Today the D.C. Circuit held that government use of a GPS device to monitor the location of a car on public roads is a Fourth Amendment “search” when conducted over a long-term period (in his case, a month). The case is United States v. Maynard, and it was written by Judge Douglas Ginsburg and joined by Judges Tatel and Griffith. If it stays on the books, it is a potentially revolutionary Fourth Amendment decision: It introduces a new “mosaic” theory of the Fourth Amendment that allows individual law enforcement steps that are not searches to become a search when collected together. A lot of readers are going to love it for that reason, and I expect it’s going to be a huge hit in privacy law and libertarian circles. But I don’t find the opinion persuasive as a matter of Fourth Amendment law: I don’t think a mosaic theory can work. So I wanted to blog about it, and then why I don’t think it’s persuasive.
I. Some Background
I’ve blogged before about whether installation of a GPS device to monitor the location of a car on public roads is a Fourth Amendment “search.” In my view, Supreme Court precedent is pretty clear here: It is not a Fourth Amendment search under United States v. Knotts, 460 U.S. 276 (1983), which held that the use of a “beeper” device to monitor the location of a car on public roads — a beepter being “a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver” — is not a search. Knotts held:
A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [the defendant] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.
In my view, the reasoning of Knotts applies to the use of a single GPS device to determine a person’s public location. That wouldn’t apply for use of a location device in a home or private place, as the Court held the year after Knotts in United States v. Karo. And I agree that as matter of policy, we might want a privacy statute to limit what the Fourth Amendment does not. But the Supreme Court’s statement, “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another” — seems to apply in the same way regardless of whether the device used to determine those movements is a beeper or a GPS device. You can read my extended analysis on that here: Does the Fourth Amendment Prohibit Warrantless GPS Surveillance?
Until today, all three federal circuits that have addressed the issue have agreed with that and held that use of a GPS device is not a search: United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007) (Posner, J.); and United States v. Marquez, 605 F.3d 604 (2010). In contrast, several state supreme courts have held that such surveillance is a violation of state equivalents of the Fourth Amendment. State courts are permitted to interpret their state versions of the Fourth Amendment more broadly than the federal Fourth Amendment, and many do: The practical effect of such rulings is to govern the state police in their state but not the federal government. So the precedents have been unanimous that use of a GPS device is not a search under the Fourth Amendment.
II. United States v. Maynard
That brings us to this morning’s decision by the D.C. Circuit in United States v. Maynard. Maynard is a complicated drug conspiracy straight out of The Wire. The defendant here, Jones, ran a nightclub in DC and was part of a conspiracy to sell crack and cocaine. As part of the complex investigation, which included wiretaps and all other sorts of investigative tools, the government slapped a GPS device on the Jeep that Jones drove around town. Perhaps I am just missing something, but I believe the only time the court tells us how the GPS surveillance was actually used is in a footnote on page 29-30. According to that footnote, the prosecution used the pattern of where Jones drove, and at what times, to show that he was in cahoots with the other members of the drug conspiracy. (Season 4 of the Wire? Or was it 5? I can’t remember.) The GPS was on the Jeep for four weeks. There’s some evidence that the government had obtained a warrant but it had expired by the time it was used here — see the footnote on page 38 — but it is agreed now that the government did not have a warrant to install the GPS device when it did. Jones now has challenged the use of the evidence in his case drawn from the
Maynard starts its analysis with a passage from Knotts that had left open the possibility of a different result in very different circumstances:
[The defendant] expresses the generalized view that the result of the holding sought by the Government [that use of a beeper is not search] would be that “twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision.” But the fact is that the reality hardly suggests abuse; if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.
Exactly what this passage in Knotts was supposed to mean is a bit of a mystery. Some folks think it means surveillance of many people at once. My own sense is that it was dealt with the next year in United States v. Karo, when the Supreme Court distinguished Knotts and held that a warrant is required for use of a beeper to monitor whereabouts inside rather than outside. But the DC Circuit takes the view in today’s decision that GPS surveillance, even just in public and for one suspect, is such a dragnet-type practice. Thus the DC Circuit concludes that Knotts is inapplicable and the court can reach its own conclusion as to whether use of a GPS device to monitor public location is a search.
Maynard then concludes that long-term GPS monitoring is a search. To understand the Maynard court’s reasoning, you need to recall the basic distinction in Fourth Amendment law between inside surveillance and outside surveillance. In Fourth Amendment law, stuff inside — inside homes, inside cars, inside packages, and hidden from public view — is generally protected. In contrast, stuff outside — stuff exposed to the public — is not protected. That creates an obvious problem for holding that GPS monitoring in public places is a search: The monitoring is occurring entirely when the GPS device is outside, obtaining information that an outside observer could obtain. That was the basic reasoning of Knotts: A cop physically following the car in Knotts could get the same basic information as the beeper provided.
Maynard rules that this reasoning does not apply when the monitoring is conducted by way of a GPS device over a long period of time. The court makes two arguments. The first argument relies on what I have called the probabilistic model of Fourth Amendment protection: that whether an expectation of privacy is reasonable hinges on the likelihood that monitoring will occur. As I have explained, the Supreme Court uses this in some instances and rejects it in others. In Maynard, the court adopts the probabilistic model (citing all the probabilistic-model cases) to the entirety of the monitoring that occurred (considered as a single entity) and says that it’s very unlikely that a stranger would conduct that extent of monitoring:
[W]e hold the whole of a person‘s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine.
(p 26). The court then addresses a potential counterargument to its view:
The Government does not separately raise, but we would be remiss if we did not address, the possibility that although the whole of Jones‘s movements during the month for which the police monitored him was not actually exposed to the public, it was constructively exposed because each of his individual movements during that time was itself in public view. When it comes to privacy, however, precedent suggests that the whole may be more revealing than the parts. Applying that precedent to the circumstances of this case, we hold the information the police discovered using the GPS device was not constructively exposed.
The main precedent on which the Court relies is a FOIA case, United States Department of Justice v. National Reporters Committee, 489 U.S. 749 (1989), which held that in interpreting the privacy exemption to FOIA, the privacy interests should be measured by the sum of the parts of all the documents involved, not each document by document. The Maynard court concludes:
The whole of one‘s movements over the course of a month is not constructively exposed to the public because, like a rap sheet, that whole reveals far more than the individual movements it comprises. The difference is not one of degree but of kind, for no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life, nor the departure from a routine that, like the dog that did not bark in the Sherlock Holmes story, may reveal even more.
As with the “mosaic theory” often invoked by the Government in cases involving national security information, “What may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene.” Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one‘s not visiting any of these places over the course of a month. The sequence of a person‘s movements can reveal still more; a single trip to a gynecologist‘s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story.
A person who knows all of another‘s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.
Finally, the court notes with approval that several states require a warrant for GPS surveillance, and that state courts have interpreted their state constitutions to reach the same result. The court also distinguishes the federal circuits that have gone the other way because they did not look at the aggregate impact of the monitoring, but only looked at the individual acts of monitoring: “The federal circuits that have held use of a GPS device is not a search were not alert to the distinction drawn in Knotts between short-term and prolonged surveillance.”
III. Why I Find Maynard Unpersuasive
Maynard is going to be celebrated by the New York Times, by privacy advocates, and by a lot of libertarian-minded readers. But strictly as a matter of Fourth Amendment law, I don’t think it’s persuasive. Maynard introduces a novel theory of the Fourth Amendment: That whether government conduct is a search is measured not by whether a particular individual act is a search, but rather whether an entire course of conduct, viewed collectively, amounts to a search. That is, individual acts that on their own are not searches, when committed in some particular combinations, become searches. Thus in Maynard, the court does not look at individual recordings of data from the GPS device and ask whether they are searches. Instead, the court looks at the entirety of surveillance over a one-month period and views it as one single “thing.”
Off the top of my head, I don’t think I have ever seen that approach adopted in any Fourth Amendment case. And if that approach is valid, then Fourth Amendment law is about to look very different than how it has traditionally looked. The Fourth Amendment regulates searches and seizures — that is individual acts of searching and seizing — and it tells the police what it can and can’t do based on what is a search. But if the Fourth Amendment recognizes a mosaic theory, then the Fourth Amendment will regulate entire investigations as a whole: The question will be whether the investigation measured in the aggregate amounts to a Fourth Amendment violation. Some law professors have tried to argue for such an approach — see, for example, Dan Solove’s articles. But it’s never been used in an actual case, as far as I know.
Much of the problem is knowing when the line is crossed when a bunch of non-searches become a search. The Supreme Court has stressed the need for clear rules that tell the police what they can and cannot do. But how do the police know when a mosaic has been created such that the sum of law enforcement techniques, when aggregated, amount to a search? Are they supposed to carry around a D.H. Ginsburg Aggregatormeter that tells them when it’s time to get a warrant? Take the case of Maynard. One-month of surveillance is too long, the court says. But how about 2 weeks? 1 week? 1 day? 1 hour? I have no idea.
Even stranger, the mosaic theory has the bizarre consequence of creating retroactive unconstitutionality. The Maynard opinion indicates that it would have been okay to monitor Jones for a short time. Let’s say that would allow monitoring for a few trips over the course of one day. At the end of that one day, the first day of monitoring would be constitutional. If the prosecution wanted to admit that evidence, it would be fine. But by continuing to monitor the GPS device for more time, that first day of monitoring eventually and retroactively becomes unconstitutional. It becomes part of the mosaic, and the key point of Maynard is that the entire mosaic is considered one entity.
This will place tremendous emphasis on defining the exact scope of the mosaic. If you’re a defense attorney, you now need to argue that the monitoring of your client was part of a broader mosaic to get that part tossed out. In the Maynard case, the scope of the one mosaic was clear: It was the GPS evidence from the month of monitoring. But I don’t know why it would have to be grouped that way. If you can group different pieces of evidence into mosaics, then you need a theory of grouping: You need a new theory to explain what parts of what surveillance are in the mosaic and what parts of what surveillance are outside the mosaic. This is a whole new type of Fourth Amendment challenge, and I don’t see what principles there are that could keep it from becoming an extraordinary mess.
Finally, and more mundanely, I find Maynard unpersuasive for the ways it ignores and misrepresents a wide range of Fourth Amendment cases and principles. To list a few:
a) The probabilistic model doesn’t really work in the technological surveillance setting. (Here I’ll be using the four models framework I developed in this article; give the 1st section a quick read if you want to follow it easily.) The Supreme Court has picked the private facts model in the technological surveillance setting, not the probabilistic model, for reasons that make sense as I explained here. The court ignores that by invoking the probabilistic cases, but not persuasively: The clear weight of authority in this setting is the private facts model, not the probabilistic model.
b) The court’s reliance on state laws for its view that the expectation of privacy is reasonable seems plainly foreclosed by Virginia v. Moore and California v. Greenwood.
c) Even if the court wants to say that this is the “dragnet” case referred to in Knotts, I don’t think it works to invoke that section and then essentially ignore Knotts. The opinion seems to use that “dragnet” section from Knotts as an escape hatch: And once it’s free, nothing from Knotts is relevant anymore. But Knotts is plainly the most relevant Supreme Court precedent here, and even if it’s distibguishable, the court needs to work within that framework.
d) The Maynard court’s reliance on a FOIA case is particularly weird. What’s the connection between FOIA and the Fourth Amendment? Privacy is a protean concept: You can’t just scan the precedents that use the word and then try to import the concept.
e) Judge Ginsburg should have cited Thurgood Marshall’s dissent in Smith v. Maryland as suport for his mosaic theory: The two are very similar. But then I suppose citing a dissent for authority is a bit dicey for a circuit judge.
IV. Looking Forward
I suspect DOJ will be filing a petition for rehearing in this case. Stay tuned.
Incidentally, this DC Circuit panel is 2/3 of the panel that created the constitutional right to drugs that the en banc court later overturned in Abigail Alliance. The two opinions are somewhat similar in their very libertarian outlook; I wonder if they will meet the same fate of being overturned en banc.
Chris Travers says:
Anyone else read this as “Music Theory?”
Honestly, it will be interesting to see where this goes. Are you assuming a summary reversal by the Supreme Court? That it may get real review? Or something else?
August 6, 2010, 3:02 pmruuffles says:
I went to that link and found the panel opinion here
http://pacer.cadc.uscourts.gov/docs/common/opinions/200605/04-5350a.pdf
That opinion was written was Rogers and joined by Ginsburg, but Griffith dissented. So while it is true that two judges were on both panels, only one judge was in the majority both times.
August 6, 2010, 3:07 pmJohn Bragg says:
IANAL.
But
August 6, 2010, 3:10 pm1. How is installation of a GPS device in my car without a warrant not a Fourth Amendment violation? How is it not trespassing and invasion of privacy at the very least?
2. So there is no finding of probable cause or reasonable search necessary for unlimited, 24-hour surveillance if it were done by police, in person, so long as they don’t peek in the window?
Chris Travers says:
Installation is clearly not a 4th Amendment search. The question is whether gathering data from it is a 4th Amendment search. Even under Karo, it strikes me that it well might be. Simply put, it may be fairly easy to rely on GPS data to determine that the car is in fact in the garage with the door closed and that strikes me as out of bounds in Karo.
This sort of analysis would be interesting however. It would essentially require search warrants beforehand because you never really know what the data will turn up before you get it. That was the government’s objection in Karo which the court held just not to be important.
August 6, 2010, 3:17 pmGreg Dodge says:
It’s almost always a bad sign when a judicial opinion needs a table of contents. It reeks of either being overdone or over-eager law-clerkitude, the surest sign of the introduction of an unnecessary new legal theory.
August 6, 2010, 3:23 pmJohn Hamilton says:
Without even reading the opinion, I can say this much in its favor: the development of new technology that touches on Constitutional rights, like here, is exactly the kind of case where courts should be offering new interpretations of the Constitution.
August 6, 2010, 3:29 pmAnon21 says:
It was actually Season 2. They put GPS devices on the cars of all the principals, which eventually put them onto the Greek restaurant where Frank has his meets with Spiros and the Greek.
August 6, 2010, 3:31 pmOrenWithAnE says:
I always thought that it was anchored on the concept of individualized suspicion versus fishing-expedition (to go along with the analogy of a drag-net). That there is a distinction between the government tracking a particular automobile for evidence of a particular crime and tracking citizens indiscriminately looking for a crime to investigate.
But if it’s a mystery to Orin then my understanding is quite probably wrong …
August 6, 2010, 3:35 pmNorman Yarvin says:
Technically, I’m supposing that the main difference between a GPS and a “beeper” is that law enforcement officers have to be constantly following the “beeper”ed vehicle in their cars, in order to determine its location — while with a GPS, you just place it on the car, and it reports everything via the cell phone system. This, to me, explains the “bit of a mystery” passage in Knotts: with “beepers”, the cops had to do serious work to track someone, while with GPS (the future, which the Knotts decision refrained from addressing) it wouldn’t be beyond the realm of possibility to add the devices to everyone’s cars, and track them everywhere.
August 6, 2010, 3:35 pmwohjr says:
But police are allowed to aggregate seemingly innocent conduct to create reasonable suspicion in all sorts of situations– driving around by the border, affirming or acting on informants tips. Shouldn’t those ideas play in here?
August 6, 2010, 3:46 pmzippypinhead says:
Looks like Doug Ginsburg has been inhaling again… I’d wager that the precedential value of Maynard has a shelf life roughly as long as it takes for the en banc D.C. Circuit to overrule the panel (unless the S.G.’s office decides to take it directly to a cert. petition, given the apparent Circuit split).
This part of the opinion is flatly wrong:
Obviously Judge Ginsburg has never paid attention to, for example, espionage or terrorism prosecutions, where the government presents evidence about how they manually surveil high-priority subjects 24×7 for extended periods of time (e.g., Robert Hanssen, the Russian “Illegals Program,” various homegrown Jihadists, etc.).
August 6, 2010, 3:48 pmSub Specie AEternitatis says:
With all due respect to the distinguished judges on the panel, this seems a very troubling cases to this non-Fourth amendment specialist.
1. How can the collection of information which would be available without the exercise of any sovereign power be a constitutional violation? Would collecting the same information using traditional, more labor-intensive means such as having teams of officers following the defendant 24/7 been constitutional? It seems that they would not have done anything I or any private citizen would be perfectly free to do.
2. Indeed, as John Bragg suggests, it is the installation of the device without a warrant that would intuitively be the more clear constitutional violation. For one, I suspect that I would find myself very much in legally dubious territory if I engaged in that conduct.
@Chris Travers
“Music Theory”? And I thought it referred to a theory of the Fourth Amendment based on the life and teachings of Moses. At least that would be spelled the same way!
“it may be fairly easy to rely on GPS data to determine that the car is in fact in the garage with the door closed and that strikes me as out of bounds in Karo.” But exactly what information does that reveal that would not be subject to public observation by mere surveillance or a hypothetical GPS device that automatically turned itself off when outside of public view? Given the magnitude of GPS error, it would have to be an enormous garage for any non-public information to leak out that way.
August 6, 2010, 3:49 pmSoronel Haetir says:
I don’t find the fact that a person lacks a privacy right on the public roads very informative here. The police can follow someone around all they like and the tailed motorist should not have any cause of action. That does not mean that the government should have the right to alter someone’s vehicle without consent which is what installing either a radio beeper or a GPS recorder entails.
The intrusion in the case of the GPS device is the trespass required for installation and removal, not the fact of operation, that merely compounds the injury.
August 6, 2010, 3:49 pmJonathan says:
Couldn’t the govt. avoid the problems with the mosaic theory by obtaining a warrant for the GPS device during the time that it’s used? If so, isn’t that practically what will happen, thereby avoiding many of the problems (viz. retroactive unconstitutionality)?
August 6, 2010, 3:51 pmSub Specie AEternitatis says:
@Norman Yarvin
So collecting some information is not a search and requires no warrant as long as the collection is sufficiently labor intensive, but when police collects exactly the same information using a labor saving device, it is a search? That sounds pretty novel to me. (And don’t cite Kyllo. There the distinction was that the information itself would have been completely unavailable absent non-widespread new technology).
August 6, 2010, 3:54 pmMike says:
I agree that there seem to be some issues with the judge’s approach… however, where is the line drawn and how do you justify it if not through this approach?
What prevents putting a GPS on every car in the city and tracking them at all times? What the constitutional distinction? What about a device put in someone’s clothing, with the data discarded when they are found to have entered a building?
Also, while observing someone driving from one place to another is definitely something a reasonable public could know, wouldn’t anyone following you around for a month be subject to laws against stalking?
Can a private citizen put a GPS unit on your car and track your movements all year?
I actually have no idea what the jurisprudence is on these issues, it just seems that you can end up very quickly in a place that I think very few people would consider in line with any even limited concept of a right against searches or of privacy. If you do not justify some line here through this mosaic concept, what do you use that doesn’t end on either extreme – either allowing tracking on public roads at all times without a warrant or never allowing it without a warrant? Either of these seem as though they would be poor outcomes in the view of most people.
August 6, 2010, 4:21 pmRexx says:
In Warden v. Hayden, 387 U.S. 294, 304 (1967). The Court held that “We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.” Thus, because the Amendment ”protects people, not places,” the requirement of actual physical trespass is dispensed with and electronic surveillance was made subject to the Forth Amendment’s requirements.
It seems to me that whether the electronic surveillance is a telephone or a GPS system it should be subject to the Forth Amendment’s requirements. It may be true that I have no legitimate expectation of privacy as I drive my car from place to place, but I do have an reasonable expectation that my car will not be broadcasting my movements as I go about my business. “The right of the people to be secure in their persons, houses, papers, and effects, . ..” if my car is not one of my effects just what is it?
August 6, 2010, 4:21 pmnotaclue says:
Sub Specie AEternitatis says at 3:49 p.m., “It seems that they [the police] would not have done anything I or any private citizen would be perfectly free to do.”
A man approaches a woman who is sitting at an outside table at a restaurant and tries to strike up a conversation. She politely rebuffs him and he leaves. Later that evening she leaves a shop and finds him standing on the sidewalk by the door. He says, “Good evening,” and gets into his car and drives away. On her way to work the next day, she recognizes his car driving behind her. In the middle of the morning, he calls her on the telephone.
You see where I’m going with this, right? In a situation like this, we call an aggregate of singly innocent and legal actions stalking. In US v. Maynard the judge called an aggregate of singly innocent and legal police actions a search.
I realize that normal-people reasoning and legal reasoning differ, but I see the judge’s point.
August 6, 2010, 4:21 pmJohnF says:
I think we are all missing the boat here. Under the new form of Constitutional jurisprudence pioneered by Judge Walker in California, mustn’t the court first take evidence on what people’s “reasonable expectation of privacy” is? Then, after a few pages of fact-finding, we can know whether we have an illegal search or not.
August 6, 2010, 4:27 pma poster says:
I haven’t read the opinion yet, but based on Professor Kerr’s description is reminds me of the initial (now-vacated) panel opinion in Murphy v. IRS, 460 F.3d 79 (D.C. Cir. 2006). The author there: Judge Ginsburg.
August 6, 2010, 4:28 pmChris Travers says:
If a reasonable expectation to privacy is one that society is prepared to recognize as reasonable, why not?
August 6, 2010, 4:35 pmWho lets the police use their driveway as part of a speed trap?!? says:
Labor-intensity is the issue here.
Thought experiment: Would it be constitutionally permissible for the state to create a panopticon-like world with a camera outside of every private residence or place of business that would observe and record the comings and goings of all people? After all, can’t these these comings-and-goings be legally collected the old-fashioned way (coffee-fueled stakeouts). And besides, if you’re not doing anything wrong, why should you care that you’re being watched?
The writers of the Fourth Amendment did not envision a world in which individuals could be observed outside of their homes (i.e., “in public”) with so little effort on the part of the state. Technology has created quite the privacy conundrum.
There’s a very simple solution that doesn’t involve even touching the constitution or its current interpretation: Simply reduce the amount of “public” property on which the state can legally engage in its warrantless spy activities and the problem magically goes away.
August 6, 2010, 4:39 pmSub Specie AEternitatis says:
@notaclue
Actually, I do see your point. Yet I do not believe that merely discretely following somebody in public places constitutes stalking. It may constitute behavior sufficiently suspicious to justify a Terry style inquiry, but is hardly sufficient to constitute a crime or something the police can otherwise lawfully prevent. Or a lot of private detectives are in legal trouble.
More broadly speaking, I find the notion that law enforcement should be free to do what any private citizen or organization may do, but should be subject to additional restraints (such as a warrant requirement) to exercise sovereign power to be quite attractive. Such a principle would set two of state legislatures’ more baleful tendencies–the massive over-criminalization of the conduct of private persons and the eagerness to empower their favorite agents–against each other.
But IANA4AL and know of no authoritative judicial embrace of this doctrine.
August 6, 2010, 4:52 pmOrenWithAnE says:
You should actually look up the statutes defining stalking before you make this claim again.
August 6, 2010, 5:11 pmSub Specie AEternitatis says:
@ Who lets the police use their driveway as part of a speed trap?!?
I do not quite understand the question you chose as your tag. I assume the answer is very few people and fortunately nobody has to. Involuntarily installing a speed trap on one’s private property would certainly be trespass and unconstitutional under both the Fourth Amendment and the Fifth Amendment (absent compensation, Loretto).
As for your hypothetical and argument, it does not seem to prove much.
First, in many densely-populated public spaces there already is nearly complete camera surveillance which is used by the police to investigate crimes without a warrant. You may call that “Panopticon.” I am unaware of a court that has held it to be a violation of the Fourth Amendment.
Second, your solution that the Constitution require a “reduc[tion in] the amount of “public” property on which the state can legally engage in its warrantless spy activities” that seems logically tenuous.
For example, assume that I am observed walking onto the street, covered in blood, and coming out of a house in which a murder is subsequently found to have occurred. You say that if it was a police camera installed on a public right of way that did the observing, my right to privacy has been violated, I have been searched in violation of the Fourth Amendment, and am entitled to have all such evidence suppressed.
But what if it was a cop just walking his beat on the same street who did the observing? Did he violate my privacy too? Surely he must have for he observed exactly the same from exactly the same vantage? So I imagine you’d argue his testimony must be suppressed too in order to protect my Fourth Amendment rights.
Or perhaps not? In that case, whether I have a reasonable, expectation of privacy to walk out of a murder scene onto a public street covered in blood depends on whether I am lucky enough to be observed by electronic or human eyes? Something I could not possible even have known before I stepped into the street?
No, any interpretation of your position seems very hard to defend logically.
August 6, 2010, 5:12 pmMichael Ejercito says:
Nothing.
There is no reasonable expectation of privacy on public roads.
If hidden cameras were used to record the content of garage interiors, it might be an issue.
How is that different from people following you around?
August 6, 2010, 5:38 pmScott Lazarowitz says:
Supposedly, we all have inalienable rights, among them the rights to life, liberty and the pursuit of happiness.
Hasn’t freedom of movement been considered one of our God-given inalienable rights? I think so. And if we have the right of freedom of movement, then we have a right to be free from our movements tracked by the State.
Frankly, it doesn’t matter what the Constitution states, or what was decided in all those court cases. We either have inalienable rights, or we don’t. And we have a right to freedom of movement or we don’t.
But the camel has been inside the tent for many years now, especially now that the Obommunists are in charge.
August 6, 2010, 5:42 pmben says:
It may not violate the 4th Amendment, but I certainly hope its illegal to put GPS on vehicles without a warrant. What remedy is available?
August 6, 2010, 5:43 pmJohn A. Fleming says:
What do we teach our kids? Don’t look in other people’s windows. Don’t look in other people’s cars, whether they are driving or parked. Keep your hands off other people cars. And the police can tail you for any time for any reason, and if you notice them, you can either ignore them, go talk to them, or try your best to shake the tail. (Well, maybe we don’t teach them this last, but they learn it from TV.)
Is to unreasonable to expect that the law must remain a faithful adherent to our traditions of what is private and public?
While the 4th amendment, in its language, does not clearly cover this situation, what is clear is that the police can’t invade someone’s home to place a A/V bug without a warrant, and they likewise shouldn’t be able to put a bug on the inside of your car, invisible from the owner/driver, without a warrant. And as Scalia wrote, they have to get a warrant to publicly monitor the invisible emanatations from your home, so the vehicle bug likewise shouldn’t be visible on the outside of your car without a warrant.
I mean no offense to anyone, but it’s clear that without periodic re-affirmations by We the People to the founding principles, constitutions that limit government powers have a finite lifetime of a few generations of men. Over time, the practicioners of government power will build up a plethora of interlocking well-intentioned exceptions and innocuous interpretations, that unshackle the government from any effective constraint. The rachet of government power moves without difficulty in one direction only. It seems Ginsburg tried to move it the other way, and his peers will not permit that. For all the best of reasons, of course.
August 6, 2010, 5:55 pmOrin Kerr says:
I was thinking of responding to Scott Lazrowitz, but after I got to “Obommunists”….
August 6, 2010, 5:56 pmKendris says:
RFID tracking devices will soon raise similar legal issues.
It’s easy to attach a tiny RFID to a person’s clothing or belongings without their knowledge, even just brushing by them walking down a street. External RF sensors can then uniquely identify that person’s presence or movements at specific locations of interest. It’s not as long-range & flexible as GPS vehicle tracking… but more reliable in tracking a specific person (and never needs new batteries).
Federal intelligence and law-enforcement agencies are no doubt using some form of this personal RFID tracking technology already.
August 6, 2010, 5:57 pmGarrett says:
Why is it that if the police follow around someone that doesn’t know them while armed it’s called policing yet if I do the exact same thing it is called stalking? If stalking is a criminal offense then continuous monitoring should at least be limited.
August 6, 2010, 6:00 pmwhit says:
this to me is the classic example of judges ruling based on the constitution they wished we had, instead of the one we do have (sorry to get all rumsfeldian).
contrast with the WA state constitution. ours recognizes a right to privacy. with that in mind, clearly installing a GPS device on a car is a privacy violation and thus should require warrant or PC or whatever. and our state courts have already ruled that way
but it is NOT a search. look at it this way. a GPS on a car is just an extremely efficient version of surveilling from the air. iow, a helicopter could follow a car around 24/7 (except it would be very expensive) and not need a warrant to search.
following a car around 24/7 is clearly something that invades privacy, but to call it a search is ridiculous. modern technology makes such things easier and convenient but it’s no more a search than planting a camera at the intersection and along every public road would be a search. that kind of thing is just a technological equivalent of placing a cop along every road and at every intersection. clearly not a search. modern technology just makes this actually DOable on a large scale and w/o a tremendous outlay of cash and manpower.
what’s the REMEDY? the remedy is legislation, not making up stuff that isn’t in the constitution. any state legislature, or the citizens via initiative (in states that have such procedures), or the congress can pass laws. or even a constitutional amendment.
the general principle is the plain view doctrine here. again, that applies to airplanes or helicopters which could follow a guy around in a car all they wanted to because as long as they are not in some place they cannot lawfully be (standing issues aside when they are on somebody else’s property) they can follow a car around to the ends of the earth. this is just an efficient and very surreptitious way to do the same thing a helicopter could do, and sometimes does do
again, since WA state has a privacy interest we don’t allow that kind of stuff. we even limit such things when it comes to viewing marijuana patches in people’s yards etc when viewed from above. those are totally ok in regards to the 4th, but not ok in regards to our constitution.
there’s lots of things i WISH the constitution protected. heck, i wish it protected a ‘right’ to smoke mj in the privacy of the home w/o govt. intrusion. but it doesn’t. that’s why the remedy is legislation or amendment, NOT judicial activism
August 6, 2010, 6:02 pmSub Specie AEternitatis says:
Even to an observer with no more sympathy for the “Obommunists” than you, this argument is a non-sequitur.
Yes, you do have a freedom of movement. Yes, that right is even protected by the Constitution and the courts. But, no, you do not have a right to an invisibility cloak. So, no, you do not have a right not to be observed in public by anybody else, including the police.
August 6, 2010, 6:03 pmFub says:
OK, let’s look.
California Penal Code Section 646.9:
notaclue only omitted an express threat. The fact is that any creative prosecutor could successfully bring a stalking charge if the stalkee merely claimed to feel threatened. Any tiny indicia of communicating a threat, such as telephoning the stalkee would cinch it. The fact is that most anybody who was followed that way would likely feel threatened, including you or me.
Anyone capable of following another so assiduously is capable of inflicting some harm to the stalkee. Therefore the threat to stalkee’s safety is credible and the stalkee’s fear is reasonable. The stalker intended to follow them, therefore the threat is intentional.
Therefore a case of criminal stalking exists.
August 6, 2010, 6:03 pmwhit says:
exactly correct. as somebody who has done TONS of surveillance on city streets, etc. i do not, and never have needed a warrant to follow somebody around
August 6, 2010, 6:04 pmCathar says:
No argument would be complete without a hyperbolic hypothetical so let me offer this one: the police put GPS trackers on all the cars they see parked at the local mosque, then analyze the records for criminal leads. They see that one of the cars stopped for five minutes at a local convenience store at the same time as an armed robbery was committed there by masked bandits who arrived, took money and a carton of cigarettes, then fled in an automobile. (While analyzing GPS records the police incidentally learn that two mosque congregant’s cars visit X-rated video stores, three visit liquor stores, and two others visit rooms-by-the-hour motels. While none of that provokes any official action, it does provoke crude IM’s on the police mobile data network and at least one marital spat between a congregant and his wife whose brother-in-law is a police officer.)
The police use GPS data to find the suspected robbery car’s current location and pull it over. While questioning the driver they search the car without his consent (relying on the automobile exception to the Fourth Amendment) and find some of the cigarette packs (traceable to the convenience store robbery by tax-stamp serial numbers). The police arrest the driver (without a warrant).
Later in court the defendant driver wants the police’ cigarette-pack evidence suppressed as fruit of an illegal search. Normally such a motion would be ruled frivolous, but in this case the defendant argues that the GPS tracking was an unconstitutional search, so police should never have stopped his car. The police say that the movements of the defendant’s car on public streets are not private information, that a witness– had there been one– could have described the car’s visit to the convenience store, and that GPS tracking is logically just the same as having police officers follow people around to see if they do anything bad– something the Fourth Amendment does not preclude, and which cops frequently do.
What’s the right answer here? Should criminal evidence against an individual suspect be suppressed because the police found it by warrantless GPS tracking? Does it matter how many non-suspects the police GPS-tracked? After all, none of the other GPS-tracked drivers are in court. Does it matter how the police chose cars to GPS track? What if they had put GPS trackers on cars parked outside an illegal dogfighting venue instead of a mosque? What if the illegal dogfighting venue shared a parking lot with a storefront Baptist ministry?
Like Norman Yarvin said, there’s a real difference between a GPS tracker and a bumper-beeper: the former doesn’t tie up police manpower. (Not all GPS trackers report by radio (cellular or otherwise), some just record movements in a memory for later retrieval by police.)
Now in some sense, making the police more productive is a good thing, but whenever the cost of proper police activity goes down and therefore activity goes up, improper activity goes up along with it.
It’s like the “courthouse records on the web” problem: when you had to send a costly investigator down to the courthouse to look up stuff in dusty old ledgers, you only did so when it was important. Criminals rarely performed speculative records searches hoping to find data to support blackmail or identity theft. With digitized records on the web it’s trivial to run computerized searches through the data and pull out quasi-private information formerly protected by the sheer cost of discovering and correlating it– data which the sources might never have provided if they had realized it would later be splashed all over the Internet.
While I accept most of Orin Kerr’s objections to the “mosaic” theory, I do think one could build off the “dragnet” question. GPS trackers are more intrusive than bumper-beepers (or “police tails”) because they’re much, much cheaper for the police– they enable the police to conduct dragnets (that is, GPS’ing many cars, or even a few cars of people the police dislike, in hopes that some of the GPS records will point to criminal activity). And since it’s basically impossible in the context of a single criminal case to try the general conduct of the police, a prophylactic rule against the warrantless use of intrusive but cheap surveillance devices against individuals is the only way to deter police GPS dragnets.
Could such a rule be justified on Fourth Amendment grounds alone (no need for a statute)?
I think so. “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons[2] or things to be seized.”
The Constitution recognizes a right of “the people” as well as individual “persons” to be secure in “their” stuff against “unreasonable” searches and seizures. Mass GPS tracking is unreasonable and violates the people’s security (it’s more likely to provide the police with evidence of shameful activity than evidence of crime). What is unreasonable when done at police discretion may be reasonable if authorized by a specific warrant issued upon probable cause [by a neutral magistrate]. GPS tracking done pursuant to a probable-cause warrant is reasonable. Unlimited GPS tracking is not reasonable, even though the police could theoretically have chased a suspect around themselves, because it is unreasonable for the police to track many people secretly and the courts can only address the general issue by rules which apply to particular cases.
August 6, 2010, 6:09 pmwhit says:
utter rubbish. fwiw, private detectives do this stuff all the time (for evidence of cheating on a spouse or insurance fraud or whatever).
i’ve already made the point numerous times that all sort of DV laws and procedures are kneejerk and overbroad and unconstitutional. simply put, you have no “right” to be free from somebody following you around in public.
there is a huge difference in stalking cases, and the threat thing is key. the remedy for those being followed around, that have not threatened them etc. is for them to get a protective order against that person that can, among other things, prohibit that person from surveilling them. i’ve seen many such orders written, and not all are DV cases. many involve neighbor disputes, etc.
our stalking statute does not require an express threat but does require the stalkee to be placed in fear AND that the fear be reasonable and that the stalker should have reasonably known that the stalkee would be placed in fear. the stalking must also be “without lawful authority” which pretty much exempts a police investigation or an insurance fraud type investigation etc.
i also know from working with prosecutors that filing standards and case law means they won’t TOUCH a stalking complaint unless there is a lot more than joe blow following somebody around. if joe blow had previously assaulted that person, or made threats, iow gave the person a REASON to be in fear of joe blow, then that would be a critical decision
but in brief, there is no right not to be followed around or viewed while in a place that the viewer has a lawful right to be. that’s what makes any # of video cameras (mostly privately owned) legal when they follow people on the sidewalk, for instance
August 6, 2010, 6:13 pmOwen H. says:
I am curious; if I were to place a GPS unit in/on someone’s car without their knowledge and consent, would that be considered a crime or otherwise legally actionable?
August 6, 2010, 6:18 pmDilan Esper says:
I really don’t know enough about the Fourth Amendment to register a comment on the substance here.
But I must say, I don’t buy Professor Kerr’s “retroactively unconstitutional” argument. This happens whenever there’s a threshold that has to be reached before a constitutional violation occurs. For instance, in the Due Process voluntariness context, it’s permissible to use various interrogation techniques in isolation, but you put them together and it makes for a constitutional violation. So, something that wasn’t unconstitutional when it was done (such as seating the suspect on an uncomfortable chair in a cold interrogation room) becomes unconstitutional when combined with a number of other actions (holding him incommunicado, interrogating for 12 hours straight, threatening the suspect, bringing vicious dogs into the interrogation room, etc.). That’s just how threshold tests work.
And that’s what the panel is doing here. It’s not exactly a new concept that something that might be permissible in isolation could become impermissible when combined with other conduct.
August 6, 2010, 6:20 pmwhit says:
just from my state’s penal code, i cannot think of any law that would be violated. there might be some kind of privacy thing you can SUE them for, but i don’t know much about civil law and suing (i did win a small claims court case last year though) :)
assuming you placed the gps on a car while it was parked in a public place or a place you had legal right to be (like a parking lot for a shopping mall), i don’t see a crime.
again, when people ask “is X illegal?” you have to ask that with the understanding that what is perfectly legal in one state might be a felony in another state. and of course i’m not referencing federal law.
i do know fwiw, that parents sometimes do such stuff towards their kids and they are clearly ok legally with doing so, but of course kids have pretty much no privacy (except for HPPA etc.) when it comes to parents. parents can search a kids room for example w/o consent or go through their computer etc.
August 6, 2010, 6:23 pmAnon23 says:
As a matter of purely personal opinion, I like that the DC Circuit is willing to look at both the individual steps and the end result in assessing the impact of technology on the 4th amendment.
Same issue logically arises with license-plate readers installed along interstates – they obviously capture publicly visible information, but it’s the aggregation and use of probabalistic models to look for “suspicious behaviour” that is new. Does a computational model identifying certain types of behaviour (for example, the mere act of driving from NY to FL and back, be it for spring break or to move a trunkload of cocaine) actually mean there is reasonable suspicion that a crime has been committed, thereby justifying a stop?
I expect that in reality, it’s a boon to the DEA in assessing which cars to pull over for “failure to use a turn signal” and the like. Is “plate readers + data mining + identification of particular target vehicles + looking for any plausible excuse to initiate a stop” constitutionally problematical? None of the steps are, but the end result makes me feel a little weird – they’re pretextual stops that likely never would have happened absent the data mining, but there’s no way to prove it in an individual case.
August 6, 2010, 6:29 pmSub Specie AEternitatis says:
Not quite.
Arguably there are situations, like the ones you describe, in which the Constitutional violation arises out of a combination of conditions A, B, and C even though each of these standing by themselves or even in pairs would be insufficient.
So, A can occur, then B is added to it, and only when we put C into the mix too, the Constitutional violation occurs and the appropriate remedy kicks in. But in this case, the violation temporarily begins only when C occurs. As long as it was just A or just A and B, no violation has occurred.
In your example, any statement after C kicks in would be suppressed. But earlier statements would not because there had not yet been a violation.
Something quite different occurs “Mosaic” test pronounced by the D.C. Circuit. Again, A, B, and C (three subsequent days of surveillance, let’s say) need to have occurred for a violation to exist. But under the Mosaic test, once C occurs then retroactively everything that occurred before when only A or A and B existed becomes a violation, unconstitutional, and subject to suppression.
In other words, you cannot determine whether A or A and B were a violation until later depending on whether C occurred or not. That is quite a doctrinally and logically difficult and unusual posture.
August 6, 2010, 6:33 pmt1 says:
With the advent of drones, that’s not so much a thought experiment as a data-storage and analysis problem.
August 6, 2010, 6:34 pmOrenWithAnE says:
That’s exactly what the dicta in Knotts defers to another day. A dragnet-style of data collection.
That is also emphatically not the kind of conduct at issue in the search today.
August 6, 2010, 6:34 pmwhit says:
nothing to prevent a legislature from forbidding a pretextual stop
in my state they are prohibited, and that’s due to our constitution (again, a right to privacy). the same was true when i worked in hawaii.
i hate to belabor this point, but it seems to me the remedy is legislation, initiative, or amendment NOT pretending stuff that isn’t in the constitution is there.
August 6, 2010, 6:34 pmOrin Kerr says:
Dilan,
No, I think you’re wrong. In the case of due process voluntariness, it is not the individual steps leading up to the confession that are constitutional or unconstitutional. Rather, it is obtaining the confession itself that is constitutional or unconstitutional, which is measured by the totality of the circumstances at the end. You don’t have any retroactive unconstitutionality because there isn’t a confession to evaluate as compelled or voluntarily until the end of the interrogation. That’s different from the fourth Amendment setting, where the evidence is accumulated over time, step by step.
August 6, 2010, 6:37 pmwhit says:
that’s an excellent point and does distinguish it from the interrogation example given. at some point, stuff that keeps being done OR the length of time it is done can be the “last straw” that makes what was a lawful interrogation, into a coercive one, and thus suppressable. but all the stuff the suspect admitted (if anything) BEFORE it reached the coercive stage IS admissible, which is entirely different than the mosaic thang, which looks at everything in retrospect at once.
August 6, 2010, 6:38 pmFub says:
Read notaclue‘s fact pattern again. His hypothetical (male) stalker repeatedly confronted the putative (female) stalkee, repeatedly approached and spoke to her, and telephoned her. All that after being rebuffed when asking for a date. Typically PIs looking for cheating spouses don’t do those things. If they do, they are skating on very thin ice for harassment, the alternative element in the stalking statute.
August 6, 2010, 6:38 pmOrenWithAnE says:
Then lobby your legislature to make ‘failure to use a turn signal’ not a crime.
You break the law, you can be seized.
August 6, 2010, 6:42 pmwhit says:
oh well then no doubt that would be stalking under my state’s statutes and i presume many others.
what is interesting about stalking statutes is that generally speaking, it is NOT the surveillance no matter how extensive that is ever the problem. it is only IF the person followed becomes aware of it AND her subsequent fear (and it being reasonable bla bla bla) that matters.
iow, a very successful stalker. iow, one that can follow w/o being detected is not breaking the law – ever. because unless and until he is noticed AND there is a negative reaction, no law is broken. thus, it’s not what he’s doing, it’s his unsuccessful (assuming he doesn’t want to be seen which is not always the case) execution that triggers the unlawful aspect.
at least as our law is written, one can surveil to one’s hearts content even a person one had threatened numerous times, etc. as long as one is not detected by the victim (or i assume made aware by law enforcement) no crime is broken
August 6, 2010, 6:44 pmOrenWithAnE says:
I thought it was using the confession in trial that was the violation …
August 6, 2010, 6:45 pmAnon23 says:
White sez:
I’ll agree that Whren v. US certainly tossed the football back the the legislatures as far as pretxt stops goes.
August 6, 2010, 6:45 pmwhit says:
well, first of all, it’s not a crime in most jurisdiction, it’s an infraction.
second of all, you don’t have to get rid of laws against failing to use a turn signal, you CAN outlaw (either through legislation or case law depending on your constitution) pretextual stops
in my state, it is perfectly ok for me to stop a car for a turn signal violation
however, if my reason for the stop is merely a pretext to investigate something else, it’s not ok.
setting aside the subjective review of officer intent, that’s how it’s done
so, it’s not an either/or as you say. there are other options
August 6, 2010, 6:46 pmSub Specie AEternitatis says:
Fair enough–I was speaking in shorthand. The Constitutional violation is indeed the admission of an involuntary confession. But whether a confession is involuntary is determined by the circumstances at the time of the confession and no subsequent act will retroactively turn a voluntary confession into an involuntary one. Agreed?
August 6, 2010, 6:49 pmMark Horning says:
To me this seem the equivelent of wire-tapping. You need a warrant to install a wire-tap, you should need a warrant to violate someones property to install a GPS transciever.
There is an expectation that a telephone conversation in public may be overheard, there is no expectation that every conversation is being monitored.
There is an expectation that if I drive somewhere, I may be followed. There is no expectation that every move will be followed…
August 6, 2010, 6:51 pmwhit says:
actually, it’s a bit more complicated than that. when the courts ruled that confessions could be tossed out due to miranda violations, etc. they still allowed them to be used (generally) in sentencing or to impeach the suspect if he testified or against OTHER parties (who have no standing to protest the violation of somebody else’s rights)
what cops in some jurisdictions started doing, and they even taught this in interrogation classes, was that once the cops realized in a given interrogation that they weren’t going to get a confession via means consistent with miranda, etc. they would go beyond miranda because even if they got coerced confession, it could still be used against others, and to impeach the defendant if he testified and against codefendants or defendants in other cases. i don’t recall whether the courts (which were reviewing this) came to a conclusion on this. in essence, cops were intentionally violating miranda to get evidence when miranda compliant steps failed, because it was still useful , even if not as direct evidence.
depending on whether a state adhered to ‘cat out of the bag’ principles, cops could also get a statement pre-miranda, THEN mirandize, thinking that 1) at least they get a confession and if they didn;’t get one post miranda, they could argue miranda wasn’t required and possibly get it in 2) even if it was suppressed, and they got no statement post miranda, they had it for use as noted in the previous paragraph 3) and if they also got a statement post miranda, no harm no foul
iow, it was win/win/win
sleazy tactics, arguably…
August 6, 2010, 6:53 pmSoronel Haetir says:
If you really need a search or seizure hook, you have to search the car (however superficially) for a spot to put the recorder (for which it will both remain secure and undetected). And driving the car around with the recorder consumes some (admittedly trivial) amount of fuel. That fuel is now being put to the government’s use rather than the lawful purchaser’s (or at least someone who is likely in close relationship to the purchaser).
Here’s a question, say the target of such surveillance discovers the recorder, can he be punished for not returning it? Can adverse jury instructions be given based on removal of such a device?
August 6, 2010, 6:55 pmOrin Kerr says:
Mark Horning,
The problem with the wiretap comparison is that the government needs a warrant to wiretap for one second. Every bit of wiretapping is a search; every bit of it requires a warrant. There is no aggregation. Here the court says short-term surveillance is fine, but that it’s long term surveillance that’s a problem.
August 6, 2010, 7:07 pmOrin Kerr says:
OrenWithAnE,
You’re thinking of Miranda. Forced confessions under the voluntariness test are different, see Chavez v. Martinez.
August 6, 2010, 7:08 pmzippypinhead says:
In fact, I am almost certain that Judge Ginsburg himself can be monitored almost continuously by videocam from the moment he leaves the D.C. Federal Courthouse at the camera-infested corner of 3rd and C Streets, to at least until he passes through the last controlled intersection in his neighborhood on the way home. And not only by reviewing historical surveillance footage – the D.C. police/traffic cameras have been networked with many Federal and privately-owned cameras in the MPD command center, although they claim they don’t necessarily monitor them in real time except during special events, states of emergency, etc.
We’re already there to some extent. The multi-state EZ-Pass toll transponder system records date, time, location and registered vehicle type whenever you enter or leave a participating toll road or parking garage, and allows easy extrapolation of other information like average speed. While I’m not personally aware of EZ-Pass data being used in criminal investigations, I’d be shocked if it hasn’t been. There are press reports about how EZ-Pass information has been subpoenaed and used in divorces and other civil litigation. And the D.C. Metro transit system’s SmartTrip RFID cardpay system has also just been upgraded and collects/stores a lot more detailed info about your whereabouts in the transit system and parking garages than it used to.
August 6, 2010, 7:13 pmDilan Esper says:
In your example, any statement after C kicks in would be suppressed. But earlier statements would not because there had not yet been a violation.
1. I am not sure this is correct, as a matter of Fifth Amendment law.
2. Even if it is correct, that’s a remedy issue, not a violation issue. I am quite sure you can get damages in a 1983 action for all three parts of the unconstitutional action. The defendant wouldn’t get a jury instruction that the first two are unrecompensable.
August 6, 2010, 7:22 pmDilan Esper says:
No, I think you’re wrong. In the case of due process voluntariness, it is not the individual steps leading up to the confession that are constitutional or unconstitutional. Rather, it is obtaining the confession itself that is constitutional or unconstitutional, which is measured by the totality of the circumstances at the end. You don’t have any retroactive unconstitutionality because there isn’t a confession to evaluate as compelled or voluntarily until the end of the interrogation. That’s different from the fourth Amendment setting, where the evidence is accumulated over time, step by step.
It would be easy enough to structure a hypothetical where it was step-by-step in the voluntariness context, however. For instance, suppose the information dribbled out during the interrogation as the officers put and more pressure on the suspect. Would a court then say “OK, there was no Fifth Amendment violation until 1:30 p.m., so everything before then is usable and you can’t sue for damages for any of the conduct up to that point”?
EDIT: I should make clear, you might have to meet the Fourteenth Amendment shock the conscience test rather than merely showing a Brown v. Mississippi violation to get damages. But if the totality of conduct violates Rochin, I am quite certain that you get to present it all to the jury and get damages for all of it, not just those portions that occur after a specific moment when “the line was crossed”.
August 6, 2010, 7:24 pmFub says:
I’ve wondered about that too.
There is at least a reasonable argument that the device is abandoned property.
Proving that defendant removed it could be interesting. Maybe it fell off on a rough road. It would also provide a moral hazard opportunity: state actor could intentionally attach a device such that it would fall off, then argue that defendant removed it.
But the way America has gone in my lifetime, I think more and more officials see Von Dannersmarck’s The Lives of Othersas a wish list.
August 6, 2010, 7:43 pmwhit says:
i think if he finds it, he is subject to the same laws about found property that apply to other people in his jurisdiction. in ours, you make a report, and if nobody claims it in X days, you get to keep it (in brief)
August 6, 2010, 8:02 pmwhit says:
it’s not abandoned property. and fwiw, if it’s like other devices we use, it’s going to be clearly marked “Property of X ”
in my jurisdiction, if you find property, you are supposed to by law report it to police. if it isn’t claimed after a certain period of time, you have the right to keep it. there are certain exceptions to this (you can’t keep a found firearm or motor vehicle iirc), but that’s the general rule.
if you find a wallet with a 1,000 in it and no id, you can’t keep it as “abandoned property”. you must report it as found property. if nobody claims it (and I am not exactly sure how you would prove it’s YOUR $1000. maybe if you made the lost property report before the found property report came in, etc.), you get to keep it after a certain # of days.
with landlords, etc. when a person is evicted or abandons a property, there are very specific procedures they have to go through before it’s considered “abandoned” to the extent they can seize it – iirc, they have to place a notice in the newspaper, etc. and wait a period of a certain # of days.
finders keepers IS the law, but it’s not as simple as you find it, and you can keep it right away.
August 6, 2010, 8:07 pmFredosaurus Rex Friday XIII says:
I have an expectation that the government will not modify my vehicles in order to track me. What sort of expectation is that?
I also think I can reasonably expect that my vehicles will not broadcast their whereabouts beyond line of sight. For those who like to look for natural bright lines, I think that’s one of them.
August 6, 2010, 8:52 pmRexx says:
I am sorry that it took me so long to get back with my response but I have two young horses that have just started saddle training and that requires a lot of riding.
The different is two fold. First my property, without my permission, has been hijacked to provide a log of my movements. And secondly I am being required, by the device in my car to testify against myself if I should be doing something illegal.
August 6, 2010, 8:54 pmSoronel Haetir says:
Whit,
I have to say that seems like a bad rule when it comes to property deliberately placed during trespass.
August 6, 2010, 9:00 pmRexx says:
Failing to use a turn signal give the officer the right to stop and cite you, but it des not give him the right to search you without probable cause.
August 6, 2010, 9:19 pmJohn Smith. says:
I have always wondered how you can distinguish a public place from private property. I think a better fight for the case would have been that while roads are public places where no amount of privacy is expected versus publicly accessed private property. Some public places are also private property. If you go to walmart you are at a public place but walmart is generally the property owner. Therefore private property. So does that mean a warrant is not needed to search a vehicle at walmart??? Of course it it is needed. I look at public property as being places maintained by the state or federal governments. What could solve all of this is what level of privacy is available in privately owned public place.
August 6, 2010, 9:20 pmwhit says:
how do you know there was a trespass?
i already addressed this. it depends on where your car was parked when the device was affixed
August 6, 2010, 9:21 pmSoronel Haetir says:
whit,
The trespass is the access to the vehicle itself. Even if the car were sitting in the parking lot in front of city hall when the device was installed I would maintain that accessing a vehicle in the manner required to attach a recorder such that it will not be noticed is a trespass
And you completely ignored the fuel seized. :)
August 6, 2010, 9:31 pmArthur Kirkland says:
One answer to every problem of this type is to eliminate qualified immunity for Constitution-trampling public officers. Juries (tempered by judges) could decide whether a law enforcement agent violated a citizen’s rights by using infrared imagery, tracking devices (although I do not understand how implanting a device is lawful), or whatever technological advance develops. The understanding that abusing a citizen could lead to ten years in prison, or to checking the children into a homeless shelter, would be a natural, effective and just governor on those entrusted with government power.
I would expect the freedom-loving and -protecting liberal-libertarian alliance to be willing, in general, to rely on this market-based solution.
August 6, 2010, 9:32 pmwhit says:
there are already distinctions. there are private properties where there is access by invitees or licensees , such as walmart.
anybody assumes that (during hours of operation) they can be in a walmart parking lot. walmart can revoke that by telling people they need to leave, and if the person refuses they can call police and have the person trespassed.
this is all ANCIENT case law and stuff nobody even argues. walmart is open to the public, but is privately owned. like most stores. they have the right to revoke the permission of any individual, otherwise people feel free to go there.
a warrant is generally needed to search any vehicle, no matter where it is parked, with a few exceptions. but police do not need permission from walmart, and even if they violated WALMART’s privacy rights, a customer of walmart has no standing to protest somebody else’s privacy rights.
generally speaking.
August 6, 2010, 9:36 pmwhit says:
you can “make that argument” but i can tell you that in my state, it’s complete hogwash
they are no more trespassing than if somebody puts a flyer under your windshield wiper, while you are parked there.
fwiw, you can’t charge somebody in my state with “trespass” for approaching and even (god forbid) touching the outside of your car.
most states have laws against entering a car w/o permission (which always refers to trunk, engine compartment, or passenger compartment) and some actually require a crime to be committed within, although – like burglary, it sometimes can be inferred
regardless of what you “maintain”, we have these pesky things called laws. i can “maintain” that little johnny dirtbag should be arrested for walking up to my police car and writing “cops suck” in the dust on my windshield. i would be wrong
August 6, 2010, 9:51 pmSoronel Haetir says:
Perhaps I am wrong, but I am assuming that such devices are generally attached somewhere on the under-body, perhaps if they are small enough and the bumper design allows they could go inside a fender (although few modern designs I’ve seen would allow that). I would say that having to attach something to the under-body, finding a spot, possibly clearing it off etc is far more like rifling through a trunk than it is to placing a flier under a windshield wiper. It goes to the degree of intrusion into the vehicle owner’s domain, even where that vehicle is otherwise in public.property owner’s.
And even when it comes to things placed on cars you can run into trouble. Even if an egging were conducted by breaking the eggs into a bowl and pouring the results over the car rather than breaking the shells against the car itself I doubt you’d find many people who would say the difference really mattered. So it’s not like there is an existing free-standing license to put stuff on cars that happen to be in public.
August 6, 2010, 10:24 pmOrenWithAnE says:
Of course not. It does give him the right to not search you by running a drug dog around the outside of the vehicle though. See, e.g. Illinois v. Caballes
August 6, 2010, 10:30 pmwhit says:
and again, this is where ADDITIONAL constitutional protections offered by state constitutions come in handy. lots of states you CANNOT do that, but under the federal standard you can.
August 6, 2010, 10:33 pmDavid Schwartz says:
Of course, because this has no effect whatsoever on your use of the car. But if it had a significant effect, it would be a trespass to chattels. A GPS tracker significantly impairs the ability to use the car to conceal one’s whereabouts or behavior — an entirely legitimate use of cars widely appreciated by teenagers around the world.
August 6, 2010, 10:35 pmwhit says:
i’ll make this as simple as possible
if johnny dirtbag walks up to your car and placed a magnet under your car did he commit a crime?
no.
not in my state.
it’s not trespassing, it’s not ANYTHING under our penal code
so, you can THINK it’s like rifling through a trunk, but it isn’t. officers are simply attaching a little device to the car. you can argue it’s a search based on what information the GPS device provides to the cops as the car moves around, but this whole strand of argument you are making about the ATTACHMENT of the device is silly, and won’t get you anywhere imo
as for the egging, that would be considered a vandalism because of the cost of cleaning up the egg from the car, and fwiw, eggs CAN damage paint, etc. if they are not removed relatively quickly.
it makes NO difference under the law whether you throw the egg or pour it on the car.
it’s completely disanalogous to the GPS .
i personally don’t think the cops should be able to do what they did in this case. that’s entirely tangential to whether it is a “search” to place a tracking device on the body of a car. imo, it isn’t. nor did the courts say it is.
the PLACING of the device is not the issue.
August 6, 2010, 10:40 pmAllan Walstad says:
All these fine points of law, precedent, interpretation — I’m lost. What I do see is the continuing development of manifold instruments of surveillance and control by the government. For what? Largely for the sake of the war on drugs. The same reason we have militarized police squads smashing down people’s doors in the pre-dawn hours to conduct searches. And a lot of other nasty stuff going on. Does anybody really think the goddam war on drugs is worth it?
August 6, 2010, 10:42 pmwhit says:
i don’t, and i would bet most of us here don’t agree with the war on drugs.
fwiw, ime the AVERAGE person is more likely to be negatively affected by the war on domestic violence, and by average person – i mean average innocent person whose privacy, free assocation etc. is damaged by the state.
iirc, fwiw the GPS tracking case in our state was on a homicide suspect not a drug suspect
August 6, 2010, 10:56 pmDavid Schwartz says:
So why is attaching the GPS tracker not a vandalism? It makes the car useless for concealing one’s whereabouts and one’s movements — a common and accepted usage of cars.
The reason the police attach the GPS tracker to the car is to make the car useless for the specific purpose the suspect is using the car. How is that not vandalism?
August 6, 2010, 11:26 pmRob Berra says:
Try this: what if I put them on police cruisers? Not necessarily for any nefarious purpose: I might just be curious, or I might even be a fan of cops and want to be able to find a cop if I want one. Or maybe I’m a sociology student, studying the behavior (say, driving habits) of public servants. Or perhaps it’s one of those qui custodiet things.
Not talking unmarked cars, either–I’m not going to blow any covert ops here.
In any case, how well do you think that would go over?
August 6, 2010, 11:32 pmSoronel Haetir says:
Whit,
In your magnet example I would think there would exist a tort remedy, likely no damages but I would think at least an injunction not to do it again available. When the police engage in behavior that could potentially land a private individual an official court reprimand of some sort they should not be able to use the result of such intentional acts as criminal evidence.
Now, if the injurious behavior were somehow more unintentional I might say the evidence should be admitted but planting monitoring devices is a fully intentional act.
August 6, 2010, 11:43 pmwhit says:
is this a real argument or are you just purposefully playing games?
try reading some case law on vandalism.
it doesn’t matter what the “specific purpose” the suspect is using his car for is.
surveilling the vehicle from above also renders that “specific purpose” impossible. so what?
that’s not even remotely relevant to the issue
August 6, 2010, 11:56 pmwhit says:
i don’t think it would go over well at all. it doesn’t follow that it’s a CRIME.
we have had guys who listen to scanners fwiw and routinely show up at calls. as long as they do not interfere with the investigations, etc. they are free to do so.
there was an anticop guy who had a website where, among other things, he was posting officer’s social security #’s, etc. no law was being violated. iirc, one of the dept’s sought a court order/injunction against him doing so, but until some sort of order was issued or a law was written, he was perfectly legal to post those SS#’s despite the fact that people were … very… unhappy with him doing so
some states may have laws against “tampering with police vehicles” that may be applicable …
just like a state could pass a law against attaching GPS devices to cars or otherwise doing stuff like that.
but WITHOUT a specific law, they can do it.
let me give you an example of how this works. there was a guy who was taking photographs up women’s skirts and dresses fwiw using various surreptitious means to do so.
our state had no law that specifically applied to that.
what happened? they
wait for it…
wait for it…
PASSED A LAW
that’s why we have laws , legislature, and citizen initiatives.
but absent a law, a behavior is legal.
August 7, 2010, 12:03 amwhit says:
i agree. like i said in one of my posts, there very well may be some sort of civil invasion of privacy thang ( i mentioned i was not versed what civil actions could be used, but assumed probably something applied) that could be applied.
and just for the record, in case people are miscontruing me
i do not think police should be able to attach GPS monitors to cars without a court order (with the usual exceptions for exigency etc. like with a kidnapping or something where it couldn’t wait).
and in our state, they can’t
it doesn’t therefore follow that i believe a violation of the 4th occurs when police do so, and even this case doesn’t claim that. it claims that doing that AND monitoring it for a long period of time, does
August 7, 2010, 12:05 amDavid Schwartz says:
I’m very serious. And I agree with your last ‘so what’. Sure, I can make your camera useless for taking pictures by turning off the light and surely I don’t thereby vandalize your camera. But if I make your camera useless for taking pictures by smashing it, I do.
The GPS attachment was only claimed not to be vandalism because it didn’t affect the operation of the vehicle for its intended purpose. We started out agreeing that similar operations that did prevent use for the intended purpose would be vandalism. Making one’s movements and locations difficult to track is one of the common reasons people use a vehicle. It is an accepted and legitimate use.
The police here are specifically trying to make the car useless for the very purpose the suspect is trying to use it.
August 7, 2010, 12:19 amTwentyTwo says:
Precisely. Here’s what the Court had to say about the mosiac approach in United States v. Arvizu, 534 U.S. 266, 274-275 (2002):
“We think that the approach taken by the Court of Appeals here departs sharply from the teachings of these cases. The court’s evaluation and rejection of seven of the listed factors in isolation from each other does not take into account the ‘totality of the circumstances,’ as our cases have understood that phrase. The court appeared to believe that each observation by Stoddard that was by itself readily susceptible to an innocent explanation was entitled to ‘no weight.’ See 232 F.3d at 1249-1251. Terry, however, precludes this sort of divide-and-conquer analysis. The officer in Terry observed the petitioner and his companions repeatedly walk back and forth, look into a store window, and confer with one another. Although each of the series of acts was ‘perhaps innocent in itself,’ we held that, taken together, they ‘warranted further investigation.’ 392 U.S. at 22. See also Sokolow, supra, at 9 (holding that factors which by themselves were ‘quite consistent with innocent travel’ collectively amounted to reasonable suspicion).
August 7, 2010, 1:05 amAnon Y. Mous says:
The problem is the precedent. If the cops are free to attach a beeper to any vehicle, then there is nothing to stop then from attaching GPS units on all our vehicles. Of course, having the cops be able to surreptitiously hijack our personal property to routinely track our every movement seems to many to be clearly a violation of our privacy rights. So, they come up with these cockamamie legal theories designed to comply with the precedent but still get them to the place they want to be. The precedent is the problem, and the only sensible course of action is for it to be overturned.
As to the discussion about the legality of private citizens affixing devices onto others vehicles without permission, all’s it takes is a prosecutor who is willing to make use of the available laws. For example, in Nevada this law is on the books:
All’s it takes is for law enforcement to decide they want to take the trouble, and the charges can be brought. I would also note that although there is an out in the second clause for the cops, there is not one in the first. Therefore, there is a law on the books criminalizing the cops’ behavior if they attach a gps device in Nevada without a warrant.
August 7, 2010, 1:07 amKevin C. says:
I recall reading an article about detecting bugs and trackers, and, if I remember correctly, the advice for if one found a GPS tracker on one’s vehicle was that one should contact the police and not to remove it onself, as tampering with, removing or otherwise interfering with a GPS tracker used for law-enforcement purposes is illegal, constituting criminal intereference with a police investigation.
August 7, 2010, 1:33 amTwentyTwo says:
A fair point. Orin referred to Dan Solove’s work in his original post, and I suspect that if Solove were participating in this comment discussion, he would point out that privacy need not be a binary concept, as the Court so often treats it. In other words, the Fourth Amendment hardly requires that we set up two mutually exclusive zones: those in which we have a “reasonable expectation of privacy” and those in which we do not. The better view, particularly in light of modern technology, seems to me to be a notion that we almost always have some reasonable expectation of privacy; how strong that expectation happens to be differs according to the circumstances. To illustrate, we know others will see us when we drive on public roadways, and we know that we might be photographed at intersections, toll booths, and so on. But we also can reasonably expect not to be secretly tracked by a remote satellite–at least not without the tracking entity having done so either by our consent or via a warrant.
The same binary vs. gradation problem is equally apparent in the context of the so-called “third party doctrine,” which essentially says that when one turns things over to a third party voluntarily, s/he loses all expectation of privacy in those things for Fourth Amendment purposes. So, under current precedent, when you leave your trash at the curb, dial numbers on a telephone, or deposit a check at the bank, you suddenly lose all constitutional [statutory is an entirely different matter] reasonable expectation of privacy in the contents. Put differently, your trash goes from fully private when it is in your kitchen wastebin to fully public when it reaches the street. Yet in an era of cloud computing, webmail, online banking, Peapod grocery delivery, and so on, we routinely entrust apects of our lives to third party management and, in the common sense rather than legal view, retain at least a partial expectation of privacy when we do so. Most of these activities did not involve third parties before the Internet era, and thus left people with Fourth Amendment privacy when they were conducted. Why should a change in the means by which we live our everyday lives (as opposed to a change in the actual content of what we do) diminish that protection? In other words, will the law come to us, or will we come to the law? Unfortunately, current precedent has us doing the latter.
August 7, 2010, 1:34 amJay says:
I get a little tired of this kind of “isn’t it obvious” argument. There are statutes concerning vandalism, varying by jurisdiction. Go read yours, and see if you think this qualifies. It either does, or it doesn’t. If it doesn’t, it’s not a crime, no matter how many exasperated quasi-rhetorical questions you compose.
Also, there are conceivably quite a few actions that would be illegal under some state law, but would not violate the Fourth Amendment. The fact that you can attach a label like “trespassing” to something doesn’t make it a Fourth Amendment violation.
August 7, 2010, 1:56 amTwentyTwo says:
Orin wrote:
I don’t dispute that this is the law as it currently stands. But if this case goes up to the Supreme Court, then why should the Court tolerate the continuation of such an outmoded rule? If what the Fourth Amendment is really all about is protecting individuals from unreasonable searches, then is it really all that clear that reasonableness (or, if you like, the fact of an act being a search in the first instance) is tied to whether or not the act was performed outdoors?
The inside/outside distinction really only makes sense when the chief means of perceiving a person’s action are limited to the physical senses: sight, sound, smell, etc. You can be seen by others, photographed, smelled, and heard when you go outdoors; but cannot easily be detected by those means when you remain indoors. This, I take it, was the basic intuition that led the law to develop the inside/outside distinction in the first, place–notably during an era in which seeing, hearing, and smelling were the chief means of documenting a suspect’s actions. Now that law enforcement tools include thermal imaging devices, GPS trackers, and other means of detection that do not rely on physical senses in any way, we have become completely unmoored from the prior rationale. We do not advertise our actions to the world when we turn on our GPS-enabled cell phone on, regardless of whether we are indoors our outside. Sure, we may be available to see and be heard when we go outside, but the act of going inside our outside has no effect on whether we can be tracked via GPS. That capability continues regardless of location.
Surely stare decisis is not sufficient to leave the inside/outside distinction intact when its reason for being has mostly been washed away by technological change.
August 7, 2010, 1:59 amStephen Lathrop says:
The killjoys here haven’t begun to understand how much fun GPS-on-cars can be. Let the press put GPS devices on politicians’ cars. And on all those cars that public servants drive for “official” business. Surreptitious GPS trackers on corporate jets? Superb.
I remember reading someone who said that given what the internet can do, you aren’t going to have any privacy…so get over it. He went on to say that the only protection available is to make sure no one else can have any privacy either. Dystopian, depressing, and not very plausible. Of course some people can keep their privacy—just not you.
I welcome any help the courts can provide.
August 7, 2010, 2:32 amDavid Schwartz says:
I’m simply responding to whit’s specific arguments that it’s not a trespass or vandalism for specific reasons.
If I said or implied that it is in fact a trespass or in fact vandalism, that was unintentional. (And I see at least one place where I did that. Sorry for the confusion.)
Similarly, if I said or implied that this has any bearing on the fourth amendment question, that too was unintentional.
However, it might bear on the admissibility of the evidence in Jurisdictions that make illegally obtained evidence inadmissible. (Texas does that, right?)
August 7, 2010, 3:09 amAnon PD says:
Off topic, but just wanted to say to whit, I’m glad you see the war on DV as a problem. I practice in WA and do a ton misdemeanor DVs; it’s out of control, especially the NCOs.
August 7, 2010, 6:00 amDavid M. Nieporent says:
Where do you see that? Is attaching a gps device “breaking, injuring, tampering with, or removing any part(s) of the vehicle”? No, it’s adding something to the vehicle which does not affect any part of the vehicle.
August 7, 2010, 7:05 amRexx says:
I, for one, do not.
August 7, 2010, 7:35 amXenocles says:
IANAL, but I took a military law class that spent a lot of time on searches (I suspect because they didn’t want us ruining prosecutions by effing up searches). The prof, who was a lawyer, told us that an act needed three elements to be considered a search for legal purposes:
1) Must be done by a government actor. This is obviously the case here.
2) The actor must be on a “quest for evidence.” Again, this is pretty obviously the case. There’s just no other reasonable explanation for planting the device or looking at the take from it.
3) The action must take place where the subject has a reasonable expectation of privacy. Here’s the possible sticking point. Obviously your location in a public place shouldn’t be considered protected. The exterior of the car is visible to all, and the identity of at least the driver is often pretty easy to discern. Nevertheless, I think the way one collects this data could violate privacy expectations. I certainly would feel violated in a small way if someone put a device in or on my car without my consent or knowledge (but YMMV).
From a policy standpoint, I like the idea of requiring a LEO to physically follow a subject to gather this information. It’s a dedication of a pretty large resource, so it discourages an attempt to gather location data wholesale. With this preference for the eyes of a human over the use of technology, perhaps we could call it the Bud Selig rule.
August 7, 2010, 8:20 amJoe says:
celebrated by the New York Times
Why cite only them by name? They did celebrate a ruling today, but it involved wolves.
Meanwhile, the Washington Post article on the case notes there is a circuit split. Is this ripe for SC review? Given Scalia’s past 4A rulings vs. Breyer’s respect for precedent even when it limits individual rights (see, the case escapes me, a ruling involving automobile stops), the results are far from clear.
Prof. Kerr surely is the expert here, but to the untrained eye (fwiw) a GPS system seems different from a beeper for reasons a few noted. Since ‘reasonable’ is partially a matter of degree (e.g., the length of time one is held at stops or at the airport), I think that’s relevant. The thermal imaging case also suggests new technology should be treated carefully. If precedent holds differently here, it is appropriate for the SC to re-examine the issue from a 21st Century perspective.
August 7, 2010, 10:16 amJoe says:
The WP article is fairly interesting. Some excerpts from the ruling:
“A single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story,” Ginsburg wrote.
He added, “A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”
http://www.washingtonpost.com/wp-dyn/content/article/2010/08/06/AR2010080604946.html
August 7, 2010, 10:17 amSoronel Haetir says:
I don’t mind the use of GPS tech at all, just get a warrant and everything is fine. That is where the real problem lies IMO, so many things that are obviously searches have been given a pass under one rationale or another.
And then you read court opinions where the judges admit that they think the cops are lying about something yet still allow the evidence …
August 7, 2010, 10:33 amcecil kirksey says:
The 4A interpertation depends on the meaning of the word “reasonable” and more importantly from whose perspective, the state’s or the citizen’s? One example of this which Prof Kerr has written about is the second party concept. I have no expectation of privacy of say my credit card billings or bank statements because I in some manner have conceded my privacy to a second party. If you asked the general public if their privacy is being violated in thid case I suspect that at least 80% would say yes. So the 4A really comes down to a point of perspective. The SCOTUS seems to look at these cases and ask: Is this action reasonable from the point of view of the state? And the answer has been yes in the most recent cases. The IR surveillance case being the exception. So I think this decision will be overturned.
August 7, 2010, 10:57 amArthur Kirkland says:
A person’s position concerning the War on Drugs, in my experience, is one of the most reliable indicators of whether that person is a jerk.
August 7, 2010, 11:39 amAnon Y. Mous says:
What definition are you using for “tampering”? Attaching a tracking device to my property without my permission is tampering with said property.
Here’s the statue with the relevant portions bolded:
The tough part is placing a damage value on the lost privacy to determine how serious a charge should be brought against the cop and his accomplices.
August 7, 2010, 12:08 pmLib says:
If one discovers such a device, isn’t it standard practice to remove it and install it on the car next to you in a parking lot? Of course, double credit if that car is owned by a judge, a prosecutor, or the police chief (after all, they certainly would have little room to complain as long as you’re in the same jurisdiction as the GPS unit was in when installed).
August 7, 2010, 2:21 pmRob Berra says:
Sounds like David Brin’s “Transparent Society.”
August 7, 2010, 2:26 pmLib says:
As others have pointed out, calling the GPS unit and data collected from it a “search” may be a bit of a stretch — instead it seems to be a violation of some innate human notion of “privacy” which, unfortunately, can probably only be found lurking in the penumbra of the Constitution patiently awaiting discovery by a sleuthy SCOTUS justice.
However, from a legal standpoint, how would putting a GPS unit on your car be different than a police officer attaching a small trailer to your car in which the officer sits and observes all your behaviors as you drive about? Would that be legal and why not? Would it be constitutional and why not?
Both cases require modifying and/or attaching stuff to your private property.
Both cases only reveal publicly visible information (if the GPS is magically turned off when the car is out of sight of public places, the officer would of course have to dismount from his chariot at that point and remount when the car returns to public view – a possibly painful process).
If there’s a concern about trespassing by the officer in the chariot when entering private land, then replace the officer with a very sophisticated camera, GPS, motion sensing, drug and explosive sniffing, temperature and moisture sensing, DNA filtering and sequencing robot. Turn off the robot under same “public view” conditions as the GPS is, or is not, turned off. (This would also avoid many pesky workman’s comp claims arising from those tricky mounts and dismounts by the officer as the vehicle enters and leaves public view at a high speed.)
August 7, 2010, 2:40 pmDavid Schwartz says:
It destroys the vehicle’s ability to obscure its owner’s movements. This is a legitimate, common, and socially accepted use for a vehicle.
A car that reports all of its movements to the government is not as useful as a car that does not. If the owner of the car had a knowing choice between these two options, he would consider one suitable for his purposes and the other not. (And this is true whether or not his conduct is lawful.)
Privacy is a vehicle function.
August 7, 2010, 3:12 pmsmead jolley says:
It depends whether def. Jones is black. If he is, then the policy is clearly racist under Thornton v. Beer Grievance Committee, and Jones is entitled to eliminate his tormentors.
August 7, 2010, 4:17 pmChris Travers says:
I think Karo is informative here:
In other words, Karo held that the tracking of the beeper into a closed area required a warrant and that the government’s contention that this effectively required seeking a warrant in all such surveillance cases was no barrier to such a ruling.
With a GPS, I think there is a fundamental question as to whether the court should presume that the device will transmit private-premises location data sufficient to require a warrant after the fact. GPS’s are much more intrusive in this way than beepers were. I’d be inclined to suggest that Karo creates a presumption towards requiring a warrant for this sort of thing.
The difference has to do with what sort of information is broadcast. A beeper just sends out an electromagnetic pulse. An antenna can determine the direction of the emission, and relative signal strength. It’s not very accurate at any rate, and it requires active attempts by agents to home in on the signal in order to determine where it is. Agents, upon determining it was possible that it was in a closed building, could stop following the signal, circle the block a few times doing a visual search, and then apply for a warrant.
In contrast GPS would likely broadcast specific information about where it is. In other words, without tracking it down, you still know where it is. So by the time you have any indication you might need a warrant under Karo, it’s too late.
So the question is do we categorically require one from the police through the 4th Amendment as a general rule (making things nice and predictable)? Or do we just start throwing out evidence left and right because Karo-type searches keep occurring? Either way the effect is the same: for practical purposes, a warrant is required.
August 7, 2010, 4:44 pmChris Travers says:
I think it would depend on where and how the GPS was attached. At any rate, as soon as I park the car in my parents’ garage and close the door and leave it there for an hour, a 4th Am search has occurred via the GPS under Karo…..
Moral of the story? Periodically park your car in someone’s garage and a warrant will be required……
August 7, 2010, 4:47 pmFub says:
Or periodically loan your car to friends for their vacation trips to West Gnawbone National Monument. Warrant may or may not be required, but consternation of the gubmint snoops would be priceless.
August 7, 2010, 5:29 pmEngineer-Poet says:
Threadwinner.
BTW, has anyone figured out why sentence breaks are removed when text is quoted? Seems to be a bug.
August 7, 2010, 11:21 pmDavid M. Nieporent says:
No, it isn’t. Vehicle movements are public.
Nor is that a “use” for a vehicle, in any case. The use of a vehicle is to get from one place to another.
August 7, 2010, 11:49 pmrxc says:
As a layman, I must say that I am thoroughly confused by the 4th amendment, at least as it is applied in so many different ways in so many different situations. I have essentially no assurance of privacy anywhere, including in my home, given the way that a policeman can argue that he either needs a warrant to search, or that he has to enter to deal with some sort of emergency in progress. And, as a boat owner, I have absolutely no expectation of privacy while I am on my boat, because the SC has ruled that boats are liable to search(“inspection”) at any time because of their link to Customs issues. Trucks are not similarly vulnerable, at least as far as I can see.
So, I will toss another hypothetical into the pot. All current GPSs that people actually use in their cars, boats, bicycles, or while walking have the ability to store tracks of their movements. If a GPS is seen by a policeman in a car, and he has the right to search the car, for some reason, does he also have the right to download the traks from the GPS and examine them? I think that they can do this on my boat, but I am not sure whether they could do this if I am in my car, or on my bicycle, or on a walk thru the woods.
August 8, 2010, 9:09 amrxc says:
Oh, and BTW, I bet that the GPSs that are being used by the police do NOT broadcast their position. They likely just keep track of where they have been, and the police then remove it and download the tracks. It doesn’t have to be located within the vehicle at all, just somewhere (in a wheel well, for example) where it can see the GPS satellites.
August 8, 2010, 9:13 amRich Rostrom says:
In a few years, GPS recorders will be standard equipment in all motor vehicles. They will be used to provide services like OnStar, and also for defense evidence in traffic violation cases and accident liability cases.
The cost and difficulty of operation of video surveillance cameras are decreasing rapidly, probably at a logarithmic pace. The number of cameras is growing at a similar pace. The vast majority are privately operated. Within a few years, such cameras will be trivial in cost, and become ubiquitous. We will have de facto the ‘panopticon’ feared by “Who lets the police…”
Instead of trying to put the genie back into the bottle, we should be thinking about how to live with it.
Concocting a “probabilistic right of partial privacy in public” is an absurd waste of time.
August 8, 2010, 3:30 pmChris Travers says:
It’d still be a search if it locates itself inside a closed space protected by a reasonable expectation of privacy. Police would still, for practical reasons, have to apply for a search warrant before looking at the data even if it wouldn’t be categorically required.
August 8, 2010, 8:32 pmDavid Schwartz says:
Something can be both public and obscure. Obscuring ones movements is a legitimate use for a vehicle. Raising the effort required to track one’s movements is a vehicle function.
That is just part of a vehicle’s use. It is also used, and legitimately so, to obscure your location and movements. (Ask any teenager.)
The police here are intentionally rendering the vehicle ineffective for one of the primary purposes the vehicle’s owner is using it.
August 9, 2010, 6:19 amOrenWithAnE says:
And instructions will be posted on the internet on which wires to snip if you’d rather not. And there’s always weirdos like me that prefer older cars anyway.
What a lame argument (even if I’m not particularly sympathetic to plaintiff here and believe the ruling will be reversed).
August 10, 2010, 12:02 amnhrpolitic13 says:
So what? Many people ‘do things all the time,’ but do so at their own peril. That PIs trail people around and take pictures of them does not necessarily imply that they are immune from criminal or civil liability if discovered.
Nobody is suggesting that 4th Amendment search is identical to stalking and therefore ‘permissible’ because the police have ‘lawful authority’; the analogy is that certain actions — independently permissible — may become disturbing and/or illegal when aggregated. Moreover, to extend your counter-analogy to its logical ends, if the search is, as suggested, unconstitutional, it cannot by definition have been conducted by lawful authority.
Prosecutors, like many individuals in positions of discretionary authority, frequently make decisions based on factors having nothing to do with whether they may have the actual legal ability to pursue something, such as whether they (a) consider important, (b) have time / resources to pursue, etc. While prosecutors (or other state agents) may (and usually do) choose to act ‘reasonably’ in such matters, we should not be dependent upon the whim (and proper intention) of the government for the protection of the liberties protected by the constitution – to paraphrase the Supreme Court. The truth of the matter is that while I agree that a reasonable prosecutor is unlikely to pursue such a flimsy stalking complaint, it is not clear that a prosecutor with too much time on his hands could not, and that would seem to be the appropriate test of the matter.
August 10, 2010, 1:42 pmGPS Tracking and a “Mosaic Theory” of Government Searches | Think Tank West says:
[...] as Orin Kerr argues at the Volokh Conspiracy, significant as the particular result in this case might be, it’s the approach to Fourth [...]
August 11, 2010, 11:39 pmGPS Tracking and a ‘Mosaic Theory’ of Government Searches | Think Tank West says:
[...] as Orin Kerr argues at the Volokh Conspiracy, significant as the particular result in this case might be, it’s the approach to Fourth [...]
August 12, 2010, 8:48 amGary Myers says:
Judge Kozinski’s opinion today dissenting from the denial of en banc rehearing in US v. Pineda-Moreno, No. 08-30385 (9th Cir. Aug. 12, 2010) () seemingly puts more meat on the Fourth Amendment issues surrounding GPS tracking by the police than the reasoning offered in Judge Ginsberg’s opinion in Maynard. Kozinski in fact gives a better explanation about the meaning of the the “dragnet” footnote allusion in Knotts. Assuming the DC Circuit panel stands, the question to Prof. Kerr, is: which is the better “vehicle” case for Supreme Court review, the DC Cir.’s panel opinion in Maynard or the panel opinion in Pineda Moreno?
August 12, 2010, 11:05 pmAlex says:
I find this reasoning problematic, when you consider the way in which GPS tracking works. A GPS tracking device sends the location of the item/vehicle being tracked many, many, many times per hour. Is that not a “search”, an “act?” So each time the location of the vehicle is recorded, that would amount to one “search”, no? I don’t see how this information could have been useful to police without considering it, in aggregate, one “search.”
I’ve read that the police did, at one point, have a warrant. I don’t think it would be adventurous to assume that the warrant authorized the tracking as one “search”, rather than thousands of individual “searches” to record the vehicle’s location at 12:01:00am, 12:01:30am and so on for 4 weeks. It seems to me, considering the that a) a warrant was obtained, but allowed to expire and b) the warrant (presumably) authorized the tracking as one “search” (an aggregate of thousands of individual searches), that even law enforcement and the judge who issued the warrant viewed this aggregation of information as requiring judicial approval. Am I missing something?
August 13, 2010, 5:20 pmDavid Schwartz says:
I suppose I should also cite Arizona v. Hicks, as I do every time the issue of whether something constitutes a search or not comes up:
Notice that the search is *not* looking at the concealed portions but merely exposing them to view. As I’ve argued elsewhere, courts should hold that removing legitimately erected barriers to information disclosure is a search, regardless of whether any information is obtained. The offensive part of opening my blinds and looking in my window is the opening of the blinds as much as the looking in the window.
Placing a GPS tracking device on a car is a search because it is a trespass that removes barriers to information disclosure in which the car owner has a legitimate privacy interest. This comports with common sense — if you walked in and found someone had opened your suitcase, you would not believe they were not searching it — “I wasn’t searching your suitcase, just opening it so that information would be revealed without having to search” is not persuasive.
August 13, 2010, 6:29 pmDavid M. Nieporent says:
You can argue whatever you want, but it isn’t the law.
You have this habit of reading some case in some incredibly awkward, non-standard English way and then deciding that your awkward translation of the case should be mechanically applied to some other situation unrelated to the original case without regard for common sense English. Of course the search is looking at the concealed portions; it’s not a discrete event from “exposing them to view.” If, hypothetically, the cop moved the stereo with his eyes closed, he might be committing a trespass of some sort but he wouldn’t be conducting a search.
It does no such thing. And the owner has no privacy interest, legitimate or otherwise, in where his car is, as long as his car is in a public place. This is public information. There are no “barriers” to the information, other than the boredom inherent in following someone around all the time.
True, but not remotely analogous to gaining information which is already open, like where a car is when it’s in public.
August 13, 2010, 8:53 pmDavid Schwartz says:
There are all kinds of barriers to the information. The boredom inherent in following someone is just one of them. People may also take active precautions against being followed such as using a circuitous route, looking behind them, and so on.. There are costs involved in following someone. All of these things are barriers that protect a legitimate privacy interest.
Opening someone’s blinds, if they have closed them, violates a reasonable privacy interest. This is true whether or not you look through the blinds. It is the outrageousness of the conduct and the reasonableness of the privacy expectation that makes this an unreasonable search.
The only counter-argument seems to be that the information is public solely because there’s some way it could have been obtained without violating the fourth amendment. But this is always true. A man with a gun being pursued by the police could break into my house and the police following him could find my meth lab in plain view during their exigent circumstances entry and there would be no fourth amendment violation. This can’t mean the police can trespass into my house without a warrant and look for meth lab just because it could theoretically have been exposed with no violation of my fourth amendment rights.
That the information could somehow become public without a fourth amendment violation simply cannot mean the police can search for the information by any mechanism. Otherwise, the fourth amendment would protect literally nothing.
August 13, 2010, 9:58 pmZZMike says:
Since the 9th Circuit decreed that a person has no expectation of privacy in his own driveway, does that imply that I (a private citizen) can go plant a GPS on the car of someone I’d really like to follow? (Alternately, a “private eye”?)
One argument is that if the police want evidence, they ought to get a warrant.
The argument that says that many cars have GPS transponders because people want them – e.g., LoJack – does not translate into surrepititiously planting them anywhere they want. In the first case, it’s voluntary.
“Orin”: “… instructions will be posted on the internet on which wires to snip if you’d rather not.”
(I’ll resist the temptation to mention the “red LED display ticking down”.) More likely are instructions on what to look for, and where to look.
And I thoroughly reject the “nothing to hide” argument. If indeed you have nothing to hide, well then, we’ll just send our Criminal Investigation Unit over to your place some Sunday morning while you’re in church (or out golfing), and have a little look-around, to see what we can find. We’ll even put everything back (if we don’t find anything).
August 25, 2010, 10:24 pm