Governor's off the track

State legislators are going to have to try again to pass legislation
limiting the use of electronic tracking devices (ETDs), such as those
produced by Teletrac, Inc.

The device is about the size of a videocassette tape. When attached to a
vehicle it sends out a signal, enabling police to track the vehicle through
traffic unobtrusively and without resorting to a highspeed chase.

Tuesday Gov. Pete Wilson vetoed Senate Bill 443, which would have required
law enforcement to get a search warrant to use ETDs. Sponsored by
Republican Sen. Ross Johnson of Irvine, the bill enjoyed overwhelming
bipartisan support. The Senate passed it 334 and the Assembly 667. Of
local legislators, only Assemblyman Dick Ackerman, Republican of Fullerton,
opposed the legislation.

"I'm going to meet with Sen. Johnson at some point and figure out what to
do next," Sen. John Burton of San Francisco, the major Democratic supporter
of SB 443, told us Wednesday. He believes the likelihood of the Legislature
overriding the Wilson veto is limited. I just don't know," he said. "It's
very difficult."

Even though most Republicans supported SB 443, the major problem would be
GOP member' reluctance to embarrass a governor of their own party by
joining Democrats in the twothirds of votes necessary to reverse a veto.

In his veto explanation, Gov. Wilson rejected concerns regarding potential
violations of the Fourth Amendment, which guarantees the "right of the
people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures."

The governor insisted, "The preponderance of case law including two 1980s
decisions of the U.S. Supreme Court provides that the use by police of a
beeper to monitor the movements of a suspect, in public places, is not a
search" (emphasis in original).

But those two Supreme Court cases actually argue the opposite of the
governor's point:

U.S. v. Karo in 1984 indeed concerned a beeper that sent a signal police
could receive in a closely following patrol car but police obtained a
court order to use it. That's just what SB 443 would require.

U.S. v. Knotts in 1983 involved a beeper put into a drum of chloroform with
the owner's consent. But the case doesn't apply because SB 443 only
concerns instances where the owner does not consent.

Moreover, the Fourth Amendment isn't the only guiding document involved
here. Even stricter in requiring a court order is the California
Constitution, which stipulates: "The right of the people to be secure in
their persons, houses, papers and effects against unreasonable seizures may
not be violated; and a warrant may not issue except on probable cause... ."

Given that the governor's veto probably will not be overridden, the most
likely scenario, Sen. Burton said, is to return next year with a modified
bill. He wasn't sure what changes might be made to accommodate the
governor. "That's what I want to talk about with Sen. Johnson," he said.

In the meantime, the governor should reconsider his stance. As the actions
of his fellow Republicans in the Legislature show, there's increasing
concern in the GOP over privacy rights issues.

Voters in the 2000 presidential primaries might turn a questioning eye to a
politician who doesn't take seriously that right essential to personal
liberty.