To many, the Orweillian concept of “big brother” is a real and present danger in our country today.  A recent decision by the Appellate Division in New Jersey has addressed the use of a global positioning system (GPS), in the prosecution of a drug related offense.  In that case, the government’s agent installed a GPA device on a suspect’s motor vehicle, so as to track the suspect’s visit to an apartment that was dealing drugs and drug paraphernalia.  The suspect was later indicted. 

At trial, the government sought to introduce the results of the GPS device and when the defense objected, the trial judge indicated to the government that an expert witness would be required.  The trial judge also issued a protective order that precluded the defendant from examining the device and to determine where it was installed on his vehicle.  Thereafter, the government made a piecemeal effort on different dates to establish an appropriate foundation for the GPS.  The trial court ultimately ruled that the GPS information was inadmissible and the state finally moved to reconsider that ruling
 by offering an expert from the manufacturer.  The trial court denied the request.

On appeal, the court  affirmed the trial court’s ruling and observed that GPS devices are susceptible to malfunction and, as a result, could not be put into evidence.  The court also ruled that the trial court’s decision to bar the state’s belated effort to establish an appropriate foundation was appropriate.