Search-and-Seizure Sentence of the Day:
From Judge Gregory of the Fourth Circuit, after rejecting a defendant's claim that he had proved a reasonable expectation of privacy in an open field at least in part by being comfortable enough to urinate there:
[I]f Fourth Amendment protection were to be predicated upon where one felt comfortable enough to eliminate, our search and seizure jurisprudence would be turned on its head.United States v. Vankesteren, n.1.
He's guilty of hyperbole!!
Before you hurt too many people: "if a then b" does not imply "if not a then not b".
As to the central issue, this judge does not seem to embody the "objective person" standard. Most people would consider a remote location where no other people are present "private".
I wonder if the "KopBuster" people, by trying to bait police into searching their property, lack a subjective expectation while having an objective one?
Funny stuff, Prof. Kerr.
I'm reminded of a new take on an old joke:
Question: How many VC commenters does it take to screw in a light bulb?
Answer: That's not funny.
actually being eliminated, just moved from one location to another.
It's being pushed over the threshhold, "e-limin-ated." "E-vacu-ated," pushed out of a hole, also makes sense, but both have clear latin support.
Call Prof. Fairman. I see another SSRN game in the works. I'm sure there's some journal somewhere that will publish an article titled "Poop." Or "Shit" if one wants to be regarded as just a bit more edgy.
Not quite the right punch line for that joke.
Q: How many Volokh commenters does it take to screw in a light bulb?
A: Well, if we look to the 6th Circuit's search &seizure jurisprudence, they've never answered the question squarely, but...
Question: How many VC commenters does it take to screw in a light bulb?
Answer: legalize marijuana.
A: That would depend on whether Holder's intervention in JD careerists' decisions concerning pardons ventured beyond the safe constitutional harbor provided for executive action, assuming the principle of the unitary executive remains apart from the current strains of jurisprudence, thus precluding it from consideration as normative.
We remain agnostic on both Holder and light bulb maintenance.
Do judicial proceedings wander like internet discussions?
What next in the annals of crime? Illegal dove trapping indeed.
Good grief.
For some, the joke just whizzed right on by.
Thus the rule ought to be human perception unaided by technology. If you have to use a gizmo, you have to get a search warrant.
The "gizmo" standard seems to be a good start, but...
Are binoculars a gizmo?
Infrared scanning is just the transformation of invisible light into visible light. So maybe the rule should be anything that transforms invisible light is a "gizmo."
How about night vision equipment? Much like binoculars, it magnifies visible light, so I don't know if it's a "gizmo" or not.
except for gizmos that merely allow me not to have to move physically to another spot that I can also lawfully be at without a search warrant.
Public park - I am surveying a public park with binoculars. I can move to the spot the binoculars effectively put me in without a search warrant so yes, I can use binoculars in that instance.
Audio amplifiers - same deal.
Infra red - there is no equivalent to human unaided senses, so no, unless the public park idea applies. That is, I am guarding a public park at night.
Wire tap. no. Xray. no. Infra red to see through a wall when I would need a warrant to enter the building. No. Get a warrant.
Intercepting email. Absolutely no.
Interesting. I assume you're aware that this is a departure from current law. I'm guessing that you're being proscriptive rather than descriptive.
The problem with the "gizmo" standard is that it's incongruent with the reasonable expectation of privacy standard, and thus could impose requirements on the police that private citizens do not face. Sure, today we expect privacy where we could only be seen with infrared equipment. But there could come a day when everyone's cell phone comes standard with an infrared camera. It would be hard to expect privacy when everyone could take pictures of the IR radiation leaving our homes, and yet the police would be required to get a warrant.
It's eminently reasonable for me to assume that, even if my neighbor had an IR camera, he would refrain from pointing at my house to spy on me. That is to say, there is a strong social, not technological, constraint that prevents normal people from spying on what others do in the privacy of their own homes.
Cell phone cameras are quite common and can easily be concealed in a pocket with just the lens showing (mine can even operate in video mode to obviate the need for any human intervention either). Nevertheless, despite the extreme technical ease of doing so, it's still quite unreasonable to photograph someone in a locker room because social custom identifies the locker room as a private place.
Link2
Link
...today.
But when everone has a camera, and where IR photography of homes is a wildly popular hobby engaged in by millions, then it's no longer so reasonable.
The websites are fine.
Photographing unwitting women or Scots is not fine as long as there are statutes against that sort of thing, and currently there are.
Ditto the other guy, Sean. Thanks for the laugh that I certainly needed.
This was a no-brainer.
Do IR cameras work passively or actively?
A device that only detects radiation coming out of the house can be used for surveillance without abridging Fourth Amendment guarantees.
Something like radar or sonar (which rely on signals emitted from the device) may violate the Fourth Amendment guarantees.
John, the charge was trapping hawks. The doves (quite likely domestic rather than wild)were presumably bait for the hawk trap, and thus their presence was evidence.
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