Another state court of appeals on Friday saw no problem with police attaching a GPS tracking device to an automobile without first obtaining a warrant from a judge. Idaho's second highest court denied the appeal of Filip Danney who was convicted on marijuana charges based on evidence gained from the spying device.

In March 2007, Ada County Detective Matt Taddicken received an anonymous tip about Danney and decided to investigate. Two months later, he went to Danney's work and placed a GPS tracker on Danney's parked car. Within a few days, the device showed Danney was returning to Boise from a trip to Arcata, California. This was enough to have Taddicken order Danney stopped and searched. Ada County Sheriff's Office Deputy Matthew Clifford claimed that Danney failed to "signal for five seconds prior to changing lanes," and used this as a reason to pull him over. While Danney was detained, a drug dog was brought in to search the vehicle. The dog found the marijuana.

At trial, Danney objected to the stop on the grounds that an insufficient scientific foundation was laid for the GPS evidence. On appeal, he attempted to argue that the warrantless search violated his constitutional rights, but the appellate court rejected his assertion citing the three-part test created by a July decision of the state supreme court.

"We conclude that Danney's argument that the warrantless use of a GPS device to track his vehicle violated the Fourth Amendment does not demonstrate fundamental error because the second prong, requiring that the error 'plainly exists,' was not met," Chief Judge Karen L. Lansing wrote for the majority.

The court found that a plain error cannot exist on a topic where the court has never ruled and there is room for doubt regarding the issue's outcome.

"The law is not settled on whether use of a GPS device to track a vehicle's movements constitutes a 'search' subject to the strictures of the Fourth Amendment," Lansing wrote. "Neither the United States Supreme Court nor Idaho appellate courts have spoken to this issue, nor have the vast majority of the federal circuit courts. To the extent that it has been addressed, the jurisprudence in this area is conflicting."

As a result, the court let stand the district court ruling allowing the GPS evidence. Judge Sergio A. Gutierrez disagreed with the majority's reasoning.

"Even assuming the GPS evidence was constitutionally obtained, or as the majority concludes, not fundamental error that we can review on appeal, it was much too general to link Danney to criminal drug activity," Gutierrez wrote in a dissent. "As Danney points out, there was no evidence presented that it was Danney who drove the truck to California, nor that the driver had frequented a known drug location in Arcata or the surrounding area. Moreover, Detective Taddicken did not testify with specificity as to when the vehicle left for Arcata, whether it stopped anywhere during the trip, when it arrived in Arcata, or why he believed Arcata was a 'hotbed' of marijuana activity... As a result, the officers' reliance on an admittedly pretextual traffic stop to further investigate their hunch regarding Danney's drug activity appears, in this instance, to be an effort to circumvent the protections afforded by our federal and state constitutions against unreasonable searches and seizures."