GPS and Divorce Mediation

With up-to-date software and technology, it is easy to obtain information that just a few years ago was difficult, if not impossible, to gather. The data must be collected according to certain, accepted procedures for it to be useful. If a person is an attorney, though, the situation may be a little different. Even the most seemingly insignificant piece of data may be scrutinized in court. Depending on the case, it may be reviewed for years.

When the data is bits and bytes that could affect someone charged with a crime, or involved in a divorce, the importance rises. When the information is contained in digital devices like a vehicle’s black box, a GPS or even a cellphone which pings cell towers, the importance may take on shades of literal life-and-death.

In the United Kingdom, in April 2014, three people who fraudulently tried to claim £54,000 in damage and personal injuries following a minor car accident have had their claim rejected after a the blackbox proved their claim was implausible. A car was travelling behind a lorry in slow moving traffic and ran into the back of it, hitting its tow bar. There was no damage to the lorry and minor damage to the front of the car. The three passengers in the lorry claimed for personal injuries and damage totalling £54,000. However, since the car was fitted with the telematics device, which feeds information to insurers about how, when, and where a car is driven including details on the driver’s speed and braking habits. The data from the box, which is there to prove safe driving habits and reduce insurance premiums – showed that the claimed injuries were completely implausible.

A GPS is obviously not a simple device. However, it has a wide spectrum of applications ranging from precision farming to search and rescue operations, fleet management and even mapping and surveying. The GPS is relied upon by millions for matters of industry, family, economy, community, and safety. Police departments across the country are also relying upon GPS devices to initiate or further criminal investigations. GPS-enabled surveillance allows law enforcement agents to collect continuous, detailed, and real-time location, speed, direction, and duration information. The government can collect this information for hours, days, weeks, months, and even years, thus making it easier to amass extraordinary amounts of detailed information.

Like the GPS, an analysis of diagnostic information contained within vehicle electronic systems (Black boxes) are often decisive in solving cases in Court. For instance, when presented with the expert analysis, a jury will be instructed to the possibility of using the testimony to determine recklessness of a driver in a vehicular homicide case. While it can certainly be a determining factor in a case, the respondent would usually try to find faults with the device or its inappropriateness so that such evidence is discarded. For example, in a recent case the respondent argued that the black box was not designed to be used in accident reconstruction cases but was meant to be used as a safety system for the vehicle.

Telemetry experts provide witness opinion and testimony in all types of telemetry accidents. Telemetry accidents can occur in Intellectual Property, Federal Court, Electrical Engineer and so forth. In litigation, Telemetry accident experts attempt to use forensic engineering and biomechanical engineering research to reconstruct the accident and damages or event by providing witness testimony, computer animation or graphical exhibits to opine in a compelling way to the jury. More often than not, the jury seems convinced by such testimony.

I have myself been involved in expert evidence cases where the GPS and the black box have been used a couple of times. Technology has certainly made it easier to collect information from such devices and to also interpret and use them.

Whether such devices violate the privacy right of the individual is an altogether different matter.

Challenges to the government’s use of and reliance upon GPS-enabled surveillance evidence are increasing as well, with challengers arguing that the government’s warrantless installation of GPS devices on motorists’ vehicles and the resultant monitoring of motorists’ movements violates individual privacy rights under federal and state law. Motions to suppress GPS-enabled surveillance data in criminal prosecutions unanimously invoke the individual’s first line of defense in privacy protection: the US Constitution’s Fourth Amendment prohibition against unreasonable governmental searches. A number of these motions also invoke the Fourth Amendment’s prohibition against unreasonable governmental seizures, as well as state law protections. The US Supreme Court has yet to rule upon the constitutionality of warrantless governmental placement, tracking, and 24-hour use of GPS-enabled devices and surveillance data in criminal prosecutions. In any case, I am of the opinion that such use of the GPS is undoubtedly invasion of a person’s privacy.

A federal appeals court, addressing an issue that the US Supreme Court chose not to cover in a recent decision, has ruled that law enforcement officials must obtain a warrant before attaching a GPS unit to a suspect’s car and tracking them.

The Third Circuit Court of Appeals made its ruling in the case of US vs Katzin, in which police used a magnetic global positioning system to track a trio of brothers suspected of burglarizing pharmacies. Law enforcement stopped the car after the brothers allegedly robbed a RiteAid and claimed that a resulting search turned up evidence. Yet the brothers argued that the evidence was obtained illegally and thus inadmissible. The three-judge panel determined that installing GPS technology was a violation of the Fourth Amendment to the US constitution, which prohibits unreasonable searches and seizures. 

GPS and Divorce

GPS systems are starting to make their way into divorce proceedings. New Jersey recorded the first case in which a state court approved the use of GPS in tracking individuals in situations that did not involve law enforcement.

In 2011 a couple had divorced, but were still sharing the family car. The ex-wife placed a GPS device in the vehicle and the husband responded with a lawsuit that the tracking device violated his right to privacy. The court ruled in the ex-wife’s favor saying that the device only tracked the husband’s movements in public areas.

I see some potential hurdles with GPS tracking in divorce cases. He says that while the case law says a person has no expectation of privacy in a public space, a GPS can track a person’s movement in ways that someone following physically, simply couldn’t.

GPS and Private Investigators
A growing practice for private investigators in divorce cases is to use GPS tracking devices. Many are familiar with the laws surrounding their use. Most use the information obtained to help them spot potentially suspicious activity on the part of their client’s spouse. A private investigator’s use of GPS may reduce the expense of constantly having to follow the person in question or even sitting outside their house all night to see if they leave.

GPS and Divorce Mediation
While the tracking data may not be admissible, in court, as evidence under the hearsay evidence rule, the information could be useful in laying an evidentiary foundation. Once a qualified witness who can offer acceptable credentials to the court gives sworn testimony about their training and certification, a judge may allow the witness to read the data provide an interpretation of the data’s meaning as well as offer an opinion as to thwart the data means.

In divorce mediation, the bar for use of data and tracking information is lower. Depending on the agreement reached between the parties, the data may not even have to be presented by a trained technician. When infidelity is suspected, being able to produce digital confirmation of an spouse’s movements can provide powerful ammunition and lay a strong foundation for the remainder of the mediation process.

                        author

Bruce Provda

Bruce Provda became an attorney in New York back in the 1970s. Bruce is a graduate of Long Island University and subsequently, of the Hofstra University School of Law. He is a member of the New York Bar City Association as well as the Brooklyn Bar Association, Family Law Section. Provda… MORE >

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