Court: Exterior car transmitters permitted

Friday, April 26, 2002 | 10:19 a.m.

CARSON CITY -- In a 5-2 decision, the Nevada Supreme Court Thursday ruled that police, without getting a search warrant, can attach electronic monitoring devices to a car to track a suspect.

The court, in the majority decision written by Justice Deborah Agosti, said a suspect has no "reasonable expectation of privacy" on the exterior of his car where the device was placed.

It rejected the appeal of Frederick A. Osburn, who pleaded guilty to six counts involving possession of child pornographyin Las Vegas.

Justice Bob Rose, who wrote the dissent, said he feared "that in some instances, the monitor will be used to continually monitor individuals only because law enforcement considers them 'dirty.' "

He said, "In the future, innocent citizens and perhaps elected officials or even a police officer's girlfriend or boyfriend, will have their whereabouts continually monitored simply because someone in law enforcement decided to take such action."

Rose, with Justice Cliff Young concurring, said, "This gives too much authority to law enforcement and permits the police to use the vehicle monitor without any showing of necessity and without a limit on the duration of the personal intrusion."

As part of an investigation of serial rapes, police in Las Vegas attached an electronic monitoring device to the bumper of Osburn's vehicle. Officers did not obtain a search warrant. Eventually, through the aid of the monitoring device and visual surveillance, Osburn was observed committing voyeuristic activities, the court said.

Police then obtained a search warrant and found burglary tools and child pornography in the car.

Osburn filed a motion to suppress the evidence. He argued the attachment of the monitoring device violated his Fourth Amendment right to be free from warrantless searches. He said the device constituted "an unreasonable search and seizure" violating the Nevada Constitution.

Agosti, in the majority opinion, noted the federal law permits warrantless attachment of an electronic monitoring device to the exterior of a person's car. She also noted the U.S. Ninth Circuit Court of Appeals also ruled that the attachment of a transmitter did not constitute a seizure.

The majority opinion said, "We shall adhere to our prior decisions that hold that in order for an unreasonable search or seizure to exist, the complaining individual must have a reasonable expectations of privacy."

In this case, the court said the vehicle was in plain view and Osburn did not take any steps to shield or hide it from inspection by others.

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