# 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:** 2
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [January 23, 2012, 6:28pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/21 "2012-01-23T18:28:09Z")
> [@jtgain](#):
>
> 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).
Er…
> [@](#):
>
> At common law, a suit for trespass to chattels could be maintained if there was a violation of “the dignitary interest in the inviolability ofchattels,” but today there must be “some actual damage to the chattel before the action can be maintained.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on Law of Torts 87 (5th ed. 1984) (hereinafter Prosser & Keeton). Here, there was no actual damage to the vehicle to which the GPS device was attached.
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [January 23, 2012, 6:29pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/22 "2012-01-23T18:29:52Z")
> [@jtgain](#):
>
> 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)
Read the syllabus, they substituted the old common law trespass and replaced it with the Katz case.
However, there are others forms of tresspass. If I am throwing a baseball over the roof of your house to another person but never touch any part of your property, I am still tresspassing as you own the “air space” over your home. It is not absolute though, as airplanes can fly over at certain altitudes, etc.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 6:40pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/23 "2012-01-23T18:40:59Z")
> [@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 have to agree. Tell the truth, with five justices supporting the mosaic theory, I do not see why a majority opinion was not written by one of them.
I suppose four said “we need not resolve that idea” and one agreed with them even though they supported a concurrence that upheld mosaic theory? I think what we actually have here is the supreme court in majority by plurality upholding the mosaic theory, and I have a great degree of confidence that I could make a convincing argument to my state supreme court based on this decision that the mosaic theory of privacy should be applied.
And Bricker is contradicting himself in the previous thread where he (desperately) tried to argue a concurring opinion makes “the state of the law.” But Bricker’s got more confessing he was wrong to do, methinks.
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### Author:  [@elucidator](https://boards.straightdope.com/u/elucidator)
#### Post date: [January 23, 2012, 6:41pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/24 "2012-01-23T18:41:38Z")
So, basically, they moved the question from an uncomfortable area, privacy, into one more agreeable, property.
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### Author:  [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)
#### Post date: [January 23, 2012, 6:50pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/25 "2012-01-23T18:50:28Z")
> [@Bricker](#):
>
> Trespass to chattel. 🙂
Well, I guess that means the cops can’t attach a GPS tracker to a guy’s car OR rape his cows.
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### Author:  [@Marley23](https://boards.straightdope.com/u/Marley23)
#### Post date: [January 23, 2012, 6:50pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/26 "2012-01-23T18:50:42Z")
I’ve merged **Boyo Jim** ’s MPSIMS thread on this decision into **Bricker** ’s thread. The posts to **Boyo Jim** ’s thread are now posts 15, 16, and 17 in this thread.
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [January 23, 2012, 6:51pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/27 "2012-01-23T18:51:03Z")
> [@David42](#):
>
> I have to agree. Tell the truth, with five justices supporting the mosaic theory, I do not see why a majority opinion was not written by one of them.
When the Chief Justice is among the majority, he picks who writes the opinion.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 6:57pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/28 "2012-01-23T18:57:50Z")
> [@Bricker](#):
>
> See footnote 2 of Alito’s opinion.
Where Alito argues that in A TORT CONTEXT, you have to prove some actual damages?
I always said that when it comes to damages in a civil action a certain threshold has to be met; any judge will throw out a lawsuit that is ONLY concerned with 10 cents damage.
Thats the same as what I’ve told you. You just don’t get it.
Please NOTE that Scalia DID NOT apply “18th century tort law” to decide this case. That is the characterization placed upon it by others. Scalia did not write
“18th century tort law controls search and seizure issues,” he merely said the court had been wrong in entirely abandoning trespass.
Besides it still looks like you’re relying upon one judge in a concurrence to prove your point. I learned a different kind of _stare decisis_, myself.
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [January 23, 2012, 7:02pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/29 "2012-01-23T19:02:26Z")
> [@David42](#):
>
> Where Alito argues that in A TORT CONTEXT, you have to prove some actual damages?
>
> I always said that when it comes to damages in a civil action a certain threshold has to be met; any judge will throw out a lawsuit that is ONLY concerned with 10 cents damage.
>
> Thats the same as what I’ve told you. You just don’t get it.
If you are familiar with a 1983 action, unless damages are proven, the trier of fact can only award $1.00.
You can be damaged on the face, but more than that has to be proven to come away with more than a buck.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 7:03pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/30 "2012-01-23T19:03:23Z")
> [@lawbuff](#):
>
> When the Chief Justice is among the majority, he picks who writes the opinion.
True, but Roberts is not amongst the five who upheld the mosaic theory.
As five would decide this case by upholding the mosaic theory, and four would not but instead decide on trespass reasoning, and all 9 agree in result, I just can’t see why the “majority opinion” is the opinion of the four? What am I missing?
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 7:08pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/31 "2012-01-23T19:08:45Z")
> [@lawbuff](#):
>
> If you are familiar with a 1983 action, unless damages are proven, the trier of fact can only award $1.00.
>
> You can be damaged on the face, but more than that has to be proven to come away with more than a buck.
Right. Bricker and I have a long-standing argument wherein, I believe, Bricker holds that trespass to chattels is ok under 4th amendment law so long as the intrusion is de minimis, because, according to him, it is not a search if the intrusion is de minimis. He won’t confess its not 4th amendment law.
You’d better be asking for something else as well besides monetary damages, like an injunction or declaratory judgment, if you want a judge to entertain a one-dollar lawsuit.
One crusty old fella I know dismissed a case and pulled a dollar out of his pocket to “pay” the “claim” of a frivolous one dollar lawsuit, and said “Quit wasting my time!” to the fool who brought it.
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### Author:  [@Simplicio](https://boards.straightdope.com/u/Simplicio)
#### Post date: [January 23, 2012, 7:12pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/32 "2012-01-23T19:12:05Z")
> [@David42](#):
>
> True, but Roberts is not amongst the five who upheld the mosaic theory.
>
> As five would decide this case by upholding the mosaic theory, and four would not but instead decide on trespass reasoning, and all 9 agree in result, I just can’t see why the “majority opinion” is the opinion of the four? What am I missing?
I think “the majority” is simply those who agree with the final holding. In this case all nine were in the majority, so only one person gets to write the main opinion. It doesn’t matter how the numbers break down in the reasoning to get to the holding. As long as they all agree in the final result, the Chief gets to decide who writes the opinion. So far as I know, that and some (optional, apparently) cool stripes on your robe are pretty much the only power the Chief Justice gets for being Chief.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 7:12pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/33 "2012-01-23T19:12:08Z")
> [@elucidator](#):
>
> So, basically, they moved the question from an uncomfortable area, privacy, into one more agreeable, property.
Not quite; they took an either-or approach; search and seizure is now subject to either analysis or both.
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### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [January 23, 2012, 7:13pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/34 "2012-01-23T19:13:40Z")
I like the ruling. I seems like it stayed within the bounds of current law and left out the mosaic theory which is messy to begin with. I don’t understand the whole trespass to chattel idea, but I do know that no one has a right to put stuff on my car or other property without my permission and now that applies to cops as well as private citizens.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 7:16pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/35 "2012-01-23T19:16:29Z")
> [@Simplicio](#):
>
> I think “the majority” is simply those who agree with the final holding. In this case all nine were in the majority, so only one person gets to write the main opinion. It doesn’t matter how the numbers break down in the reasoning to get to the holding. As long as they all agree in the final result, the Chief gets to decide who writes the opinion. So far as I know, that and some (optional, apparently) cool stripes on your robe are pretty much the only power the Chief Justice gets for being Chief.
Yeah I guess I wasn’t thinking that nine vote for “trespass” and only five vote for “mosaic” so I suppose that makes sense.
All we need is a case where trespass doesn’t apply and we have the mosaic precedent, if we’re not thinking we already do. I think if five Supreme Court Justices agree with the D.C. court’s mosaic theory, then that’s our caselaw AS WELL, by plurality. After all, only four justices disagree.
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [January 23, 2012, 7:18pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/36 "2012-01-23T19:18:25Z")
> [@David42](#):
>
> Right. Bricker and I have a long-standing argument wherein, I believe, Bricker holds that trespass to chattels is ok under 4th amendment law so long as the intrusion is de minimis, because, according to him, it is not a search if the intrusion is de minimis. He won’t confess its not 4th amendment law.
There are also seizures that can be deminimus in nature. An officer can order a person out of a stopped motor vehicle. Although this is a seizure, the SC said that doing so does not affect a persons rights.
> [@](#):
>
> You’d better be asking for something else as well besides monetary damages, like an injunction or declaratory judgment, if you want a judge to entertain a one-dollar lawsuit.
Well, in a 1983 action, the damages to conform to proof comes after the evidence is submitted for deliberation. No one files such an action for just $1.00, but I see what you mean.
[/QUOTE]
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 7:18pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/37 "2012-01-23T19:18:31Z")
> [@Saint\_Cad](#):
>
> but I do know that no one has a right to put stuff on my car or other property without my permission
Then you DO understand the idea of trespass to chattels, because you describe it. You just didn’t understand the terminology.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 7:26pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/38 "2012-01-23T19:26:33Z")
> [@lawbuff](#):
>
> There are also seizures that can be deminimus in nature. An officer can order a person out of a stopped motor vehicle. Although this is a seizure, the SC said that doing so does not affect a persons rights.
Not without probable cause. Otherwise you just legalized “driving while black.”
> [@lawbuff](#):
>
> Well, in a 1983 action, the damages to conform to proof comes after the evidence is submitted for deliberation. No one files such an action for just $1.00, but I see what you mean.
Oh, but people DO file such ridiculous lawsuits.
Overall what I am saying is that de minimis is not something that transforms a search into a non-search. The amount of time and trouble of the searched person just doesn’t factor. Here and there an odd judge has said that, but it’s not the state of the law. Bricker proposed one concurring judge to prove this is the state of the law.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 7:32pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/39 "2012-01-23T19:32:28Z")
> [@Bryan\_Ekers](#):
>
> Well, I guess that means the cops can’t attach a GPS tracker to a guy’s car OR rape his cows.
Well under this opinion the cow raping is fine, just so long as they don’t pry the cows for information.
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### Author:  [@erislover](https://boards.straightdope.com/u/erislover)
#### Post date: [January 23, 2012, 8:08pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/40 "2012-01-23T20:08:27Z")
> [@Bricker](#):
>
> 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.)
In the last thread, too, I seemed to have the impression that I read much more into _Kyllo_ than you did. When I last read _Kyllo_, it seemed that the problem was not that the search was improper as such, but that the search _as conducted_ could reveal information that was protected, rendering it improper. Take the case with whether drug-sniffing dogs constitute a “search” under the fourth—I’m sorry, I forget the name, I think it was something like _Caballo_ but I cannot recall and my google-fu is weak at the moment—anyway, take that case. The esteemed court basically said “Dogs can’t search.” What they meant was that dogs _couldn’t reveal protected information_. Whether that’s true—I don’t think it is, but whatever—this was the problem with _Kyllo_. Or so it seemed, because I asked myself, not unreasonably, what if an AI was doing the looking, and it only flagged houses with suspicious heat signatures? In this case, no officer is looking at someone bathing. Can AI search, if dogs can’t? (An enterprising software company might step up here, if they don’t have qualms about extending the reach of law enforcement…)
In this fashion, I would have expected the GPS thing to fly without question, because “GPS can’t search,” “places aren’t protected,” “public activity”, et cetera. To now find it smacked down on some other totally tangential thought is at once surprising, and scary, because I feel like the backdoor via _Kyllo_ is still there, lurking.
> [@](#):
>
> 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.
It’s not unreasonable of the court, but in my opinion it settles no broader concern over the relationship of law enforcement leveraging technology and individual rights.
eta: Caballes was the court case
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