Cops Putting GPS On Cars Without A Warrant?

[FoieGrasIsEvil]

OK, I think this is a topic we can debate. Can anyone defend the 9th Circuit Court’s decision to overturn the appeal in this case not once but twice?

Article here: Court allows agents to secretly put GPS trackers on cars - CNN.com

The appeal was based on a case of a guy that got convicted of growing marijuana and was sentenced to 51 months in prison, part of his conviction was based on evidence gathered by remotely monitoring the whereabouts of his vehicle. His appeal centered around the notion that *"…sneaking onto a person’s driveway and secretly tracking their car violates a person’s reasonable expectation of privacy.

“They went onto the property several times in the middle of the night without his knowledge and without his permission,” said his lawyer, Harrison Latto."*

Particularly galling to me is the notion put forth at the end of the article, where a former Justice Department attorney said *“You left place A, at this time, you went to place B, you took this street – that information can be gleaned in a variety of ways,” said David Rivkin, a former Justice Department attorney. “It can be old surveillance, by tailing you unbeknownst to you; it could be a GPS.”

He says that a person cannot automatically expect privacy just because something is on private property.

“You have to take measures – to build a fence, to put the car in the garage” or post a no-trespassing sign, he said. “If you don’t do that, you’re not going to get the privacy.”*

Really? So now we have to build a fence, put up signs or park a car in a garage to have a reasonable expectation of privacy from warantless GPS devices being put onto our cars?

This kind of shit really pisses me off. I just cannot see how any right-minded judge could advocate such a thing. In the same article you have another federal appeals court in Washington DC that reached the opposite conclusion, that a warrant should have been sought before attempting such a thing.

I agree with the dissenting judge’s opinion from the 9th Circuit Court: “Its Orwellian”.

[Bricker]

Are you upset about the trespass to place the GPS, or the use of the resulting data, or both?

Previous thread on the subject, with the DC case as the main event.

[FoieGrasIsEvil]

@Bricker

Are you upset about the trespass to place the GPS, or the use of the resulting data, or both?

Previous thread on the subject, with the DC case as the main event.

The trespass. If the police were investigating someone and they had enough on that person to go before a judge and get a warrant granted, then I’m fine with it being placed on the vehicle after that. But not before. I see this as yet another leak in the dike of our privacy.

[Bricker]

@FoieGrasIsEvil

I agree with the dissenting judge’s opinion from the 9th Circuit Court: “Its Orwellian”.

Unfortunately, Congress has yet to act on the proposed Amendment XVIII: “The United States will not implement any Orwellian law.”

[Bricker]

@FoieGrasIsEvil

@Bricker

Are you upset about the trespass to place the GPS, or the use of the resulting data, or both?

Previous thread on the subject, with the DC case as the main event.

The trespass. If the police were investigating someone and they had enough on that person to go before a judge and get a warrant granted, then I’m fine with it being placed on the vehicle after that. But not before. I see this as yet another leak in the dike of our privacy.

What part of the Constitution forbids that?

The Fourth Amendment protects against unreasonable searches. The courts have long held that there are areas in which you have a reasonable expectation of privacy, and areas in which you do not.

The outside of your car is an area that you don’t. People can look at it as you drive around.

The undercarriage of the car is part of the outside. If your car is parked on the street and a kid’s ball rolled under it, you wouldn’t assume he was violating your privacy to go get it. And you wouldn’t expect him to ring your doorbell and ask if he could reach under your car to get it.

Even if your car is in your driveway, as long as your driveway is open – not behind a fence, or protected by a No Trespassing sign – people can traverse it. People can walk up your property to ring your doorbell, for example. In this case, getting to the front door of the house required a visitor to walk up the driveway.

So the driveway isn’t private.

[FoieGrasIsEvil]

@Bricker

@FoieGrasIsEvil

I agree with the dissenting judge’s opinion from the 9th Circuit Court: “Its Orwellian”.

Unfortunately, Congress has yet to act on the proposed Amendment XVIII: “The United States will not implement any Orwellian law.”

I’m still reading through the other thread. This sure is an interesting subject, what with technology accelerating like it has and legal interpretation of its impact on the law struggling to keep up.

I just can’t get my head around the idea that its okay for police to sneak onto my property without a warrant and place something on my car that tracks my movements. By that logic I should be able to do the same to their cruisers while they are parked outside a convenience store. You know, just a law-abiding citizen keeping tabs on our boys in blue.

[Tom_Tildrum]

@FoieGrasIsEvil

Really? So now we have to build a fence, put up signs or park a car in a garage to have a reasonable expectation of privacy from warantless GPS devices being put onto our cars?

Take the GPS out of the case. If your car’s parked in the driveway and not behind a fence, it’s visible from the street. Police can use ordinary undercover agents to sit in an unmarked car across the street and see whether you get in it. They can tail you without identifying themselves. None of that violates your privacy.

Sneaking onto your driveway and attaching the GPS makes tracking you easier, but it doesn’t violate your privacy to any extent more than ordinary (allowable) surveillance would.

[tim314]

If the police could attach a monitoring device on your body without your knowledge, and that device could only transmit your position while you were outdoors, would that be equally permissible?

If not, then why not?

[Snowboarder_Bo]

@tim314

If the police could attach a monitoring device on your body without your knowledge, and that device could only transmit your position while you were outdoors, would that be equally permissible?

If not, then why not?

It could broadcast a person’s position at all times, really. A detective tailing a suspect would see him go into a home, and know that he was in the home. The tracking device wouldn’t be providing any information not able to be gleaned without a tech source.

[tim314]

@Snowboarder_Bo

It could broadcast a person’s position at all times, really. A detective tailing a suspect would see him go into a home, and know that he was in the home. The tracking device wouldn’t be providing any information not able to be gleaned without a tech source.

So in your opinion it would be permissible even if the device was placed on the physical body of the suspect?

I’m trying to put my finger on why I find this creepy, and I think it’s that the actual presence of the device feels to me very intrusive, even if the information it generates is no different than what could be produced in a less intrusive way such as conventional surveillance. So I’m wondering if there’s any limit on how far that can go.

[Bricker]

@FoieGrasIsEvil

I just can’t get my head around the idea that its okay for police to sneak onto my property without a warrant and place something on my car that tracks my movements. By that logic I should be able to do the same to their cruisers while they are parked outside a convenience store. You know, just a law-abiding citizen keeping tabs on our boys in blue.

And by that logic, I should be able to arrest a police officer, or issue him a citation if I see him violate a traffic ordinance.

But… no.

[Bricker]

@tim314

@Snowboarder_Bo

It could broadcast a person’s position at all times, really. A detective tailing a suspect would see him go into a home, and know that he was in the home. The tracking device wouldn’t be providing any information not able to be gleaned without a tech source.

So in your opinion it would be permissible even if the device was placed on the physical body of the suspect?

I’m trying to put my finger on why I find this creepy, and I think it’s that the actual presence of the device feels to me very intrusive, even if the information it generates is no different than what could be produced in a less intrusive way such as conventional surveillance. So I’m wondering if there’s any limit on how far that can go.

The DC circuit didn’t take that approach when they tossed out the GPS results. They involved a new “mosaic theory” of privacy, which basically said that even if each single trip is public information, the collection of all trips you take in a month is private.

I don’t think either case really argued the “intrusion” aspect in as much detail. Pineda-Moreno did argue that his driveway was private, and that his Jeep was private, but the court disposed of those arguments as I mention above.

It seems to me you’re thinking of this more as a trespass than a privacy violation.

[Bricker]

@tim314

If the police could attach a monitoring device on your body without your knowledge, and that device could only transmit your position while you were outdoors, would that be equally permissible?

If not, then why not?

Assuming the device posed no health risks… I don’t see the constitutional significance.

[Shodan]

@Bricker

What part of the Constitution forbids that?

The Fourth Amendment protects against unreasonable searches. The courts have long held that there are areas in which you have a reasonable expectation of privacy, and areas in which you do not.

The outside of your car is an area that you don’t. People can look at it as you drive around.

The undercarriage of the car is part of the outside. If your car is parked on the street and a kid’s ball rolled under it, you wouldn’t assume he was violating your privacy to go get it. And you wouldn’t expect him to ring your doorbell and ask if he could reach under your car to get it.

Even if your car is in your driveway, as long as your driveway is open – not behind a fence, or protected by a No Trespassing sign – people can traverse it. People can walk up your property to ring your doorbell, for example. In this case, getting to the front door of the house required a visitor to walk up the driveway.

So the driveway isn’t private.

I understand the logic here, although I don’t agree with it. ISTM that the police ought to be compelled to get a search warrant before they come onto your property to compel you to give evidence - like a subpoena.

Which leads to a question off the top of my head - this could be construed to violate your Fifth Amendment right not to give evidence against yourself, could it not? Presumably the perp in this case would have refused permission for the po-pos to plant the GPS on his ride.

I know you can be compelled to give handwriting exemplars and DNA and so forth, but isn’t that only after you are arrested?

Regards,
Shodan

[Simplicio]

@Tom_Tildrum

@FoieGrasIsEvil

Really? So now we have to build a fence, put up signs or park a car in a garage to have a reasonable expectation of privacy from warantless GPS devices being put onto our cars?

Take the GPS out of the case. If your car’s parked in the driveway and not behind a fence, it’s visible from the street. Police can use ordinary undercover agents to sit in an unmarked car across the street and see whether you get in it. They can tail you without identifying themselves. None of that violates your privacy.

Sneaking onto your driveway and attaching the GPS makes tracking you easier, but it doesn’t violate your privacy to any extent more than ordinary (allowable) surveillance would.

The difference, I think, is that by attaching something to my car they’re not only observing it, but modifying my private property. Certainly they aren’t allowed to, say, paint my car purple so that its easier to track through traffic. But it isn’t clear how attaching paint to my car (say for the sake of argument the paint is easy to remove after the investigation is over, and so does not lasting damage) is different then attaching a transmitter.

[Gray_Ghost]

@Bricker

@FoieGrasIsEvil

The trespass. If the police were investigating someone and they had enough on that person to go before a judge and get a warrant granted, then I’m fine with it being placed on the vehicle after that. But not before. I see this as yet another leak in the dike of our privacy.

What part of the Constitution forbids that?

The Fourth Amendment protects against unreasonable searches. The courts have long held that there are areas in which you have a reasonable expectation of privacy, and areas in which you do not.

The outside of your car is an area that you don’t. People can look at it as you drive around.

The undercarriage of the car is part of the outside. If your car is parked on the street and a kid’s ball rolled under it, you wouldn’t assume he was violating your privacy to go get it. And you wouldn’t expect him to ring your doorbell and ask if he could reach under your car to get it.

Even if your car is in your driveway, as long as your driveway is open – not behind a fence, or protected by a No Trespassing sign – people can traverse it. People can walk up your property to ring your doorbell, for example. In this case, getting to the front door of the house required a visitor to walk up the driveway.

So the driveway isn’t private.

Actually, Bricker, the driveway in this case was conceded by the Government to be part of the curtilage, and therefore was private. If you haven’t already, go and read Kozinski’s dissent [Warning: PDF] from the Court’s denial to rehear en banc. He cites Kyllo, Ciraolo, and Knotts to explain his reasoning why this instance was so egregious. (Besides, Kozinski’s prose is usually some of the funniest and clearest you’ll ever find in a judicial opinion.)

It’s been awhile since Criminal Procedure class, but I thought curtilage carried the same protections against search and seizure as the interior of a home. From this decision, I don’t see anything stopping the police from entering Pineda-Moreno’s house through an open window and sewing GPS locators in his lapels or cuffs. (Frankly, I can’t see why the police couldn’t just go get a warrant. Would it really have been that hard for them to get P.C. for a suspected pot trafficker?)

Kozinski’s points on the second ground—that GPS tracking is qualitatively different than a mere beeper and should require a warrant anyway—are a policy argument, and as such, I feel are on shakier ground. I agree with him, FWIW, but don’t find the Government’s use of such data as bothersome as the Court’s handwaving away the Government’s violation of the curtilage to place the device.

Surprising that the 9th rolled over like this.

[Ravenman]

So, if this ruling by the 9th Circuit is to be accepted, what is the standard by which police may attach tracking devices to cars?

Does it require probable cause, reasonable suspicion, or “we just wanted to see what would happen?”

Let’s suppose there is a stoplight in an area with lots of drug activity. Could police permissibly set up an operation so that, while cars are waiting at the stoplight, a cop could covertly attach tracking devices to the multitudes of idling cars that pass through the neighborhood on any given day? (So that the devices could later be retrieved and establish whether some cars exhibit suspicious patterns of behavior.)

I am troubled by this ruling. It is one thing to be seen in public, it is another thing to have one’s location covertly and automatically monitored on a 24-hour-a-day basis without any judicial intervention of whether the monitoring is necessary.

[Jimmy_Chitwood]

@Shodan

Which leads to a question off the top of my head - this could be construed to violate your Fifth Amendment right not to give evidence against yourself, could it not? Presumably the perp in this case would have refused permission for the po-pos to plant the GPS on his ride.

I know you can be compelled to give handwriting exemplars and DNA and so forth, but isn’t that only after you are arrested?

The 5th Amendment right against self-incrimination has been interpreted to apply only to “testimonial” evidence, i.e. a person’s intentional communication of information verbally or equivalently. You aren’t incriminating yourself in the sense of the 5th Amendment when you do something that leaves evidence but isn’t testimonial in nature, like for instance traveling from point A to point B or leaving a fingerprint.

The GPS unit in this case would be analogized to a simple observation of a suspect with a police officer’s own senses, which obviously wouldn’t be something he can plead the 5th against and would be something he’d refuse the police permission to do if he had the opportunity.

[Bricker]

@Gray_Ghost

Actually, Bricker, the driveway in this case was conceded by the Government to be part of the curtilage…

Yes.

…and therefore was private.

No.

@United States v. Magana

A driveway is only a semiprivate area. The expectation of privacy which a possessor of land may reasonably have while carrying on activities on his driveway will generally depend upon the nature of the activities and the degree of visibility from the street. It would be equally unwise to hold, as a matter of law, that all driveways are protected by the Fourth Amendment from all penetrations by police officers as to hold that no driveway is ever protected from police incursions. The test in each case should be that of reasonableness, both of the possessor’s expectations of privacy and of the officers’ reasons for being on the driveway.

And:

@US v. Pineda-Moreno

To the contrary, the driveway had no gate, no “No Trespassing” signs, and no features to prevent someone standing in the street from seeing the entire driveway. Additionally, one of the investigating agents testified that “an individual going up to the house to deliver the newspaper or to visit someone would have to go through the driveway to get to the house.”

@Gray Ghost

If you haven’t already, go and read Kozinski’s dissent [Warning: PDF] from the Court’s denial to rehear en banc. He cites Kyllo, Ciraolo, and Knotts to explain his reasoning why this instance was so egregious. (Besides, Kozinski’s prose is usually some of the funniest and clearest you’ll ever find in a judicial opinion.)

Interestingly, Kozinski does even mention, much less distinguish, Magana. Good move, because it totally destroys his claim. Nor can he claim it’s part of some recent trend to eviscerate the Fourth Amendment, considering it was decided when he was still in law school.

It’s been awhile since Criminal Procedure class, but I thought curtilage carried the same protections against search and seizure as the interior of a home.

Not quite. Driveways require a fact-dependent assessment of the reasonableness of the expectation of privacy.

[Bricker]

@Ravenman

So, if this ruling by the 9th Circuit is to be accepted, what is the standard by which police may attach tracking devices to cars?

Does it require probable cause, reasonable suspicion, or “we just wanted to see what would happen?”

Let’s suppose there is a stoplight in an area with lots of drug activity. Could police permissibly set up an operation so that, while cars are waiting at the stoplight, a cop could covertly attach tracking devices to the multitudes of idling cars that pass through the neighborhood on any given day? (So that the devices could later be retrieved and establish whether some cars exhibit suspicious patterns of behavior.)

I am troubled by this ruling. It is one thing to be seen in public, it is another thing to have one’s location covertly and automatically monitored on a 24-hour-a-day basis without any judicial intervention of whether the monitoring is necessary.

As the court said:

In Weaver, for example, the New York Court of Appeals expressed fear that to permit the police to use tracking devices “would be to countenance an enormous unsupervised intrusion by the police agencies of government upon personal privacy.” (citations omitted) “But the fact is that the `reality hardly suggests abuse.’” (citations omitted) We, like the Seventh Circuit, believe that “[s]hould [the] government someday decide to institute programs of mass surveillance of vehicular movements, it will be time enough to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search.”