Christopher Rayner's lawyer is asking a judge to decide whether the high-technology snooping violates constitutional protections against unreasonable government searches.
It's a "novel issue implicating questions about how the reality of GPS technology impacts traditional notions of Fourth Amendment protection," attorney Ross Garber wrote in a motion asking U.S. District Court Judge Ellen Bree Burns to throw out any evidence obtained by the GPS device.
Rayner discovered the global positioning system protruding from the undercarriage of his car in September 2005. Garber later received a phone call from an FBI agent demanding Rayner return the device.
Garber, who has been recommended by Gov. M. Jodi Rell to President Bush to be the next U.S. attorney for Connecticut, brought the device to federal court in Hartford. After a hearing, the government agreed to preserve the device and make it available to Rayner if he was prosecuted.
The U.S. Attorney's office declined to comment on Garber's motion, which was filed Tuesday, saying prosecutors would respond in court.
In 2006, Rayner and 35 other people were charged in the case. Rayner, who was charged with racketeering conspiracy and other crimes.
Beginning in 1928 with the telephone, emerging technologies have continually required the courts to re-examine the reach of the Fourth Amendment, Garber noted in court papers.
The Supreme Court has allowed hidden recording devices to assist agents in taking notes, Garber said. The court also allowed agents to use a tracking device that emitted a weak radio signal, to help nearby agents as they conducted surveillance, he said.
But the court has taken a more restrictive view of other technology, Garber said. He cited a ruling that found the warrantless use of a thermal imaging device used in a drug case constituted an unreasonable search.
Garber said courts have been split on whether authorities should be required to obtain a warrant before using a GPS system.
"Significantly, no case appears to address the warrantless use of a GPS tracking device that is as advanced as the one employed in this case or a situation in which the government used GPS to monitor a person's movements for as long as in this case," Garber wrote.
The surveillance lasted almost six months, much longer than the warrantless surveillance of the other cases, Garber said. He called the surveillance "incessant."
"Fundamentally, while a person may, as a general matter, have no expectation of privacy on a public roadway, this does not mean that nonstop surveillance of a person's whereabouts -- 24 hours a day, seven days a week, month after month -- in public and private areas does not implicate constitutional privacy concerns," Garber wrote.
Authorities may have physically penetrated the car to install the device, which drew power from the car's battery, according to Garber. 'In effect," he wrote, "the government turned Mr. Rayner's car into a device to track his movements."
Rayner was accountant to James Galante, who was accused of paying a quarterly $30,000 mob tax to alleged Genovese crime family boss Matthew "Matty the Horse" Ianniello in exchange for mob muscle to stifle competition. Ianniello pleaded guilty to racketeering conspiracy and tax evasion and was sentenced to two years in prison.
Galante is awaiting trial.
Rayner, of Wilmington, N.C., last year pleaded not guilty to an additional charge that he participated in a scheme to circumvent a salary cap for Galante's minor league hockey team, the Danbury Trashers.
By John Christoffersen, Associated Press Writer
