Special to the Chronicle by Clarence Walker

[Editor's Note: Houston-based Clarence Walker has spent more than two decades as an investigative crime journalist, associate producer for cable TV criminal justice shows, and stringer for wire services. He has also published extensively in daily and weekly newspapers in Texas and New York, and legal journals. Look for more on GPS surveillance and the Antoine Jones case, including a full-length interview with the current Supermax resident, in the next week or two.]

In an August ruling that created a split with federal circuit courts in New York and California, the US Court of Appeals for District of Columbia became the first in the land to hold that police cannot use a Global Positioning System (GPS) device to track a person's movement for an extended period of time without a warrant.

[inline:gps-tracking.jpg align=left caption="Police placed a warrantless GPS Tracking Device on Jones' vehicle."]Just three weeks later, the 9^th US Circuit Court of Appeals in San Francisco upheld warrantless GPS tracking in similar circumstances. Given the rifts in the federal circuit courts, and now, among the differing appeals courts, the issue is almost certainly headed for the US Supreme Court for resolution.

The DC ruling in US v. Lawrence Maynard came in the case of two conjoined defendants, Lawrence Maynard and Antoine Jones, who were convicted of cocaine conspiracy offenses in the DC district court. Jones, the owner of a Maryland night club, had been targeted by the FBI and other federal and state police agencies as a major player in a multi-million dollar cocaine ring with ties to a Mexico-based organized crime group. Investigators said Jones and his co-conspirators distributed cocaine throughout the DC metro area.

In September 2005, Judge Paul Friedman of the federal district court issued a warrant for the FBI to install a GPS device on the Cherokee Jeep that Jones drove. For unknown reasons the investigators allowed the GPS warrant to expire, rendering it invalid. Why agents never requested another warrant remains unclear, but they went ahead and placed a GPS on Jones' vehicle.

The warrantless GPS produced 3,106 pages of data showing the movement of the vehicle at 10-second intervals. US attorneys said the data evidence placed Jones at a Fort Washington, Maryland residence where FBI in 2005 recovered 97 kilos of cocaine and almost a million dollars. Jones was arrested the same day of the raid and held without bond on multiple drug trafficking and conspiracy charges.

The first trial went disastrously for prosecutors. Jurors in the case handed down numerous acquittals and deadlocked on multiple other charges. After the trial, jurors told the Washington Post that the government had failed to prove its case. They wondered why none of the defendants were caught with or near the kilos of cocaine worth millions and why neither Jones nor his associates were ever photographed at the location where the drugs were found. And they questioned the GPS evidence, which they said only placed Jones' vehicle in the immediate area.

While Jones was acquitted of the most serious charge of conspiracy, he remained in jail pending retrial on the remaining charges.  The feds did better the second time around. Using the same GPS and informant evidence as in the first trial, they managed to convince a jury to convict Jones this time. He was sentenced to life in prison, and currently resides in the federal Supermax prison in Florence, Colorado, as he awaits a government appeal of the August appeals court ruling.

In that decision, federal Judge Douglas Ginsburg, writing for a unanimous three-judge panel, held that the warrantless use of such surveillance technologies violates constitutional protections against warrantless searches. The heart of the ruling concerned a person's privacy expectation irrespective of the criminal nature involved.

[inline:judge-douglas-ginsburg.jpg align=right caption="Federal Appeal Court Judge Douglas Gingsburg voted to overturn Antoine Jones' conviction."]"It is one thing for a passerby to observe or even follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after, week in and week out, dogging his prey until he has identified all the people, amusements, and chores that make up that person's hitherto private routine," Ginsburg wrote.

Government prosecutors argued the extended surveillance -- 28 days worth of GPS tracking without a warrant -- did not violate Jones's right to a reasonable expectation of privacy because he had been traveling in full view on public roads. In so doing, they relied on the Supreme Court's decision in US v. Knotts, which held that police could legally track a suspect's car electronically without a warrant.

Other circuit courts have interpreted the Knotts decision to allow extended surveillance. But the DC panel held that relying on Knotts to approve extended warrantless surveillance was a misreading of the case because the Supreme Court had reserved its opinion on whether such tactics could be used in full-time, "dragnet-type" surveillance.

Although in the minority in the 9^th Circuit case later that month, Judge Alex Kozinski strongly agreed with his brethren on the DC appeals court. "By holding that this kind of surveillance doesn't impair an individual's reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives," he wrote in a stinging dissent.

The DC appeals court ruling was welcomed by civil libertarians, defense attorneys, and the Electronic Frontier Foundation and the American Civil Liberties Union (ACLU), which filed amicus briefs arguing that a warrant should be required for GPS tracking.

"Today's decision brings the Fourth Amendment in the 21st century," said Arthur Spitzer, legal director of the ACLU.

"This is the first decision on the federal appellate side that's really given momentum to the requirement for a warrant," said Washington, DC, attorney Daniel Prywes.

"The big picture is if the court allows warrantless GPS, it will take us one giant step closer to a surveillance society and that much further away from a free society," said ACLU attorney Bryan Caves. "Warrantless GPS would allow police anywhere to track a person's movement over an extended period of time without judicial supervision. And that's scary."

The lawyers weren't the only ones happy with the decision. "I was overwhelmed with happiness" when the verdict came in, said Antoine Jones. "But the first time in my life I got brain lock!  When I read my appeal attorney's email and it said, 'We won!' I had to call one of my homies and asked him to email my wife and my loved ones because I lost it. I had to go and pray, thanking God to get it back together."

But unless and until the US Supreme Court decides the GPS tracking issue in his favor, Antoine Jones remains inmate number 18600-016 at the Florence Supermax. Journalist Clarence Walker interviewed him over a matter of weeks via email and phone calls this fall. Jones continues to fight to see the light of day and decries what he called a rigged trial.

"The next step is to see if the government will appeal the decision," he said. "If the appeal is forwarded to an en-banc hearing, my attorney, Stephen Lecklar, said he doesn't think the government will get a favorable ruling because the three-panel judges has already ruled in my favor."

Jones said the government might bypass the en-banc hearing and appeal to the Supreme Court."So if the government doesn't appeal the reversed decision, I will be released immediately."  Jones added that if the Supreme Court affirms the reversal, "It will crush the government because all 50 states would require police to get a warrant before they can place an electronic device on vehicles."

Jones did not receive a fair trial, he said. "It would take days to explain all the misconduct by the government and how I was punished with prejudice in both trials. I have five civil complaints dealing with this case and I am going to win," he predicted. "Without the trial judge's prejudice against me the government wouldn't have had a chance and I would have walked free during the first trial -- or at least, the case would have been dismissed in pretrial."

Jones pointed to an admitted warrantless search of his apartment by federal agents. "Once the agent admitted this error, Judge Huvelle should have ruled in my favor, but she didn't rule to avoid a mistrial. That violation alone should have caused a mistrial or acquittal."

"To make matters worse the agents also entered my house illegally with a key and the judge wouldn't allow my wife or son to testify to the illegal search which allowed me to get convicted on this prejudiced evidence," Jones said.

Nor was Jones impressed by the quality of justice in the federal courts, and he aimed his broadside at the defense bar, as well as prosecutors and the judiciary. "These days the feds don't have to try to get you to roll over on your co-defendants," he said. "They get the high-paid shyster lawyers to do their dirty work. I explained to my attorney in the beginning of the case that I was going to war and I didn't want to hear what the government had to say or offer."

What the lawyers are doing in DC District Courts is coercing their clients to attend a "reverse debriefing" whereby the government will present evidence from a case, Jones explained. "And then the government and defense attorneys manipulate and encourage the defendant to work with the government or take a plea."

Lawyers for some of the co-defendants in the case decided to snitch for the feds. Jones recalled how the tactics backfired.  "Almost all of my co-defendants and their lawyers tried to get them to flip on me but those who declined and went to trial with me the first time, they were acquitted. But two of my co-defendants attended the debriefing and testified against me. They went to prison but the other three who declined to testify went home."

As he awaits his freedom, Jones said he relied on faith and family to see him through. "The only thing that keeps me going is the grace of God, his protection and my family support," he said. "I am at the US federal prison in Florence, Colorado, and this place is a living hell!"

[inline:attorney-eduardo-balarezo.jpg align=left caption="Attorney  A. Eduardo Balarezo represented Jones during trial."]Jones' trial attorney, Washington-based Eduardo Balarezo, confirmed most of Jones' story. While he would not agree that some officers perjured themselves at trial, he added, "Although I think some of them massaged the truth a little bit."

Balarezo didn't think much of the government's stated reason for failing to obtain a warrant before GPSing Jones' vehicle. "The government basically said that getting a warrant would be onerous and not necessary, yet they were able to get one, but then let it expire and still placed it on my client's car," he noted.

Now, Jones may help make history as, one way or another, the warrantless GPS tracking issue makes its way to the Supreme Court. The former DC club owner is ready to start fresh once given the chance to walk out the prison doors.

"If the Lord blesses me to prevail and get my freedom, I will educate the youth and give back to the community," he said. "The real story is to put the past behind me and do the Lord's work to help others and save our youth."