# I was Wrong About the GPS, but ...
**URL:** https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402
**Category:** Great Debates
**Created:** [January 23, 2012, 3:59pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402 "2012-01-23T15:59:33Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [January 23, 2012, 3:59pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/1 "2012-01-23T15:59:33Z")
…right about the mosaic.
Today the Supreme Court release their ruling in _Jones v. US_, about the placement of a GPS on a car without a warrant.
I argued in several eariler threads that this was perfectly permissible under the theory enunciated in _Katz_ – there was no invasion of privacy in an area that society was prepared to recognize as reasonable.
The lower court offered up a novel theory --that even though any single trip a person takes in his car is visible on the public streets and thus not protected, the sum total of all such trips – the “mosiac” picture formed by the trips – is private, society should be prepared to recognize it as a reasonable expectation of privavcy, and thus it should be protected.
The Court did not adopt that theory.
Nonetheless, they overturned Jones’ conviction, on a much older theory: trespass. Prior to _Katz_, the touchstone for Fourth Amendment violations was physical trespass. _Katz_, which dealt with the government wiretapping a phone booth frequented by the accused, held that trespass is irrelevant: it’s the invasion of privacy in areas we reasonably expect privavcy.
Today’s opinion says: nope, it’s also still trespass:
> [@](#):
>
> Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test.
Unsurprisingly, the opinion draws on _Kyllo_’s reasoning, since the author of the opinion was Justice Nino Scalia, who also wrote _Kyllo_ (which held that the government’s use of thermal imaging to look at a house from outside to see what was happening inside was a search within the meaning of the Fourth Amendment.)
So – I was wrong, wrong, wrong about this outcome, for a reason that I did not predict. I am happy to see the “mosiac” theory of privacy discarded, and it’s hard to argue with the point Scalia makes – that up until comparatively recently, trespass was the key aspect of a Fourth Amendment violation.
Anyway – makes sense to me, and I just wanted to announce my predictive failure with at least similar gusto to my announcements of my predictive successes.
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### Author:  [@Duckster](https://boards.straightdope.com/u/Duckster)
#### Post date: [January 23, 2012, 4:05pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/2 "2012-01-23T16:05:28Z")
[Washington Post article for us non legal eagle beagles](http://www.washingtonpost.com/business/technology/supreme-court-says-search-warrants-needed-when-police-use-gps-devices-to-track-suspects/2012/01/23/gIQA7wL1KQ_story.html).
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [January 23, 2012, 4:06pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/3 "2012-01-23T16:06:30Z")
Linky? In what sense was it a trespass? Physical touching of the car?
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### Author:  [@Simplicio](https://boards.straightdope.com/u/Simplicio)
#### Post date: [January 23, 2012, 4:08pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/4 "2012-01-23T16:08:20Z")
[Original thread](http://boards.straightdope.com/sdmb/showthread.php?t=576049)
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### Author:  [@Acid\_Lamp](https://boards.straightdope.com/u/Acid_Lamp)
#### Post date: [January 23, 2012, 4:33pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/5 "2012-01-23T16:33:27Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> Linky? In what sense was it a trespass? Physical touching of the car?
I can’t follow the legalese, but my guess is that you take a bit of your “property” with you when in your vehicle. Wherever you park becomes your “property” at least in regards to police in this particular circumstance. They can’t just mess about with your things simply because you are out in public, and thus they are “trespassing” because they don’t have any other _legitimate_ reason to be there. I wonder if this means they could just shadow someone until they broke some minor parking violation and THEN gps them.
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [January 23, 2012, 4:34pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/6 "2012-01-23T16:34:03Z")
Good. I never liked the idea that the government could, without a warrant, modify a piece of personal property for the purposes of surveillance.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [January 23, 2012, 4:48pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/7 "2012-01-23T16:48:12Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> Linky? In what sense was it a trespass? Physical touching of the car?
Trespass to chattel. 🙂
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### Author:  [@silenus](https://boards.straightdope.com/u/silenus)
#### Post date: [January 23, 2012, 4:56pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/8 "2012-01-23T16:56:13Z")
I also like that there was substantial support for extending this protection to GPSing cell phones and the like.
_Justice Samuel Alito also wrote a concurring opinion in which he said the court should have gone further and dealt with GPS tracking of wireless devices, like mobile phones. He was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan._
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### Author:  [@Simplicio](https://boards.straightdope.com/u/Simplicio)
#### Post date: [January 23, 2012, 4:58pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/9 "2012-01-23T16:58:08Z")
> [@Bricker](#):
>
> …right about mosaic
Did anyone read the concurrences? My take on them is that there are five justices that would subscribe to the mosaic theory if tresspass hadn’t been an issue here.
So I predict the mosaic theory will be upheld in a SCOTUS case in the near future.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [January 23, 2012, 4:59pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/10 "2012-01-23T16:59:02Z")
> [@silenus](#):
>
> I also like that there was substantial support for extending this protection to GPSing cell phones and the like.
>
> _Justice Samuel Alito also wrote a concurring opinion in which he said the court should have gone further and dealt with GPS tracking of wireless devices, like mobile phones. He was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan._
Well, I don’t know that we can draw that conclusion. Perhaps Alito and Breyer felt that the court should not extend such protections to phones, and Ginsberg and Kagan felt they should, but both felt the court should address the issue now.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [January 23, 2012, 5:02pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/11 "2012-01-23T17:02:24Z")
> [@Simplicio](#):
>
> Did anyone read the concurrences? My take on them is that there are five justices that would subscribe to the mosaic theory if tresspass hadn’t been an issue here.
>
> So I predict the mosaic theory will be upheld in a SCOTUS case in the near future.
I disagree, As the main opinion addresses location favorably from the point of view of _Knotts_:
> [@](#):
>
> Karo accepted the container as it came to him, beeper andall, and was therefore not entitled to object to the beeper’spresence, even though it was used to monitor the container’s location.
What are you reading that makes you think mosiac privavcy is ripe for approval?
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### Author:  [@Ravenman](https://boards.straightdope.com/u/Ravenman)
#### Post date: [January 23, 2012, 5:05pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/12 "2012-01-23T17:05:38Z")
I watched the prior threads on the GPS tracking issue with great interest, but it always seemed to me just as a matter of common sense that attaching tracking devices to the personal property of a person was not analogous to having someone watched by the police from a distance. Regardless of the legal theory used to bring this conclusion to bear, to have police on their own initiative be able to precisely track the movements for as long as the police wish without any judicial oversight is just inherently wrong to my sense of how this country should work.
I’m very pleased to see that the decision was a unanimous one.
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### Author:  [@Simplicio](https://boards.straightdope.com/u/Simplicio)
#### Post date: [January 23, 2012, 5:18pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/13 "2012-01-23T17:18:08Z")
> [@Bricker](#):
>
> I disagree, As the main opinion addresses location favorably from the point of view of _Knotts_:
The main opinion did. But the concurrences called for using something similar to the mosaic principal in these cases, since a lot of GPS tracking doesn’t require trespass.
For example, from Alito’s concurrence:
> [@](#):
>
> Under this approach, relatively short-term monitoring
> of a person’s movements on public streets accords with
> expectations of privacy that our society has recognized
> as reasonable. See Knotts, 460 U. S., at 281–282. But
> the use of longer term GPS monitoring in investigations of
> most offenses impinges on expectations of privacy. For
> such offenses, society’s expectation has been that…law
> enforcement agents and others would not—and indeed, in
> the main, simply could not—secretly monitor and cata-
> logue every single movement of an individual’s car for
> a very long period.
Sotomayor’s concurrence says something similar. So my take is that there are five justices that would support the mosaic principle if there was no trespass. The reason that this wasn’t in the main opinion was that Robert’s didn’t agree and he gets to decide who writes the main opinion. Presumably a future case that didn’t involve the trespass issue would find five justices in the current court willing to establish the mosaic principle.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 5:29pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/14 "2012-01-23T17:29:12Z")
> [@Bricker](#):
>
> Today’s opinion says: nope, it’s also still trespass:
I should clarify that the Supreme Court did not _abandon_ “reasonable exopectation of privacy,” they simply haved ruled that the trespass theory is still valid.
On another angle, Bricker, I note there’s not a shred of your “de minimis” theory in the supreme court’s opinion here. You really should reconsider your views on that, Bricker. It’s not a search and seizure concept, like I tried to convince you before.
BTW for all those who want to read the opinion itself, here’s Jones:
[http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf](http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf)
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### Author:  [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)
#### Post date: [January 23, 2012, 5:43pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/15 "2012-01-23T17:43:05Z")
Hot off the presses!
[The US Supreme Court has unanimously decided that police forces must obtain a search warrant to track the vehicles of suspects with GPS devices.](http://www.washingtonpost.com/business/technology/supreme-court-says-search-warrants-needed-when-police-use-gps-devices-to-track-suspects/2012/01/23/gIQA7wL1KQ_story.html?wpisrc=al_comboPNE_p)
From the story, they seem to focus on the act of physically attaching the device to the vehicle, which the decision says constitutes a trespass without a warrant.
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [January 23, 2012, 5:46pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/16 "2012-01-23T17:46:57Z")
> **[10-1259.pdf](https://www.supremecourt.gov/opinions/11pdf/10-1259.pdf)**
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### Author:  [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)
#### Post date: [January 23, 2012, 5:47pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/17 "2012-01-23T17:47:34Z")
Another note. According to the article, Justice Alito’s concurring opinion suggests that this ruling doesn’t necessarily apply to tracking that doesn’t require installing a physical device, such as GPS data of cell phones.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [January 23, 2012, 5:50pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/18 "2012-01-23T17:50:56Z")
I’m fine with the decision and the reasoning. I think the question is closer than most people reading this thread will believe, but close questions in criminal law should always be resolved against the government.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [January 23, 2012, 6:09pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/19 "2012-01-23T18:09:25Z")
> [@Bricker](#):
>
> Trespass to chattel. 🙂
Thank you. Thank you. I’ll take credit for calling it in the other thread. How could it not be a trespass to a chattel? Is it a physical touching which substantially affects the value of the car (a non-tracked car is more valuable than a tracked one).
fwiw, I liked the mosaic theory as well. Better known as stalking.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [January 23, 2012, 6:24pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/20 "2012-01-23T18:24:44Z")
> [@David42](#):
>
> I should clarify that the Supreme Court did not _abandon_ “reasonable exopectation of privacy,” they simply haved ruled that the trespass theory is still valid.
>
> On another angle, Bricker, I note there’s not a shred of your “de minimis” theory in the supreme court’s opinion here. You really should reconsider your views on that, Bricker. It’s not a search and seizure concept, like I tried to convince you before.
See footnote 2 of Alito’s opinion.
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