Although I’ve now abandond that illustration in favor of the 'one day.'
Courts have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectation.
Needless to say, none of your hypotheticals are remotely close to the realm of realism.
Sorry, I’ve been away from this discussion, and it has gone in other directions. However, Bricker, if you’d be so kind, I’d love clarification on one point.
I wasn’t conflating the Fourth and Fifth Amendment. I wasn’t asserting that the cop should be stopped from getting my tax return or emails or whatever because that information is private – I was asking whether a policeman can show up at my door randomly and force me to make copies of all my PUBLIC records for him.
I understand that if someone thinks such records are material enough to some case that they issue a subpoena for them, that I may be compelled to provide them. But, again, can a police officer just randomly force me to make copies of my records for him?
To me, the crucial issue here is, as in the quotation you offered earlier today, in the subpoena. By serving someone with such a subpoena, a court (or officer of the court) is making clear to the person with the evidence that the evidence is material to a specific court case and that they have the authority to collect it (and force someone to perhaps incur costs in providing said evidence). That’s due process, is it not?
And such “de minimis” costs are incurred with the GPS tracker without due process, no?
I see you continue arguing, but what about the subpoena/warrant that I’ve asked about?
By the way, regarding the junk fax thing, I certainly agree that someone could pass a similar law regarding GPS, but does the reasoning behind this law come from nothing? Is there no principle in law which might cover the case where individual infractions may be insignificant, but if they were allowed to proliferate, the collective damage would be significant?
But to return to the issue at hand – let me put this plainly:
Can you provide another example of an issue where law enforcement – without a warrant or subpoena or any special circumstances – can compel you to produce evidence against yourself without your knowledge and your own expense (even a tiny one)?
This isn’t about the Fourth Amendment – it’s all about the Fifth. I haven’t argued otherwise. A person is being compelled to provide evidence against himself without his knowledge AND compelled to pay for the production of the evidence, thereby depriving him of some of his property without due process.
Is the due process issue a technicality – of course. But if this is allowed, where is the line drawn? Where else can the police force you to pay to collect evidence for them – even a tiny amount… without due process?
Of course. But they are simple restatements of your interpretations of the DC Case.
So what you really meant (or mean now anyway) is that the DC case offers no protection at all, unless you can find a clever enough attorney after getting snagged by such an investigation?
Bottom line, when and where would you say (Not legal advice of course) one is free to assume one’s car does not have a surreptitious gps attached to it by police?
No.
I suppose it is.
Again, I suppose this is true. It’s not remotely relevant, but it’s surely a true statement.
Sure seems incredible that neither party argued this compelling issue in either of the GPS cases, doesn’t it? Why do you suppose that is? Just slipped their minds?
So I could just leave it here. You’re right, and it’s a huge mystery that no one seems to realize it. If only they would tell the court, “My gasoline costs in carrying that GPS are a issue of constitutional significance!” then the judge would immediately suppress the evidence, and that would be that.
Or I could try one more time.
So let’s see… you need an example of a non-warrant, non-subpoena circumstance where you have to provide evidence against yourself, and by doing so you incur some tiny cost?
How about a truck weigh station? Most states have requirements that trucks can’t exceed a certain weight. Trucks that pass an open weigh station must pull in and get weighed. They have to wait in line, burning their fuel, if there are other trucks ahead of them. If they are overweight, they are cited, and they must also produce their logbooks showing they have gotten the requisite rest. If their logbook shows insufficient rest, they get cited.
Yes, but not one applicable to this situation.
“Without your knowledge.” Well, I guess that kills the truck weigh station.
No. I can’t think of one.
So I guess this is the only one.
No.
The Fifth Amendment doesn’t apply to non-testimonial evidence.
The “payment” is so tiny that the law won’t recognize it.
OK, right you are. Nice job. :rolleyes:
Here’s contact info for counsel for Jones and Maynard. Drop them a line and let them know the golden opportunity that they missed and that they should definitely use when their case gets cert at SCOTUS.
I may be twisting your words a bit here, but to me that sounds like: The police can invade your house, and riffle through your possessions for evidence of another persons wrong-doing, take it and leave.
Using legal means, the police could not have obtained such information, so why is it legal to use this information? Bob may have no right to privacy in my house, but don’t I have the right to privacy pertaining to documents in my home? Same scenario, but the list is encrypted on a computer, or using a book cipher, does the situation still play out in the same manner?
Can you cite a situation where evidence obtained unlawfully has been used to convict someone? If you can, I have one more reason to fear my government.
[quote=“Bricker, post:224, topic:551657”]
Given the poor presentation of actual arguments by Proponents in Perry v. Schwarzeneggar, nothing really surprises me. People make their strategic and tactical choices, and maybe Counsel isn’t as insightful as they might be. I am sure that there are widely varying skill levels among attorneys, even attorneys specialized in this type and level of case. It is true in every profession. So I don’t make any assumptions about why one argument was or wasn’t made.
Isn’t that a matter of enforcing licensing obligations and regulations though?
Close. You still have legal remedies against them – a lawsuit, for example, or even pressing criminal charges. So there are incentives against their actions. But what doesn’t happen here is that the evidence gained is inadmissible against anyone else. It’s just inadmissible against you.
Yes. But your right to privavcy is not violated by the police using the evidence against Bob.
Sure. Except that it’s hard to see how the police would know of the incriminating evidence since it was encrypted.
Of course I can. In Alderman v. US, 394 US 165 (1969), the Supreme Court considered a bunch of related cases, all of which sought exlcusion for evidence obtained illegally from another party which inculpated them:
So you are positing the curious situation in which the “right” answer continues to elude the courts and the lawyers involved in these cases. You know the right answer, but the system does not.
What would convince you otherwise?
Yes.
Of course, I can’t help noticing that every time I give you an example, you point to a previously-unannounced, yet suddenly critical, distinction.
I await the moment when we get to, “Yes, but THAT case happened on a weekend. This was during the week!”
[quote=“Bricker, post:228, topic:551657”]
No, that is not even a topic under discussion.
I am only suggesting that since there is certainly a variation in skills, training, and effort among lawyers, (they are not robots that are all the same after all), that needs to be taken into account when judging what they say. Same as with any professionals.
I don’t know. If you want to start a new thread proposing what ever it is you are falsely implying is on my mind, take credit for it yourself, and if it interests me, I will see if I agree or not. If I don’t, then ask me then what it would take to convince me otherwise. But for now, I reject the claim that you can read my mind.
Because, hey, I follow your post and expect to be able to see why it is relevant to the question asked. Because if I were to ask you for a case that was sufficiently parallel to a criminal investigation involving a gps paced on a vehicle regarding costs imposed on the person being investigated, and you gave me an answer that pointed to impositions of costs, but not in a criminal investigation, but rather something that is a condition of licensing, I’s note the difference and follow up and say “why is that difference not significant”.
And if it was not a distinction the answerer wanted to stand by, or really explain that it was in fact a good answer, I’d attack the person asking the question to deflect from the previous “partial-credit” answer.
This is Great Debates, and I suppose attacking the person who points out the only-partial responses you give is one strategy for debating. Maybe you are just having an off day or something, it doesn’t seem your style to do that.
Correct.
But you also acknowledge, I assume, that our law is built by statute and by judge’s decisions applying those statutes.
So you may, for example, contend that “income,” doesn’t mean money paid to you as wages. But since the universal weight of court decisions is to the contrary, it’s a meaningless claim. The law will operate to treat your wages as income, regardless.
It’s true also here, with this case.
You may feel you have a winning theory - that the combination of the gasoline cost, lack of notice, inculpatory nature of the information gleaned, and lack of judicial oversight somehow combine to create a barrier to this tactic.
But if no court is willing to get on board with this theory, what’s your basis for claiming it has any validity? The sine qua non of a valid legal theory is, in other words, a court’s agreement with that theory.
Of course, and all the players have varying skill levels, and so the entire system is ripe for monday-morning quarterbacking, just like any similar system. We want to learn how to do better in the future by studying the results of the past.
You keep trying to tie me to some ridiculous tax protesters. Stop it.
Ah, I see! You have not been reading carefully. It was not me that got stuck on the gasoline cost. Perhaps you will do better to just scroll way up and read again, rather than have me post the same thing all over again.
I dunno, I didn’t argue that theory.
Say I know the police have planted a tracking device on my car. I then drive onto private property out of view from the public, and detect the tracker is still transmitting my location. Can I file a lawsuit, and have it removed for violating my fourth amendment rights? If so, can the police replace the device immediately (or shortly) after the lawsuit has ended?
The basis for the lawsuit would be my movements on private property are being transmitted without a warrant. I also would like to say, even if the are police not recording, and the device remains active my movements can still be tracked.
The movements of any person in a public place do not have the expectation of privacy, and the police have planted a device to make spotting this car easier. I could detect the signal from such a device, and publish it to a website in real time. I would argue this is not eavesdropping on the private communication of law enforcement, because by nature of the legality of the device, all information transmitted ‘should’ be public already and therefore no law is being broken. Is there any flaw in this logic?
As for the subject of evidence illegally obtained being used in court, I concede you were correct. I do however think it is a poor ruling, and against the spirit of any fair and just society.
I will predict he will say that it is not evidence yet, that if a case arises, you can take action to suppress it (if the case is against you) and that expense incurred to do so (assuming you have it to spend) is not “damage”.
If the case turns out to be about someone else, there is no damage either because he can’t suppress the evidence anyway…
Regardless of whether or not it is evidence yet, the tracking of my movements on private property by police is not allowed. The argument for gps tracking has always been that your movements are public, and not private.
ETA: Or at least that is what I understand, according to this thread.
OK, perhaps I owe you an apology.
If you wouldn’t mind, could you restate your theory so I can separate it from whatever else has been argued here?
Just to jog your memory, I argued a more abstract, financial ratehr than physical nature of damage in the marketplace, to show that de minimus was not really the issue., and that such damage is real since an car could be sold at any time - the market is very liquid.
I further defined what the actual damages would be to show they exceed de minimus standards. That would be the cost of a service to verify that the car was NOT carrying a gps. I describe the game theoretical cost regime to show that this affects the cost whether buyer or seller assumes the risk.
Then I suggested that damages to the resale value of an item in this fashion might constitute a “taking” since the only purpose was to convert the car into a tool for the government’s investigatory purposes.
I gathered you feel this argument has been made and denied, or is so absurd it would never be made. But it seems to me people argue, and sometimes succeed, at novel “taking” arguments from time to time. I am no expert in the area, but they pop up in the news, so I know they happen. So, while I welcome your opinion - my currently open thread on coverture and prop 8 was made specifically with the thought that you might chime in - I can’t simply take an empty assertion that the approach is too novel to try without a persuasive reason why as to carry too much weight.
If it was my ass on the line, and there seemed to be nothing else available, I’d make sure my attorney could jstify very well why NOT to make this argument if that was his advice. To me, novel and frivolous are not the same thing.
I certainly think you can remove it.
Since the transmission of location on private property is a violation of your Fourth Amendment rights, I would say there’s a reasonable chance of some kind of suit under 42 USC § 1983, which lets you sue when your civil rights are violated by the government. BUt I’m really speculating here. I know criminal law; civil law is more of a stretch.
Yes, all that makes sense to me. What damages you might be able to show remains pretty fact-based.
Yes.
It’s interfering with the police investigation. By publicizing the existence of the tracker and its use in real time, you alert the subjects of the investigation that the investigation exists.
In Virginia, a blogger who published information about the identity and location of police officers was charged with a felony count of harrassing police and ultimately pled gulty to obstruction of justice after following undercover police officers to drug buy operations and driving past them as they tried to purchase drugs from sellers. She also posted pictures and the home address of officers assigned to the drug unit. All of this is public information, but her intent was (apparently) to interfere with the operation of the police. I say “apparently,” because apart from her guilty plea, she never conceded that this was her intent, but she did concede that there was enough evidence for a jury to conclude that this was her intent.
Do you know what year the Supreme Court ruled that illegally obtained evidence could not be used against a defendant in state court? That is, the state cops break into your house with no warrant, and find incriminating material which they use against you at your state criminal trial. What year do you imagine that practice was ruled unconstitutional?
Wikth a somewhat different set of facts, it is easy to conclude that the intent you described is not present.
There is a similar case pending in neighboring MD - a guy filmed himself during a traffic stop, then got beat up or something. I forget the details, but MD is claiming he violated wiretap laws simply by filming in public. arguably not because of the video portion, but the audio.
In the end, if you film in in public, you will be OK. But there are plenty of cop watch groups in places that film cops. I see no reason for the mere existence of private cameras in public to be a deterrence if they are doing their job well. after all, tehre are contless security cameras out there already. Someone could easily set up a cheap network of them, with no people present, in places where cops tend to be active, yet in public. In fact, so easily, cops take a risk assuming they are not being filmed IMHO.
But absent the wrong set of circumstances, I can see where it would be relatively easy to snag a cop’s misconduct without having that intent of interference under the law.
Sure. In the earlier hypo, there was real-time rebroadcast of the GPS info. If you remove that, and imagine simlpykeeping track of it for later (non-feraious) use, my guess is you’d be clear.
How about if I don’t publicize it, but I monitor these signals. I then start a security company which alerts my customers of any electronic signals being transmitted by their vehicles. In this instance my intent would be clear, to make money providing a service to my clients. I would not seek out subjects of police investigation. I assume if such a company existed, anyone worthy of warrant-less police tracking would seek its services on their own. The services purpose would be to detect any foreign signals of electronic origin being transmitted from private property, not specifically to interfere with police investigations. My service would then be marketed in such as way as to imply the ability to detect police trackers, but without establishing intent to expose ongoing police investigations.
I’m assuming this was sarcastic? My post you quoted was not, if my post was unclear its because I didn’t want to run on. You stated in your own post that evidence obtained illegally may be used in court, just not against the person(s) whose rights were violated in the process of obtaining it. I’m sorry if there was any unnecessary confusion.