I see your addendum. When did they say that cops, and only cops, can do this? Not Private Investigators, not nosy neighbors peeking out of their windows with binoculars. Just cops.
I am trying to get down to the basics of what, precisely, is the special priviledge here. To me that would require showing which law is being violated by planting a tracker on a car (tresspassing, invasion of privacy, vandalism, littering?), and then finding the thing that says that this law applies specifically to cops.
I mean, are we sure this is even illegal? I’ve got gobs of RFID tags that stores put on my DVDs before selling them to me. Admittedly these were put on prior to me receiving the item, but does that matter?
Is there a specific law against the police painting your car purple?
Slashing your tires?
Running over your car with a steamroller?
Committing insurance fraud?
Running around naked?
I’m not really saying you’re wrong. It just seems a bit improbable to me on the face of it.
(And I’m still curious whether and why, specifically, civilians can’t tag and track you.)
So, this decision says that police can augment their natural senses with technology. The other decision you quoted said that police can only do so as long as they don’t track too many people.
If there is no problem to augment one’s sense with technology to track one subject, then why would it be a problem to track 1,000 subjects with technology?
Could it be that the problem with tracking 1,000 subjects is that we don’t have enough police to actually track that many people?
And in the case of the beeper, the technology is assisting in the police tracking a subject. In the case of the GPS, the technology is a replacement for tracking a subject. Instead of augmenting one’s natural senses to follow someone, the GPS completely obviates the need for human effort, other than to emplace and retrieve the device.
I just think the beeper situation is somewhat different. Not only because of the technology, but because of the way in which the device was implanted. Putting a device in a bag full of contraband is different to me than covertly planting a device on someone’s car.
Well, the Fifth Amendment, which protects the giving of compelled testimony, makes no distinction between pre- and post-arrest. But the point is that you can NEVER be compelled to testify against yourself; you can be compelled to give a blood sample. It’s true you can’t be compelled to do that without an arrest, but that’s because to take your blood, they must seize you, and that triggers FOURTH Amendment protections.
Then when I become Chief Justice, I will find that going onto private property to plant a bug is a search, and this triggers Fourth Amendment protections.
I will further find that the only thing that justifies compelling someone to produce evidence against oneself is probable cause.
But if the GPS is evidence, not testimony, then the other forms of non-testimonial evidence that I can be compelled to produce should be things that the police can do without arresting me. So if I am just walking down the street, they can just stop me and demand that I give a DNA sample.
That doesn’t sound right. How come the Fourth stops them from compelling me from being randomly forced to give non-testimonial evidence, but doesn’t stop them from compelling me to give them non-testimonial evidence via a GPS?
When police are properly acting as agents of the state, there is typically an exception written or read into the law to allow them to perform the act. Since almost every crime has a scienter, a mental state, that is necessary in addition to a bad act, police acting to enforce the law are not guilty of violating the law if they had no criminal intent.
Yes. In Virginia, that would be prohibited by Va Code § 18.2-137:
But I see where you’re going. Why, you are asking, can police break those laws? They apply to “any person,” after all.
And of course the police cannot simply decide to slash your tires for fun. But if some bizarre circumstance arose in which painting your car was necessary to enforce the law in some way, then police could do it and not commit a crime.
This is not to say that the state can act with complete impunity. The state cannot infringe upon your civil rights. If they did paint your car, then they’ve taken away its value, and the Fifth Amendment requires that they compensate you.
So the police can do things in furtherance of their jobs that a private citizen could not do without breaking the law. I confess I can’t imagine an instance where furtherance of a lawful investigation would require painting your car purple. But when police act as agents of the state, what constrains them is narrower than the general criminal law.
So there are two options: police doing some act as an authorized part of their job, and police acting outside their job’s rules. If they’re acting on their own, they they HAVE criminal intent and may be prosecuted.
Maybe they can. I can’t really think what law that might violate.
But I know that we can’t conclude that “If police can, private citizens can,” because the rules for the two are different.
No, they can’t. For one thing, that involves a seizure, for which they need at least reasonable suspicion. And the greater the intrusion, the greater the suspicion needed.
Because the Fourth Amendment protects some things and not others. It protects your “persons, houses, papers, and effects,” from unreasonable search and seizure. It doesn’t protect your car from having people watch it and find out where you take it, because no seizure occurs.
Neither does the Fifth Amendment, because that’s not testimony.
Good folks who can afford a garage that has a closing door, or to live in a gated, secure community are entitled to more privacy than the people who are of lesser means.
Yeah, but if a cop does it, it isn’t trespassing. Because a cop would have to have the intent to commit the crime of trespassing while covertly attaching a tracking device to one’s car, but if he doesn’t feel like he’s trespassing, he wouldn’t need to obey the sign, now, would he?
ETA: What if everyone put up a sign in their yard: “NO COVERT TRACKING OF THIS FAMILY’S MOVEMENTS.” Would the police have to obey?
Just out of curiosity, why do I need a sign that says “No Trespassing”? I don’t need to wear a sign around my neck that says “No Police Brutality”. How come, unless specifically stated by sign, trespassing is OK?
Yeah, I’m sure if I was being mistaken for some criminal and the cops wanted to place one of these devices on my car while it is parked in my driveway, that they will turn tail at the sight of a “no trespassing” sign. Or just plead ignorance to its existence.
I wonder this also. People can be charged with trespassing onto private property without such signs being present, can’t they?
I agree with the above posters - you just made a good and coherent argument above that tresspassing laws just don’t matter, unless they also constitute unlawful search and seizure, or otherwise trip one of those constitutional restraints. And if they do, you don’t need the sign.
Presuming that we’re debating whether the recent case law on this is a good idea, it can’t be used as its own precedent. So, by what logic could the sign make a difference?
And if I were a cop and wanted to track you (and didn’t have a GPS unit handy), it’d be a lot easier if your car was purple. So clearly I can start slinging the paint buckets around. (Of course, this has a respectable chance of backfiring, but being dumb doesn’t make a police action more illegal, AFAIK.)