There’s a bit of “magic words” thinking in the foregoing.
The legal framework under which we live is not a collection of blindly-applied principles. Not, a cop can’t use your car as his personal overnight shipper; all of the discussion so far has involved cops undertaking legitimate investigations. If a cop leaves the realm of legitimate investigation, he loses the protection his official status grants him, whether he’s using your car to transport packages or using a GOS to keep track of an ex-girlfriend’s new boyfriend.
You know, the Constitution is not the be-all and end-all of our ability to limit police behavior and restrict it from things we find odious.
Police departments would, I imagine, frown on their officers just monitoring people (and using valuable equipment) “for the heck of it.” But there is no minimum quanta of suspicion needed to make such an action Constitutionally sound, no. Similarly, I don’t see a Constitutional bar in the red light or signal change plan. Right now, we have cities with cameras at intersections that capture all such infractions; they do so without offending the Constitution.
The pollution sensor gives me a bit more pause, since that would appear to give cops information that they couldn’t get simply from observing you. I suppose you might, then, have a reasonable expectation of privacy as to the pollution your car is putting out as you drive.
Of course, many states have an emissions control inspection requirement, which (in Virginia) mandates subjecting your vehicle to a pollution test before you may register it and every two years thereafter.
So… I don’t know how those two factors would intersect.
Then maybe we should pass laws forbidding the police from doing such things.
But what we should NOT do is take the position that because it feels wrong, it must be unconstitutional.
Your cite doesn’t make sense, nor does the followup.
YOU are the one saying I have records in my possession and making about that. YYou did that to rebut the line of reasoning I gave earlier.
I asked you to show me how they are in my possession. And by your cite, even if they are, the police would require a subpoena to gather them from me. Does the 9th Circuit case in the OP involve a subpoena for the records the car-owner had on the GPS that police were kind enough to lend him?
How do we know that if there is no judicial oversight?
But the second someone invents a remote sensing device that can identify the pollutants from a distance, any distance, then it would not give you pause? Because it seems to me I have read of such devices in the past.
So why is a junk fax an actionable tort, worth $500, even though the cost of each violation is probably a cent or so? Why is such law being applied to spam, where each individual violation is probably a tiny fraction of a cent in terms of “damage”?
I know this is tort law and not criminal law, but I don’t get how you can reject out of hand the idea that a change in police procedure that shifts the costs of investigation from the police (paying cops to follow people around) to those investigated (who have to carry around investigative equipment) isn’t significant if it were allowed to be enacted on a mass scale.
Also, you didn’t answer my point that you generally need a WARRANT to compel people to spend their money to produce their own records. I expected your example of accounting papers for IRS investigations, etc., but surely that does not apply in general… or are you saying that a policeman can show up to your door and compel you to give him copies of your tax returns, emails, business correspondence, etc.?
Also, I would note that even your quotation specifically mentions a subpoena, which doesn’t require the same level of suspicion as a warrant, but at least it sets a standard – issuing blanket subpoenas to people for no apparent reason is frowned upon.
Moreover, a subpoena has to be served, i.e., the person has to be made aware of the fact that he is being compelled to produce documents (and the associated cost). Such a person might choose to produce documents in such a way that minimizes cost to himself – cheaper paper, etc.
In this scenario, a car owner does not have this luxury, since a HIDDEN device is tacked onto his car to collect the evidence against him. He is not aware that he may be taking on a cost – however de minimis – to help the police investigate him.
47 USC § 227(b)(3)(B) says that when junk faxes are sent, a person can sue for:
In other words, the law recognizes the precise problem and fixes it by setting a fixed figure for damages.
Note that this law doesn’t apply to the placement of GPS devices, but to junk faxes. But note also that nothign would prevent a legislature from enacting a similar law targeting GPSes.
Because your main example was flawed, as I have indicated.
No, but now you’ve switched from the Fifth Amendment (protecting you against self-incrimination) to the Fourth Amendment (secure in your house and papers against search). You can’t keep leapfrogging back and forth between the two. The Fourth Amendment doesn’t prevent the GPS placement because the information gained is public. The Fifth Amendment doesn’t because the information is not testimonial.
No subpoena, but I’ve completely lost your objection now.
The Fourth Amendment doesn’t forbid this action because the police are getting information about your public travels. The Fifth Amendment doesn’t forbid this because the information is not testimonial in nature.
We had a side discussion about costs, with the objection raised that the owner must bear the extra gasoline costs of transporting the GPS. I pointed out that this cost is so tiny that the law would not likely concern itself with that. I pointed out analogous examples where the law forces someone to bear small costs – great than the fraction of a cent in play here – when compelling document production.
“would not likely concern itself” - in other words, it would listen to the argument, because the laws are in fact not clear on the matter? Is that your position?
Also, I recall reading about a case where a car with a police-installed GPS was sold to an unknowing buyer who then was tracked by the police.
Being tracked by the police is pretty undesirable to anyone, so that would seem to argue that economically, there is a damage to the car’s value because there is a risk that one, as a buyer, could inadvertently be “providing records” (as you called it) to the police about your whereabouts.
Further, the more this is done, the higher the risk of this happening, and hence the more the damage to the resale value of the car.
This would be more than a “fraction of a cent”, at the very least it would be the cost of determining to certainty that there was no such device attached. Regardless of if buyer or seller incurred the cost of such a service, it would change the negotiated price of the car.
Also, I note you have not answered the objection as to whether or not the device can only record information when the vehicle is in a place where it would be legal to install the device.
E.g. as it stands now, the gps could be installed if my car is parked on the street but not if it was in my garage (does it matter if the door is open or shut?). Once placed, can the device still function when the car is moved to my garage? How would it even know?
What if the vehicle was driven onto a large ranch clearly marked with no trespassing signs?
If so, then that would seem to violate the idea that the device merely augments what the officers could see for themselves, since they would not be able to place the devices with the car in those locations. Maybe they can sit and watch someone come and go, but the device on the ranch allows them to track what they can not see.
I suppose. It would certainly listen to the argument, but I cannot imagine the “costs of gasoline” argument going anywhere.
But that didn’t happen in this case. So your claim is that if this practice is permitted, there’s a great cost because in general buyers would require certification that the car they’re buying was police GPS free?
Um… OK. That’s a bit speculative, wouldn’t you say? I suppose you could build a factual record for a court, showing that droves of buyers were demanding that used car sellers warrant their vehicles GPS-free, and the court could use that factual finding to conclude that general placement of GPS devices creates a non-trivial cost, and thus a particular GPS placement created that cost.
I don’t think you’re anywhere near being able to make that factual record now, though. A quick look at eBay and Carfax doesn’t find a single indication that the buying public is demanding GPS-free certification from sellers.
Yes, I’d say that any information gleaned from the GPS once it entered the ranch would be inadmissible. But I can’t imagine the police needing more information than simply, “He entered the ranch.”
But I agree that the Fourth Amendment would prohibit the introduction of any information after the entry to the ranch (or, more accurately, after the car left the area visible from public roads.)
Same thing with the garage… but since the GPS only discloses location information, all it’s doing is saying “Inside garage,” in that case, so whehter the door is open or closed seems irrelevant.
No,that is how free markets are said to work: They adapt prices instantly to the information or lack of information that is available. And that police do this is certainly information that is available freely to the marketplace. So, yes, ALL car resale prices are already affected.
If you are a free-marketeer, that is.
Not needed to do that, one would only need to show the expert testimony that this is how such markets work, and that the car resale market is in fact such a market, and that information about the police tracking vehicles is something that the market would take into account for all cars, because there is a negative perceived value to it.
And then you get back into the “government taking” argument, even for people whose cares *don’t have gps".
You say legislatures can pass laws banning this, but I would say that economically, it is a “taking”, and hence already banned.
So what? Do you think in the stock market for example, only some information is taken into account in setting prices? In the housing market? In the food market? In any market?
If you want to make that argument, then show me how all these - and by extension all - markets only adapt to information buyers ask for directly?
I predict you won’t be "anywhere near being able to make that factual record "
Really? Suppose they decide that the place where the car travels is where the roads are, and so they create a map? Then they decide where the car stops is where the marijuana growing operation is, and proceed on that information? You can’t imagine that?
Sorry, the open/closed question was added as an afterthought. It wasn’t clear. What I meant was, absent a no trespassing sign as the court recommends, could the officers go into an open garage to place the device? What about a carport with no door, but only 0, 1, or 2, or 3 walls? What if the location of the garage or carport is not visible from the street?
Nice strawman. But if this theory were so, presumably you would see advertisers saying their cars are certified GPS-free, and buyers saying they are looking for GPS-free cars.
I don’t see a single such example on Carfax, Edmunds, eBay, or elsewhere.
Where are those statements?
They don’t exist, because of something else free markets do: they evaluate facts. And in this case, the market has, thus far, assigned zero cost to the knowledge that police may place GPS devices on cars.
And then on cross-examination, the expert is asked the same question I just asked you: where are the advertisers saying their cars are certified GPS-free, and buyers saying they are looking for GPS-free cars.
Tax protestors say that the Sixteenth Amendment isn’t valid.
And they have as much success with their claim as you will have with yours. It’s a frivolous claim, with no support in any case law.
“The stock market dropped sharply today as investors reacted to the news that Saturn has 62 moons, rather than 61 as previously suspected.”
To sustain a claim like this, you must be able to point to some positive piece of information. You can’t simply say, “All markets react to all news, therefore a GPS on a car diminishes all car sale prices.”
It’s not me that would have to make any record. The practice is legal in the 9th Circuit, and the DC Circuit which overturned a similar practice did so on Fourth Amendment privacy grounds, not any “takings” theory.
OK, fair enough. I have already agreed that such evidence is inadmissible, regardless.
Any given situation is a threshold question of fact for the judge to resolve. In my opinion, even an open garage is not an invitation to any passerby to step in, and the carport would depend on whether it was necessary to traverse the carport to get to the door. In the instant case, it was necessary to walk up the driveway to get to the front door.
If a private citizen were to attach a GPS tracker to every police car they come across for the purpose of broadcasting their current locations in the interest of information sharing only, would there be potential criminal and civil penalties?
I’m nearly certain that simply posting a “no trespassing” sign in CA would not create an expectation of privacy on your otherwise exposed driveway. Knowing that in CA you may not carry a concealed weapon in public, and since a driveway is considered quasi-public, this is not allowed unless you are licensed. You would not be able to handwave this away with a simple sign.
Under your given example, one could assume the coordinates of the grow op would be inadmissible as evidence and therefore probably not grounds for a warrant. I do see where you are headed however, and it was the main point I was attempting to make with my first post. The reason I think this may be a poor example is that road maps (of private roads) may be readily available.
CODE OF CIVIL PROCEDURE
SECTION 415.10-415.95
This is a case of civil law, however I am not aware of any law which would allow police to enter a gated community for any reason other than the above law OR an emergency/invitation. Assuming that is the case, if the GPS device was not disabled upon entering such a community your movements could be tracked to specific houses, and by extension a list of acquaintances within the community could be established. The (public) movements of these acquaintances could then be tracked, and could lead the police to evidence of a crime. My point being without the GPS device functioning on private property, the police probably wouldn’t have followed this individual. In my scenario, the GPS data would not need to be admissible because the police could have just stumbled upon the crime by random chance, when in fact they did not.
Of course the entire argument is pointless if a police officer is monitoring the device and disables recording/viewing while on private property, but I doubt this is the case. If the device functions as I’ve described (whether of not the information is used) the entire ‘sensory extension’ argument falls to pieces, because information is still being recorded outside of the police sensory range.
That is not a strawman, it is basic economics. The market doesn’t break down the reason for a price in itemized lists. The price represents the consensus between buyers and sellers at a given time, not how they got to that consensus.
If you don’t believe me, then go look on your shelf and tell me which products there came with a complete description of the seller’s costs to you, the buyer, and to which you the buyer provided all your motivations to the seller while you negotiated a price.
I predict it will be a very short list, with exactly zero items on it.
And then the expert will school the cross-examiner and the court in the market, complete with the evidence of all of academia and government understanding to back him or her up. The expert will be prepared for the question
No one is talking about taxes here. There are plenty of disputed “takings” cases, and some of them are abstract, and some of them are successful. You know better than to say that because one category of such cases are non-sensical that all of them are.
Really? There is no case law at all since 1789 that says the government can not modify private property and affect the value of it to the owner? So if it turns out my front yard is the best place for the local road crew to store their equipment while they straighten the curve down the street, too bad for me?
That is precisely what the body of related economics studies say. Any information is rapidly accounted for as it becomes widely known. Otherwise, you are left with arbitrage opportunities.
Not all information will move a market price, but it will be accounted for. If it is irrelevant, such as your by-design silly example, then it won’t change the price, because the related value is nil.
But, to extend your example, if the company in question is planning to mine gold on Saturn’s moons, and the news is that the new moon is solid gold, then of course it will change the value of the company. So will a discovery that all the moons are gaseous and not only have no gold, but can’t be landed on.
More realistically, int eh case at hand, the true value is the cost of satisfying the buyer that the car is bug-free. Which is a real cost.
Here are the choices:
1 - Seller assumes the cost and discloses
2- Seller assumes the cost but doesn’t disclose
3- Buyer assumes the cost
4 - No one assumes the costs, so buyer assumes the risks
In case 2 through 4, the buyer assumes the risk that the car is not “police-free”, and knows the cost of making it so. So he bids the price of a police-free-car minus his cost of verifying the car is free of GPS.
In case 1, the Seller has put that cost of verifying out up front, and shares that info. Since the buyer then does not have to assume that cost himself, the price of the car increases by some percentage, close to or even at, 100% of the cost incurred by the seller. Why would Buyer do that? Because he is going to do it himself anyway.
Even if the buyer is not actually going to do the check, he is still assuming a risk, and so there is a cost to seller to have buyer assume the risk.
Either the buyer asumes the cost and discloses,
Were they presented alternate theories?
So if it is inadmissible, and the police know that a priori, why are they allowed to collect it again without a warrant?
Agreed.
What door? Carports don’t have doors. Not the car door, right? let’s jsut double check - the GPS is on the outside of the car, right?
Huh? What does the front door have to do with it? Was the car inside the house? If it was, wouldn’t that meet the standard of demonstration of expectation of privacy? That is what I am trying to explore with the carport question, and the visibility of the car from the street.
There is a concept in American law that is called de minimis. Basically, it’s the idea that some things are so minute as to be unenforceable at law. Some parts of the law, including copyright infringements, tax code, and criminal damage, require more than de minimis.
I would be stunned if the temporary placement of a GPS tracking device counted for the purposes of criminal damage statutes based on a fraction of a cent loss when driving.
