I think the problem everyone may be having is that, while they accept that any expectation of privacy must be reasonable, they take exception to the notion that a person needs to take steps that affirmatively evince such an expectation. I think even Bricker would agree that, even though exceptions abound (such as for mail carriers, meter readers, children chasing runaway balls, drivers pulling in to turn around, etc.), as a general matter, nobody wants people on their driveways crawling underneath their vehicles (least of all the police). It’s common sense. But unfortunately that’s not enough, for they also have to exhibit an expectation of privacy through their conduct.
The simple solution is the “No Trespassing” sign, as mentioned by the court. My issue with that is that it’s such a lawyer’s solution. A lawyer looks at a case like this, involving a trespass onto a “semiprivate area” (what exactly the 9th Circuit means by that I don’t know) such as a residential driveway and police accessing the underside of a car that would have no expectation of privacy if it were parked on the street, and they conclude “Ah, just put up a gate or a ‘no trespassing’ sign, problem solved.” But I don’t think the average person thinks that way. I think the average person thinks that the public at large generally shouldn’t be running around his driveway or crawling underneath his car, “no trespassing” sign or not. After all, what if Juan Pineda-Moreno had put up signs, but they weren’t visible in the dark when the police came to place the tracker? Is his expectation defeated? If the signs are visible but in Spanish, and none of the officers speak Spanish, is it null? If I live in a housing development with a particularly anal homeowner’s association, are they going to be okay with me putting numerous well-lit “no trespassing” warnings all over my property?
On the other hand, requiring someone to establish an expectation of privacy through conduct does give courts a clear indication of whether it exists in a particular instance. Otherwise, we have to develop some kind of messy “would I have given you permission to trespass if I were standing here watching you?” standard that would be difficult to apply.
The brutality thing wasn’t trying to conflate the 2, just the first thing off the top of my head that cops could do to me that I didn’t want them to do. Interesting ruling. I find it a little strange that there is no default expectation to privacy in not having strangers wander around my property unless I specifically tell them not to, but I don’t make the rules.
A car that records my exact position in a manner that a stranger can access is less valuable to me than one that doesn’t. Affecting a piece of property in a way that makes it less valuable satisfies every definition of damage I know of.
On the no trespassing signs, instead of putting up signs can I just send letters to the local state and federal authorities informing them they are not welcome anywhere on my property without my express permission?
I’m not addressing the constitutionality; I’m addressing the fact that a practice is far less likely to be abused if it is difficult or costly.
Could a private citizen tag the car of, say, the mayor of their town with a GPS and then publish the details of the mayor’s comings and goings? Could they do the same with their non-famous neighbor? Could they do the same with their ex-wife’s new boyfriend? Is there any point at which such behavior becomes illegal?
But it’s not permanant. It can be removed without any cost.
If I leave a flyer on your windshield, it fits the definition you offer above: A car that has a flyer on the windshield is less valuable to you than one that doesn’t – right?
But that’s not “damage,” under the law. And I’m willing to bet you can’t find a single example of that criminal mischief statute used to prosecute anyone doing anything as emphemeral placing something that causes no permanant damage on a car, or indeed anything. So I’m going to say no: that affixing a magnetic GPS to a car is not “criminal mischief” within the meaning of that law. I welcome correction on the point.
I’m not sure how many times in this thread alone Bricker needs to point out that the police in their official duty being allowed to do something does not mean you can. Unless of course you are running around putting GPS tracking on police cars as part of your official duty as a police officer yourself.
Police in the line of duty are allowed to do things private citizens can not do legally. I’m not sure why this concept doesn’t penetrate some peoples skulls.
No. Also you cannot wear a badge, put flashing blue lights on your car, initiate traffic stops when you see citizens commit a traffic violation, or serve an arrest warrant on a fugitive.
JUDGE: Blaron, you are charged with impersonating a police officer. How do you plead?
BLARON: Not guilty, judge. If the cops can wear badges and stop people for speeding, so can I. After all, what’s good for the goose is good for the gander.
PROSECUTOR: (to his assistant, sotto voce) Uh oh. He’s discovered the dreaded gander defense. We have to make this go away, and fast! (To the court) Uh, Your Honor, we’ll be dropping all charges.
How far does that go, anyway? Let’s say an undercover cop is working on infiltrating the mafia. Part of his “initiation ceremony” is to kill someone. What’s to stop a cop from doing so, and then saying in his defense “When I put a bullet through that guy’s head, I wasn’t doing so with the intent to commit murder. Rather, I was doing it as part of a larger plan to gather evidence against criminals”?
Assuming you mean, “the penalty for surreptiously placing GPS devices on police cars,” I imagine it would depend on what the rest of the investigation revealed. The obvious inference would be that you were trying to obstruct justice by informing yourself of the currrent location of police cars in order to be warned if any approach you, and so whatever penalty might attach to obstruction of justice would probably be viable.
All over the place. Here are some examples.
In federal caselaw: United States v. Russell, 411 US 423 (1973):
And state caselaw:
And statutory state law: California Health and Safety Code Section 11367.5 provides that otherwise illegal drugs may be legally possessed by a police dog trainer. Similar exceptions exist for explosives and cadavars. Federal law provides blanket immunity for all law enforcement for drug possession during the enforcement of drug laws.
As to the cite for scienter and the mens rea of different laws, that’s more work than I’ll do just to satisfy a reflexive “Cite?” request that takes you twos seconds to type and me 30 minutes to respond to adequately. If you’re serious about wanting to know, I’ll answer; if you’re asking for some other reason, I’ll just say it’s quite well known.
Seriously?
A quick answer would be that his department’s guidelines would not include murdering someone in order to gather evidence.
Again, if you want a more detailed answer, I’ll give it. If you’re just asking because you know it takes much less time to ask than to answer, then I’ll just advise you to do your own research.
I don’t see the word “permanent” anywhere in the statue.
Depends on how valuable the flyer is, no? Legally speaking, advertising is seen as a desirable or at least acceptable activity, and thus not damage. But really, you are seriously arguing that the following situations aren’t crimes:
Saran wrapping your car
Writing “Bricker is a jerkoff” in chalk on your driveway
TPing a tree in your yard
Affixing a bunch of dildos by suction cup to your car windows
What legal definition of “damage” are you using?
And no, I can’t find any convictions. I found one arrest for writing in chalk, but the charges were eventually dropped, and I can find a plethora of police “investigating” incidents like saran wrap. Believe it or not, misdemeanor criminal mischief which results in no permanent damage is not high on the priority list of law enforcement. Nevertheless, it does remain illegal.
True. But the word “damage,” implies a physical alteration as opposed to a mere attachment of one thing to another. Chalk writing on a sidewalk cannot simply be lifted up and away; it can be removed, but at some effort. And even then, I’d be surprised to find a conviction under any statute that requires damage for chalk writing.
Each of those has considerable difficulty of removal.
That’s a little closer to the GPS situation.
I’d say that’s probably not prosecutable under any statute that required damage.
And considering the sophomoric sense of humor that we can find in the world, as well as the offended outrage at that sense of humor… I’m thinking that somewhere in the country you could find at least one example of a criminal conviction to support your theory.
I don’t think “damage,” is a term of art. And I don’t think you’ll find any examples, anywhere, of your interpretation actually resulting in a conviction.
So no: placing a magnetic GPS is not “damage” within the meaning of the vandalism or criminal mischief statutes. You can keep insisting that it is, but no court appears to have made any finding that’s even close. I’m open to learning otherwise, but I can’t find a single example.
Honest question here - if you found one of these trackers on your car and removed it, would you be subject to prosecution? If you destroyed it in the process? If you destroyed it just for the hell of it? If you left it in place but disabled it?
A thing may be easily removable physically without being easily removable legally.
I’m assuming the cops in the case didn’t use a suction cup to attach the GPS to the window. They probably ziptied or affixed it in some semi-permanent manner somewhere hidden. If they did so in a manner that has a “considerable difficulty of removal”, would it then be a crime?
Would you say that it is illegal under any statute, or am I free to suction cup dildos to my hearts content?
I’m not really surprised I can’t find anything. The crime is a misdemeanor and would most often involve juveniles. With no permanent damage, the cops aren’t likely to try very hard (or really at all) to catch the perps. And a couple of kids getting busted for saran wrapping a car isn’t exactly noteworthy. All of this conspires to make it unlikely to find anything that meets the strict requirements of what we are looking for.
First: this is not a thread about legal advice. I am not your lawyer, and I am not licensed to practice law where you are. For advice about the criminal liabilities associated with any facts you are involved with, consult an attorney licensed to practice in your jurisdiction.
This is a general discussion about the general principles of law applicable to this situation.
That said, I am aware of no law that would prohibit your removal of such a device, your disabling or destroying such a device, regardless of whether it was “just for the hell of it,” or for other reasons. You might be liable civilly for the cost of the device, as a balilee, but even then that’s a weak claim.
All right, let’s say I attach somebody’s personal vehicle. What’s the worst penalty I could face? It would just be a civil tort, right?
You claimed earlier that the GPS located doesn’t damage the property. If it’s a civil tort would it even be worth their while to sue, since it sounds to me like the damages would be close to zero?
To clarify another thing… since this was done without a warrant, probable cause is not neccesary to attach a GPS device to somebody’s car.
Is there any standard for the cops here? Do they even need reasonable suspicion? Is there anything, in your view, that would prevent the cops from attaching GPS devices to hundreds of random cars in the neighborhood, sitting back and let their computers go on a fishing expedition to find suspicious driving patterns?
I apologize if I’m asking too many questions, but I’m getting pretty riled up about this subject. I honestly believe the founding fathers would be rolling in their graves if they knew about this.
I am not your lawyer, and I am not licensed to practice law where you are. For advice about the criminal liabilities associated with any facts you are involved with, consult an attorney licensed to practice in your jurisdiction.
This is a general discussion about the general principles of law applicable to this situation.
So if someone placed the GPS on another’s personal vehicle, WITHOUT ANY OTHER ACT, I’d say I’m not aware of a way to get to criminal liability. But note well the caveat: if you plant it on the car belonging to the cute girl in your Chem II class, we might see it as one of the predicate acts for stalking.
This is the key difference: it’s not just planting the GPS – it’s why you plant the GPS and what use you make of the information.
That sounds right… although, again, you might put the information gathered to some infelicitous use and thus be civilly liable for more than slight damages. You keep focusing on the GPS as though that ends it… but no one places a GPS for fun; they plan to use the info for some purpose, and therein would lie the opportunity for more serious consequences.
I honestly believe the founding fathers would be rolling in their graves if they knew about this.