# 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:** 3
### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [January 23, 2012, 8:14pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/41 "2012-01-23T20:14:52Z")
> [@David42](#):
>
> Then you DO understand the idea of trespass to chattels, because you describe it. You just didn’t understand the terminology.
I thought TtC involved some sort of real damage like destruction or reduction of value or denial of service like if someine steals my car I can sue them for rental cost. I didn’t think it applied if no damage was done (is that the same as Bricker’s de minimus argument?)
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### Author:  [@erislover](https://boards.straightdope.com/u/erislover)
#### Post date: [January 23, 2012, 8:15pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/42 "2012-01-23T20:15:06Z")
> [@erislover](#):
>
> eta: Caballes was the court case
Nope, it wasn’t. Caballes was about detaining. I’ll try and find it later when I get home, I think I have the info saved there.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [January 23, 2012, 8:22pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/43 "2012-01-23T20:22:17Z")
> [@Saint\_Cad](#):
>
> I thought TtC involved some sort of real damage like destruction or reduction of value or denial of service like if someine steals my car I can sue them for rental cost. I didn’t think it applied if no damage was done (is that the same as Bricker’s de minimus argument?)
Yes, that is the point I was making. And the point Alito was making in Footnote 2.
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### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [January 23, 2012, 8:43pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/44 "2012-01-23T20:43:42Z")
> [@Bricker](#):
>
> Yes, that is the point I was making. And the point Alito was making in Footnote 2.
So according to TtC and Alito, anyone can do anything they want to your car, house or any other possession as long as it doesn’t damage or lower the value of it?
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [January 23, 2012, 8:50pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/45 "2012-01-23T20:50:23Z")
> [@Saint\_Cad](#):
>
> So according to TtC and Alito, anyone can do anything they want to your car, house or any other possession as long as it doesn’t damage or lower the value of it?
No.
But no one violates the Fourth Amendment by “doing something” like that to your car, house, or other possession.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 9:14pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/46 "2012-01-23T21:14:41Z")
> [@Bricker](#):
>
> No.
>
> But no one violates the Fourth Amendment by “doing something” like that to your car, house, or other possession.
Unless they do so for the purposes of gleaning information.
The tort trespass to chattels has nothing to do with gleaning information and everything to do with actual damage.
Same idea (can’t mess with private property) in two different applications.
If coupled with obtaining info, it’s a search under the 4th amendment. If it’s not and does some damages, it’s an actionable tort.
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### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [January 23, 2012, 9:21pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/47 "2012-01-23T21:21:40Z")
Interesting, and a bit surprising, decision. I must admit, I am amused that in the myriad of other cases that have arisen since Katz (including prior beeper cases), the “trespass = search” argument never got even a mention in the opinions. One would think that if Scalia had thought the “trespass = search”, it would have popped up in his opinions in Alderman, Karo, and others.
I also think Alito does a good job citing a couple cases that directly contradict Scalia’s “trespass = search” decision, by saying: “an actual trespass is neither necessary nor sufficient to establish a constitutional violation.” Karo.
But there is a certain elegance to the decision, and Scalia’s opinion does a good job of rewriting the history of the caselaw to now be “trespass” AND “reasonable expectation of privacy” are both covered by the 4th Amendment. I just kinda wish he had mentioned it sooner.
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### Author:  [@Magiver](https://boards.straightdope.com/u/Magiver)
#### Post date: [January 23, 2012, 9:32pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/48 "2012-01-23T21:32:20Z")
so does this mean that a device can’t be attached without a warrant or that the information gleaned cannot be used as evidence?
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 9:43pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/49 "2012-01-23T21:43:15Z")
> [@Magiver](#):
>
> so does this mean that a device can’t be attached without a warrant or that the information gleaned cannot be used as evidence?
the device may be attached, it appears, (as a practical matter) but no information can be used without a warrant, or probable cause if there are exigent circumstances making a warrant impractical.
technically the police are trespassing, but you’re shit up the creek as far as a legal remedy is concerned. I suppose you could enjoin the police from so doing. You wouldn’t get far in a lawsuit for damages unless they did significant damage attaching the GPS.
If you have an injunction and the police do it again, you could have them held in contempt of court.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 9:47pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/50 "2012-01-23T21:47:22Z")
> [@Hamlet](#):
>
> Interesting, and a bit surprising, decision. I must admit, I am amused that in the myriad of other cases that have arisen since Katz (including prior beeper cases), the “trespass = search” argument never got even a mention in the opinions. One would think that if Scalia had thought the “trespass = search”, it would have popped up in his opinions in Alderman, Karo, and others.
>
> I also think Alito does a good job citing a couple cases that directly contradict Scalia’s “trespass = search” decision, by saying: “an actual trespass is neither necessary nor sufficient to establish a constitutional violation.” Karo.
>
> But there is a certain elegance to the decision, and Scalia’s opinion does a good job of rewriting the history of the caselaw to now be “trespass” AND “reasonable expectation of privacy” are both covered by the 4th Amendment. I just kinda wish he had mentioned it sooner.
They decide nothing more than is necessary on a case by case basis.
it’s still true that trespass alone is insufficient; it must be coupled with the government seeking/obtaining information. It is also true that physical trespass need not be shown to violate the 4th amendment, as there is still the reasonable expectation of privacy analysis to resort to. Karo doesn’t contradict Scalia’s opinion today
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### Author:  [@Punoqllads](https://boards.straightdope.com/u/Punoqllads)
#### Post date: [January 23, 2012, 9:47pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/51 "2012-01-23T21:47:24Z")
> [@erislover](#):
>
> Nope, it wasn’t. Caballes was about detaining. I’ll try and find it later when I get home, I think I have the info saved there.
No, there was no detention in Caballes beyond what is normal for a traffic stop prior to the dog alerting. The K9 unit was close enough to do the sniff test within that window. From Wikipedia:
> [@](#):
>
> n Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court held that the Fourth Amendment is not violated when the use of a drug-sniffing dog during a routine traffic stop does not unreasonably prolong the length of the stop.
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### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [January 23, 2012, 9:48pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/52 "2012-01-23T21:48:14Z")
> [@Magiver](#):
>
> so does this mean that a device can’t be attached without a warrant or that the information gleaned cannot be used as evidence?
Both?
The majority opinion holds that attaching the device is a search and, since there was no warrant (or more precisely the warrant had expired), it was unreasonable and a violation of the 4th Amendment. It doesn’t deal with the issue of the information being used, in fact, it specifically declines to deal with that.
The concurrence goes further and would hold that the information gleaned IN THIS CASE, is a violation of the guy’s reasonable expectation of privacy and thus a violation of the 4th Amendment. The concurrence doesn’t set a time period when the information gathered went from constitutional to unconstitutional though.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 9:51pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/53 "2012-01-23T21:51:46Z")
> [@](#):
>
> “‘[O]ur law holds the property of every man so sacred,that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, _ **though he does no damage at all** _; if he will tread upon his neighbour’s ground, he must justify it by law.’ Entick, supra, at 817."
(emphasis mine)
Lord Camden’s opinion today is upheld by nine supreme court justices. \* Jones\*, pg 6.
De minimis actual damage is NOT a 4th amendment rationale.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 9:56pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/54 "2012-01-23T21:56:51Z")
> [@Hamlet](#):
>
> Both?
>
> The majority opinion holds that attaching the device is a search and, since there was no warrant (or more precisely the warrant had expired), it was unreasonable and a violation of the 4th Amendment. It doesn’t deal with the issue of the information being used, in fact, it specifically declines to deal with that.
That’s wrong a number of ways. it’s the trespass coupled with gleaning information that is at the heart of Scalia’s reasoning. Trespass alone is not necessary and insufficient to predicate a 4th amendment violation.
THE ENTIRE CASE is over the issue of whether or not the trial court could USE the GPS info to sustain a conviction against Jones.
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### Author:  [@Terr](https://boards.straightdope.com/u/Terr)
#### Post date: [January 23, 2012, 9:58pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/55 "2012-01-23T21:58:06Z")
> [@Ravenman](#):
>
> 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.
But the question is a technical one, and not a “principle” one. If the police found another technological way of tracking the vehicle (let’s say by a satellite or a drone or a balloon), I don’t see how the SC decision in this case would prevent such tracking. I also don’t see how SC could forbid such tracking. I get that the “mosaic” thing would, supposedly, be relevant but it seems very contrived.
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### Author:  [@erislover](https://boards.straightdope.com/u/erislover)
#### Post date: [January 23, 2012, 10:01pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/56 "2012-01-23T22:01:27Z")
**Punoqllads** , thanks, but what I meant was the ruling wasn’t about trained dogs being able to (or unable to) violate the fourth amendment, so I don’t think it was Caballes. It either was a case about drug dogs in an airport, or bomb sniffing dogs somewhere else. As I recall a great deal of the argument involved research on the efficacy of trained dogs in the matter and so my recollection of the facts of the actual case is tainted by this supplemental material which was very general. Sorry for the confusion.
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### Author:  [@Magiver](https://boards.straightdope.com/u/Magiver)
#### Post date: [January 23, 2012, 10:13pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/57 "2012-01-23T22:13:37Z")
> [@David42](#):
>
> the device may be attached, it appears, (as a practical matter) but no information can be used without a warrant, or probable cause if there are exigent circumstances making a warrant impractical.
>
> technically the police are trespassing, but you’re shit up the creek as far as a legal remedy is concerned. I suppose you could enjoin the police from so doing. You wouldn’t get far in a lawsuit for damages unless they did significant damage attaching the GPS.
>
> If you have an injunction and the police do it again, you could have them held in contempt of court.
so basically law enforcement (and private investigators) can still snoop around.
In the case of the police, they can use the device to build a case and track individuals to known locations of previous criminal activity.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 10:19pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/58 "2012-01-23T22:19:05Z")
> [@Magiver](#):
>
> so basically law enforcement (and private investigators) can still snoop around.
>
> In the case of the police, they can use the device to build a case and track individuals to known locations of previous criminal activity.
Yes I think that is a correct statement of the current state of the law.
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### Author:  [@elucidator](https://boards.straightdope.com/u/elucidator)
#### Post date: [January 23, 2012, 10:28pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/59 "2012-01-23T22:28:11Z")
Perhaps they can even monitor message boards? Not that it would give me pause, as I have total confidence in and respect for our nations law enforcement apparatus!
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### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [January 23, 2012, 10:31pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/60 "2012-01-23T22:31:40Z")
> [@David42](#):
>
> That’s wrong a number of ways. it’s the trespass coupled with gleaning information that is at the heart of Scalia’s reasoning.
No, it’s trespass with “an attempt to find something or to obtain information”. You know, if we’re going to be all nitpicky.
> [@David42](#):
>
> THE ENTIRE CASE is over the issue of whether or not the trial court could USE the GPS info to sustain a conviction against Jones.
_sigh_ The majority opinion doesn’t deal with the issue of the use of the information if it had been obtained without the “trespass”. The concurrence does. I took Magiver’s question to be about the difference between the trespass part of the majority opinion, and the potential use of the information without the trespass of the concurrence.
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