Five members of Nevada's Supreme Court have voted to allow police to use electronic tracking devices on a suspect's car without first getting a warrant.
They rejected an appeal by Frederick Allen Osburn, who argued his convictions for possession of child pornography should be overturned because police developed evidence in the case by using an electronic tracking device attached to his vehicle.
The other two members of the court argued the decision gives police too much authority to monitor and track the movements of any individual without evidence and without proving necessity.
Osburn asked that the evidence be thrown out because police in Las Vegas had no warrant permitting them to attach the device to his car and, therefore, it constituted an unreasonable search and a violation of his privacy rights.
In an opinion by Justice Deborah Agosti, the majority rejected Osburn's arguments, saying he doesn't have a reasonable expectation of privacy to the exterior of his vehicle and attaching a tracking device to his bumper doesn't constitute an unreasonable search.
But Justices Bob Rose and Cliff Young disagreed. They said even though the majority opinion follows a federal Ninth Circuit Court case, they see attaching the monitor to his vehicle without a warrant as stepping over the line.
"Placing a monitor on an individual's vehicle effectively tracks that person's every movement just as if the person had it on his or her person," they wrote. "I consider this a substantial invasion of an individual's privacy and, in effect, a continuing monitoring or effective continuing search of an individual."
The dissenting opinion authored by Rose describes the federal ruling as "myopic," saying the decision permits law enforcement far too much leeway without oversight.
"The police will be able to place a vehicle monitor on any vehicle for any reason and leave it there for as long as they want," he wrote.
The dissent concludes law enforcement could continually monitor individuals "only because law enforcement considers them dirty." And it said the devices could even be used against innocent residents such as a police officer's girlfriend.
"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," the dissent states.