Inside GNSS Media & Research

NOV-DEC 2018

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24 InsideGNSS N O V E M B E R / D E C E M B E R 2 0 1 8 Statutory and Case Law Framework Before examining the details of the Supreme Court decision, we provide some background on the legal issues related to GPS investigations without warrants under the Japanese legal sys- tem. ere are two basic provisions appli- cable to this matter. Firstly, Article 35 of the Constitution provides that "the right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause and particularly describing the place to be searched and things to be seized." Second- ly, the proviso to paragraph (1) of Article 197 of the Criminal Procedure Code provides that "compulsory dispositions shall not be applied unless special provi- sions have been established in this Code." Applying these articles to a disposition by public authority, if the disposition is relevant to "compulsory dispositions", a warrant is generally needed to make the disposition. According to the established case law (Supreme Court 1975(A)No.146, March 16, 1976; Keishu Vol.30, No.2, at 187), "compulsory dispositions" are defined as "measures that are not permitted in the absence of special rules and provisions justifying such action, such as suppress- ing or subjecting the individual to unrea- sonable duress and placing restrictions on his person, residence, or property for the purpose of carrying out the coercive investigation." is definition consists of two elements, namely, the suppressing or subjecting of the individual to unreason- able duress and the restrictions placed on important rights of the individual. Moreover, the Criminal Procedure Code and the Act on Wiretapping for Crimi- nal Investigation specif ies different types of warrants for each compulsory disposition: a search and seizure war- rant, an inspection permit and wiretap- ping warrant are defined as warrants for compulsory dispositions (besides war- rants for physical restraint of a person). erefore, when a new type of compul- sory disposition which is not provided in the Criminal Procedure Code emerges, it is needed to consider the nature of the compulsory disposition and determine which type of compulsory dispositions defined in laws covers the compulsory disposition to decide which type of war- rant must be obtained. Otherwise the newly emerged compulsory disposition cannot be employed by the police. Against the above framework of the Japanese law, including the case law, two issues are identified about the GPS investigation without warrants. e first issue is whether any warrant is needed for the GPS investigation or not ("Issue 1"). As for the GPS investigations, the second part of the definition of "compul- sory disposition" by the Supreme Court, i.e. the placing of restrictions on impor- tant rights of the respective individual, is the main point of debates. If a warrant is necessary for GPS investigations, the next issue is which type of warrant is suitable for the GPS investigation ("Issue 2"). A few lower court's and some aca- demics argued that "inspection" could cover GPS investigations. e Supreme Court defined "inspection" as a "dispo- sition recognizing and maintaining by utilization of the five senses to validate the existence, characteristics, states, and details of the objectives" (Supreme Court 1997(A)No.636, December 16, 1999; Kei- shu Vol.53, No.9, at 1327). Hence, if GPS investigation satisfies this definition, it may be conducted when, and only when, an inspection permit is issued. Facts of the Case The accused was indicted for com- mitting a group robbery with others (also indicted, but not appealed to the Supreme Court). In this case, the police attached GPS terminals on 19 vehicles for a period of approximately six and a half months to track their locations and monitor their movements. The vehi- cles were not only used by the accused and his accomplices, but also by the accused's female friend. e investiga- tion was conducted without their con- sent and without a warrant. e accused argued that GPS inves- tigation without obtaining a warrant is illegal so that the court should reject the admissibility of the evidence obtained directly from GPS investigation as well as evidence closely related to such GPS investigation. Lower Court's Decisions e court of first instance (Osaka Dis- trict Court 2014(Wa) No.5962, July 10, 2016; Keishu Vol.71, No3) concluded that GPS investigation constitutes a compul- sory disposition so that such method of investigation needs a warrant. e court of first instance based its ruling on two main considerations. First, a subject's information can be obtained through GPS investigation even when the subject is in an area where one has a reasonable expectation that its privacy is protected. Second, intruding into private estate to attach GPS terminals is infringement on the estate owner's property right. The court concluded that GPS investiga- tion places restrictions on one's right of privacy and shall be one of compulsory dispositions. As regards to the type of a warrant required, the court held GPS investiga- tion needs an inspection permit. It con- sidered that GPS investigation has the nature of inspection, in that investiga- tors utilize their five senses to observe the positional information of the GPS terminal on a display screen of a receiver. The court decided that the GPS investigation in this case was illegal in that it was conducted without obtaining an inspection permit. I n cont r a st , t he cou r t of pr ior instance (Osaka High Court 2015(U) No.966, March 2, 2016; Keishu Vol.71, No3) concluded that GPS investigation does not need a warrant. Although the court's reasoning is not straightforward, it mentioned two factors which con- cluded the GPS investigation had not infringed on the suspect's right to pri- vacy significantly. First, the court held that the level of privacy infringement was not high, given that the informa- tion obtained by GPS investigation was limited to the locations of the vehicles to which GPS terminals were attached. However, the court did not elaborate on this point. Other lower court's decisions on similar cases had stated that, as the location of a vehicle can in general be seen by many people, such information is not important enough to be protected. Commentaries about this decision also argue that the court may have considered the privacy was not seriously infringed GNSS & THE LAW

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