they attached GPS devices to vehicles used by a man suspected of theft without obtaining a court warrant were illegal.

The top court judged probes using GPS devices to be “equivalent to compulsory investigations that require court warrants,” rather than those conducted on a voluntary basis. All 15 justices were in agreement. While lower courts had conflicting rulings, a unified view has been expressed for the first time. The latest judgment will likely affect police investigations in the future.

The top court’s ruling is notable for its serious consideration of the possibility that investigations using GPS devices may constitute an infringement on privacy.

Regarding investigations that use GPS devices to obtain information, the ruling said they “entail an invasion upon the private sphere by public power.” It also expressed the opinion that “excessive attempts to investigate things not related to the alleged facts could not be controlled.”

The top court has likely reached these conclusions in line with the spirit of the Constitution, which guarantees the inviolability of the private sphere of individuals.

Yet questions also remain as to whether information about the location of an individual who is suspected of a crime constitutes private information that should be protected across the board.

Now that it is necessary to obtain a court warrant, police will face the challenge of how to balance abiding by the principle of conducting criminal investigations with a court warrant — as stipulated by the Constitution and required under the Criminal Procedure Code — with the nature of using GPS devices in investigations.

Match rules to reality

Under the Criminal Procedure Code, in principle, a court warrant is presented to people subject to investigation before the investigation starts. But as a matter of fact, it is impossible to do so in probes that use GPS devices. If the police notify suspects of such probes beforehand, it may prompt them to escape or destroy evidence.

In the Criminal Procedure Code, there are no explicit provisions with regard to police investigations that use GPS devices. “It is desirable for new legislation that conforms with the principles of the Constitution and the Criminal Procedure Code to be enacted,” the ruling said, calling for the preparation of such legislation.

In investigating such cases where a suspect moves around a broad area, using GPS devices will surely be a powerful weapon.

Following the top court’s ruling, the National Police Agency has instructed police departments across the nation to refrain from using GPS devices in their investigations. To prevent investigative capabilities from declining, it is urgent to develop rules that match the real state of affairs, such as the presentation of a court warrant post-investigation.

The NPA presented application guidelines for the use of GPS devices in investigations in 2006. They limit use of GPS devices in investigations to such offences as serial theft and kidnapping, probably with the intention of putting a stop to unlimited use of GPS.

While not letting the suspect know about the use of GPS devices even after an investigation, the NPA has instructed police departments to refrain from putting information about the use of such devices into investigative documents or releasing information about the use of the devices to the media.

The Osaka prefectural police have trespassed on private land without permission during their investigations. Inappropriate investigation methods amplify the sense of distrust among people. It is crucial for the police to properly comply with formalities and do their best to conduct necessary investigations.

(From The Yomiuri Shimbun, March 16, 2017)Speech



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