It might not be the only damage you can argue about certainly. But I would likewise be stunned if anything you mentioned in your posts, including the loss of perceived value of having a GPS free vehicle, would count as damage for the purposes of the law. First, there is no evidence that the person knew his car had the GPS, so the “loss of value” would have occurred when he later learned about it, not when they attached it. Second, whatever perceived loss in value would be just that, perceived and highly subjective. It still wouldn’t get you past having to prove actual, real damage beyond de minimis.
It’s certainly an inventive argument, but I would be very very surprised if any appellate court accepted it.
I don’t like using ‘original intent’ in Constitutional arguments, but as an exercise in perspective, what do you guys think the Founders would have thought about the government secretly putting a demon in your wagon to report back everywhere you’ve been without, without a warrant?
In addition, it occurs to me depending on terms of loan or lease or insurance, the owner/driver of the care in question may be contractually obligated to maintain the value of the car. So the GPS may cause him to go out of compliance with his contracts despite his diligence. If it is discovered later by the other party (in an accident, on return of the leased car, etc.), then the burden will almost surely fall on the driver. So there would be damage of some sort there too, IANAL so I can’t say precisely what it is called. But it wouldn’t be de minimus.
No, the damage is equal to the cost of verifying the car is GPS free to a buyer, as I showed in post 157. Surely that cost would be more than de minimus.
Think analogously of buying a house if the seller is not obligated to disclose the actual state of the house. The buyer assumes the risk, and the price drops accordingly. This is no secret, and it is no different for a car.
Thanks I think! IANAL, so imagine if the argument were refined and presented by someone whose job it was to make a top-notch argument
If you could get passed the point that the placement of the GPS caused more than de minimus damage in the sense of a taking or otherwise, then what is the roadblock from there in prohibiting not only the use of the evidence, but the collection of it in future cases?
I would call it “too temporary, subjective and speculative to matter to a real court”. Criminal damage statutes are meant to protect property from real, actual damage, usually requiring some kind of monetary or physical expenditure to correct. My feelings got hurt because a GPS was on my car for a month and I didn’t know about it isn’t “damage”, nor is “In hindsight, I valued my car less because it had a GPS on it for a month.”
When I read that the first time, it didn’t make sense. I’m not sure I got it now either, but there is no evidence that this ever happened. I suppose you could create a hypothetical where a guy goes out of his way to assure the buyer of his car that it is free from a GPS during the time that the police had a GPS on his car, but, to be honest, I can’t imagine that happening in the real world whatsoever.
Again, you’re speculating on an incredibly bizarre hypothetical that, to my knowledge, has never and will never happen. That would never carry the day in court.
My argument is based on a car that tracks your movements being less valuable than one that doesn’t. An analogous situation would be a device that emits an intermittent high pitched beep. It doesn’t interfere with the operation of the car, or cost anything in terms of money, but it certainly makes my car less valuable. As I said before, that counts as damage in my book.
If there is something I can clarify, I will be happy to try.
I don’t think anyone is alleging a crime in the sense of “the mugger took my wallet”, it is a “taking” in the sense of eminent domain. My understanding (form news reports only) is that there have been novel, abstract, new applications of that doctrine recently.
It happens every time a car is sold. More specifically, I seem to recall a case where the car with GPS actually was sold, because, well, the guy wanted to sell the car I guess. My recollection is that the cops, not realizing the car had been sold, at least not for a while, ended up tracking the new owner, who was not otherwise a suspect in anything. Or maybe it turned out, not being a suspect, but having a car with a GPS installed by the police, brought him to the attention of the police, who then used the data in support of a later investigation into the buyer. I don’t recall exactly.
But it is clearly a risk that anytime you buy a car, the police are using it to track you. One could lessen and even remove the risk with a careful inspection, which has a cost.
But the risk is real, and so is the cost. The only real question is, how much of the cost to the buyer does the market assume is built into the price? Possibly not 100% because some people just don’t care, but > 0% because some people DO care.
Given the actual cost of verifying there is no device to the buyer, it won’t take much percentage in the market for it to rise above de minumus.
And the more such cases are publicized, the higher the percentage will be, as more people decide to care.
Doesn’t matter if buyer or seller assume the cost/risk, it still affects the price in the marketplace. Basic economics/game theory.
It is in no way bizarre. I have a book on the economics of game theory and the law which discusses just such matters. Many familiar markets have the same issues, such has housing. Whether or not buyer discloses significant issues or seller assumes the risk and costs, it is clear that the price is affected one way or the other. Probably any real estate agent can explain that wrt houses.
There is nothing new here, in economics, or legal concepts. what might be new is applying these principals in this type of case. But such things happen all the time too.
I don’t understand your question.
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My understanding was that you were hung up on the novel concept of damages. Beyond that, if the damages where shown, then where does my argument get stuck next? It is still a few steps between that and saying the data is inadmissible, and even further to saying that type of data should be subject to a blanket prohibition. But I made those cases further upthread, so I was asking where in those arguments (if at all) you see fault other than the novel application of damages.
Whatever “loss of value” you suffered by having the GPS on your car was temporary, speculative, unknown to you, and without monetary value. You can call it “damage” if you like, but that doesn’t make it fit “criminal damage”.
As to temporary, are the cops going to take the gps off should the car go on sale? How would they know? We can assume that the gps will remain during the entire time the care is for sale, correct? Hence it is not temporary enough to avoid affecting the sale.
The value of the loss is not speculative, it is the cost of a service to verify that there is no gps there. How that is done technically I am not sure, and it doesn’t matter. If it can be done, then it will cost to have it done. That is the cost and the damage. It affects the price of the car as surely as a dented fender does.
The cost is definitely knows, or certainly knowable. I am sure there are places that offer this service already.
The monetary value is real, knowable, and not speculative.
I have given more details already upthread.
You can assert it all you want, but you are wrong. Many markets work this way and it is well known economic game theory, as practiced by lawyers and other licensed professionals in various market places.
The issue is not if it is criminal damages, a la a hit-and-run accident, but whether or not the damages are real and sufficient to prevent the type of investigative data collection we are discussing.
Again, whatever “taking” happened would be “temporary, speculative, unknown to you, and without monetary value”. Unless there is a statutory allowance, I really doubt you could ever convince a court.
Ummm, no. I’ve yet to see a single car being sold “without GPS tracking” when, in fact, it does have a police GPS tracker on it. It just doesn’t happen.
If you remember, let me know.
No, they don’t. I suppose it is possible that a guy would sell his car claiming it to be GPS free, but it isn’t. But until that unlikely event happens and that particular person can demostrate some actual harm or taking, it won’t count under the law.
You mean supposing the police drilled a hole in the car to attach the GPS? Something like that? If there is actual damage, how would that effect the admissibility of the evidence? Is that what you’re asking?
Maybe. I can’t even convince you to read and understand, let alone reply, to the arguments I have already made in detail as to why what you are saying is as fallacious as saying the sun comes up in the west.
Whether it is labeled or not does not matter in the economics of it. The risk that the car is a police tracking device is now built into the economics of the used-car marketplace.
It appears you simply don’t understand the economics of how various disclosure regimes affect the price. I summarized it above, but I am sure google can give you much more.
Until you are clear on the underlying concept I am expressing, it probably won’t make much sense to dispute my conclusions.
No, never mind, at first I thought you had a clearer understanding of the novel sense of damage I was expressing. I no longer do, so I withdraw the followup question.
Worse, to the buyer, it means you are allowing the police, unknowingly, to track you and anyone else in the car, and exposing what will be argued as evidence in criminal and possibly civil cases that would not have arisen otherwise.
You’re confusing the term “value” as used by some people with the legal analysis of the criminal damage, takings, and the 4th Amendment. You may “value” the car less because it had a GPS tracker on it for a month (assuming you knew about it, which isn’t the case here), but that won’t convince a court that the police committed “criminal damage”, committed an improper “taking”, or otherwise violated your property interests sufficiently to allow recompense. The damage is simply temporary and speculative.
Make yourself more clear, and we wouldn’t have this problem. I’m pretty sure I’ve understood and my responses are not fallacious, but if it makes you feel better to think otherwise, have at it.
You can continue to play this little “you can’t understand” game, if it gets your rocks off. Enjoy it. But know I do understand. What I’m saying is that it is insufficient to persuade a court. It is simply theoretical, without a concrete occurance, and the allegations of (harm, damages, taking, “novel damages”, or whatever term you wish to use to make yourself feel better) won’t convince a court that a statutory or constitutional violation occurred.
Is there some reason that you and Bricker cannot answer a simple question and provide a straightforward answer? If you’re “speaking generally of the term in legal parlance” then give me the definition of damage in “legal parlance”.
IANAL, so imagine if the argument were refined and presented by someone whose job it was to make a top-notch argument