Er… I took your disagreement to be with whether the cop formed the requisite mens rea for a crime, and was pointing out that the use of the sign was not intended to create criminal trespass but to announce your expectation of privacy.
If your disagreement is with whether a sign was necessary to create an expectation of privacy, then yes, the opinion is not the best way to convince you.
But… the 2010 opinion we’re discussing now relied on an opinion from 1991, which I was quoting. So your gripe is with 20-ish years worth of good case law…
Privacy rights are “penumbral” to the constitution. In other words, they are not explicitly stated but are a necessary corollary to the rights that ARE stated.
This logic has always been attacked by strict constructionists but regardless, it has the not insignificant virtue of being binding precedent.
At the very least, attaching anything to a vehicle would probably be considered trespass to chattels since it constitutes an interference with the rights of the vehicle’s owner. And as I recall, neither the police nor their agents can be allowed to benefit from an illegal act.
Also the argument about the police “merely” enhancing their senses is bullshit. In cases where the doctrine of “plain view” has been at issue, courts have repeatedly held that such “augmentation”, almost by definition, puts any observations so obtained outside the doctrine.
For example, if I have 10 kilos of coke sitting on my coffee table, but you can’t see it unless you either come on to my property illegally and peek in the window or set up a telescope across the street to peek in, then the coke is NOT ‘in plain view’.
No, that’s not true. The police can possess cocaine (a criminal act) and still arrest you if you buy it. And trespass to chattels is a tort, not a crime. Your redress in tort with actions for conversion, detinue, or trespass to chattel are certainly available, but they don’t trigger the Fourth Amendment’s suppression requirement.
I’d be interested to learn of any contary law.
Yes, although I’d say that distinction is in doubt post-Kyllo, because of Kyllo’s “generally available to the public” language. But no question: you’re right.
Right. But if I walk up to your door to ring the bell, and from my vantage point standing on your porch I can see your coffee table, you’re in trouble.
Seems to me that if the police had sufficient probable cause to go to the trouble of attaching a GPS device and then actively monitor/review the activity of the vehicle in question, that they then had enough probable cause to get a warrant.
The reasoning would be simple enough “we have evidence of x, but we don’t know where he is obtaining x, our efforts at normal observation having been thwarted, the use of a hidden GPS will allow us to y”.
So, my question is why didnt they get the warrant to begin with? Any action by the police that requires planting of any device ( to gather data ) on the property of an individual should require a warrant.
IMHO, it has nothing (or less, anyway) with the right to privacy and more to do with keeping the police in check.
I don’t see anything in this quote that says a “No Trespassing” sign alone would be sufficient to establish an expectation of privacy. As far as I can say they’re just saying such a sign would be one piece of evidence that could be used to establish a reasonable expectation of privacy. But perhaps I’m misreading.
Because a warrant isn’t required? Granted this is closer to a gray area then other methods the police use but the law seems to have affirmed they didn’t need one.
Would you ask why the police didn’t get a warrant to ask a neighbor questions?
I agree with you, but that isn’t the law as it is written now. Write to your representatives to encourage them to make such a law.
Sitting around expecting the courts to make law is simply the wrong way to go.
Do you have a specific example of a statute? Virginia doesn’t have a mischief statute, so I’m flying a bit blind, but don’t they usually involve damage or conversion?
I get that the court has said that it wasn’t required - my question is more why the cops didn’t get one to begin with - was it because it wasn’t required or because they were denied (not haveing sufficient probable cause to begin with).
The more the police are allowed to find ways around obtaining warrants the less they will be used.
no - as asking questions is an overt action - meaning they had to knock on a door, ask the person questions - and it was done in ‘reasonably’ plain sight - and the person being asked the question had the ability to say “no”. Similarly, the cops following the suspect vehicle around is “out in the open” (even if using unmarked vehicles).
Talking to the nieghbors, stakeing out a house/area - are overt actions even if reasonably concealed - they require real people doing the observation.
The GPS device was a covert action - like a wire tap or other high tech surveilance - especially when aimed at specific individual(s) and as such should require a greater degree of probable cause and oversite.
Why not argue that the placement of the GPS device devalues the car, even if temporarily? After all, I wouldn’t want to buy a car with a police GPS attached to it. If a suspect sells his car, would the cops just write off the GPS, or would they try to retreive it from the new owner?
For some reason, I don’t mind the idea of a couple of cops being parked down the street in an unmarked car, drinking sour coffee all night and day so as to be able to tail me when I go drive around in my car. That sort of thing takes up man-hours and places some burden on the police in order to pull it off 24/7. With the GPS, however, it seems like they could tag every car in a ‘bad’ neighborhood, wait a month or a year, and then pull up the data retroactively whenever they make an arrest for some other matter. They get the surveillance without putting in the effort.
I guess we are arguing about different things. You are arguing about what is; I am talking about what I think should be.
Coming onto private property to plant a GPS strikes me as a search, and a car as one of my “effects”. And they are not just watching it, they are taking steps to track my movements without my knowledge or consent.
Like I said, watching isn’t the problem.
Could they plant a listening device on the outside of my car, so they could listen in to conversations held in my car? Could they plant a listening device on the outside of my house so they could hear my half of phone conversations held inside my house?
I don’t see the principle that allows planting a GPS but disallows the ability to compel people to account for their movements otherwise.
No, because you have a reasonable expectation of privacy as to conversations inside your car.
No, because you have a reasonable expectation of privacy as to conversations inside your house, on the phone or otherwise.
The GPS doesn’t “compel” testimony within the meaning of the Fifth Amendment.
If you’re looking for a principle, rememebr that what the Founding Fathers found odious was the practice of forcing a witness to take the stand against himself, to actually give testimony against himself. But they wouldn’t mind using a diary kept by the witness as evidence against him.