In the first decision of its kind, the Osaka District Court has rejected GPS evidence in a criminal trial on grounds that the police failed to first obtain a court warrant before using GPS devices to track the defendant’s movement, and thus violated his privacy rights. The Criminal Procedure Law has no provisions on the use of GPS in investigations. The government should establish a clear procedure for its use in criminal probes to avoid violating suspects’ privacy rights.

The trial involves a 43-year-old man who was arrested in December 2013 on suspicion that he stole automobiles and other goods, mainly in the Kansai region. The police’s use of GPS in their probe came to light when the suspect told his lawyer that he had found a GPS tracking device attached to the underside of his car. The Osaka police admitted during the trial — for which a ruling is expected next month — that investigators attached 16 GPS tracking devices on 19 vehicles used by the suspect and his colleagues. The investigation continued for about half a year.
The prosecution defended their investigation method by saying that the GPS tracking devices were used as an auxiliary tool in their stake outs, that the system only disclosed approximate locations and that it did not track the suspect around the clock. But presiding judge Takaaki Nagase rejected the prosecution’s argument, saying that since GPS has a high degree of accuracy and enables the police to follow their targets even when investigators have lost sight of them, the GPS-based probe was different in nature from those in which investigators physically trail the suspect.

The judge ruled that probes using GPS tracking devices are illegal unless they are backed by a court warrant. He went on to criticize the police for not even contemplating asking the court for a warrant despite the fact that there was a good chance that it would have been granted. Earlier in the trial, the prosecution did not even disclose evidence that had been gathered in the probe via GPS tracking devices. It wasn’t until after the defendant’s lawyer asked for the disclosure did the police’s use of GPS tracking devices become known.
GPS is indeed a useful tool in criminal investigations. But as the lawyer for the accused pointed out, suspects’ privacy rights might be violated without them even noticing unless restrictions are imposed by a third party on the police’s use of GPS tracking devices in their investigations.

The latest decision by the Osaka court contrasts with one made in January by a different judge of the same court on a separate trial of the suspect’s accomplice. That decision wholly accepted the prosecution’s argument and determined that the use of GPS in the investigation did not violate the privacy of the accused and was legitimate. To avoid confusion, the government should come up with clear procedures governing the use of GPS in police investigations.

In 2006, the National Police Agency issued an internal notice to police forces nationwide stating that the use of GPS devices in investigations would be permitted when the nature of the crime and the danger it poses necessitate prompt action and when it is difficult to track suspects by other means. The NPA should clarify its policy in light of the latest court ruling.
The U.S. Supreme Court, in a narcotics transaction case, ruled in 2012 that the use of GPS tracking devices in investigation without a court warrant violated the privacy of relevant parties, and a law has since been introduced to require investigators to obtain the warrant in the use of GPS in their probe. Japan should also establish a mandatory procedure.

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