# 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:** 4
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 23, 2012, 11:09pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/61 "2012-01-23T23:09:45Z")
> [@Hamlet](#):
>
> _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.
Sorry, I took you to mean this case had nothing to do with the application of the _fruit of the poisonous tree_ doctrine.
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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, 11:20pm UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/62 "2012-01-23T23:20:08Z")
> [@Terr](#):
>
> 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.
The majority opinion acknowledges, in fact, that such tracking might be perfectly legal. It goes along with the “reasonable expectation of privacy” doctrine they’ve applied in the past. The point of the case- at least to SCOTUS- is that the principle is applied in cases where a trespass occurs.
[QUOTE=Tony Scalia]
This Court has to date not deviated from the understanding that mere visual observation does not constitute a search. See Kyllo, 533 U. S., at 31–32. We accordingly held in Knotts that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 460 U. S., at 281. Thus, even assuming that the concurrence is correct to say that “[t]raditional surveillance” of Jones for a 4-week period “would have required a large team of agents, multiple vehicles, and perhaps aerial assistance,” post, at 12, our cases suggest that such visual observation is constitutionally permissible. It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.
[/QUOTE]
The fact that a distinction is technical does not mean it is meaningless. Police officers can generally get a warrant when they need one, and yet the court has always held that the technical distinction between whether they got one or not is important.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 24, 2012, 12:24am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/63 "2012-01-24T00:24:59Z")
Oh, and by the way, Bricker, since we have FIVE justices here buying the Mosaic theory, we know that absent trespass rationale, we’re as good as having settled law…
And since we had a majority trashing your de minimis theory, I’ll be busy writing a poem tonight, just so you can eat your heart out.
MWUHAHAHA
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [January 24, 2012, 12:34am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/64 "2012-01-24T00:34:58Z")
> [@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.
I contend that there ARE actual damages to the car. Diminution of market value due to the fact that the government is tracking the damn thing.
Let’s assume that a 2012 Cadillac Escalade is $60,000 (made up, probably way off) brand new and the feds never know where you go unless they see you.
How much is a 2012 Cadillac Escalade equipped with a GPS tracker with the feds watching you? Substantially less, no?
You may argue that once the tracker is removed it returns to its original value, but why should there be an assumption that such a thing will be done unless and until it happens? Plus, even were it removed, there is very much a diminution of value during the time period the car was being tracked.
My point is that there are actual damages that qualify this to be a trespass to chattel. I don’t understand why Alito was so dismissive.
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### Author:  [@erislover](https://boards.straightdope.com/u/erislover)
#### Post date: [January 24, 2012, 12:38am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/65 "2012-01-24T00:38:05Z")
> [@Punoqllads](#):
>
> 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:
I see now that I am home that, indeed, this was the case I was thinking of.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 24, 2012, 12:40am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/66 "2012-01-24T00:40:44Z")
> [@jtgain](#):
>
> I contend that there ARE actual damages to the car. Diminution of market value due to the fact that the government is tracking the damn thing.
>
> Let’s assume that a 2012 Cadillac Escalade is $60,000 (made up, probably way off) brand new and the feds never know where you go unless they see you.
>
> How much is a 2012 Cadillac Escalade equipped with a GPS tracker with the feds watching you? Substantially less, no?
>
> You may argue that once the tracker is removed it returns to its original value, but why should there be an assumption that such a thing will be done unless and until it happens? Plus, even were it removed, there is very much a diminution of value during the time period the car was being tracked.
>
> My point is that there are actual damages that qualify this to be a trespass to chattel. I don’t understand why Alito was so dismissive.
Now there’s another angle. Interesting…
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### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [January 24, 2012, 12:51am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/67 "2012-01-24T00:51:51Z")
> [@jtgain](#):
>
> You may argue that once the tracker is removed it returns to its original value, but why should there be an assumption that such a thing will be done unless and until it happens? Plus, even were it removed, there is very much a diminution of value during the time period the car was being tracked.
I’m curious. How much ACTUAL damage, in dollar amounts, would you ask for in this case? For 30some days, the imaginary value of the car was lowered, but there is no evidence whatsoever the actual value was lowered.
To me, imaginary losses in value should be paid in imaginary dollars. Kinda like “my house was lowered in value for the hour the police were searching my house without a warrant” has not, to my knowledge, ever flown in a court of law.
> [@jtgain](#):
>
> My point is that there are actual damages that qualify this to be a trespass to chattel. I don’t understand why Alito was so dismissive.
Alito wasn’t dismissive of the idea of putting a number value on the trespass to chattel, it didn’t really come up.
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### Author:  [@Simplicio](https://boards.straightdope.com/u/Simplicio)
#### Post date: [January 24, 2012, 12:58am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/68 "2012-01-24T00:58:29Z")
> [@jtgain](#):
>
> I contend that there ARE actual damages to the car. Diminution of market value due to the fact that the government is tracking the damn thing.
The point of the GPS is that its hidden. Its hard to see how something that neither buyer nor seller know about can effect the value of something. And if they do know its there, they can just pull it off.
> [@](#):
>
> You may argue that once the tracker is removed it returns to its original value, but why should there be an assumption that such a thing will be done unless and until it happens?
Why would the Feds want to track the person you sell your car to? Unless that person also happens to be a drug suspect, its hard to see why they would.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [January 24, 2012, 1:07am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/69 "2012-01-24T01:07:55Z")
Maybe diminution in value is not the correct way to look at it. Perhaps loss of use? You may say that it still drove from point A to point B, but I would contend that implicit in ownership of a car, part of the utility is the freedom that it provides to quickly travel between places without knowledge of the government, spouse, boss, etc.
So, one of the major benefits of using a car has been thwarted by the government. Damages? Say the difference in 28 days of rental value of a non-tracked car minus 28 days of rental value of a tracked car?
I mean, there has to be damages here that aren’t de minimus. You think you are using something that you are in fact not. There has to be a diminution of value or loss of use or something there that is recoverable.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [January 24, 2012, 1:11am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/70 "2012-01-24T01:11:05Z")
> [@Hamlet](#):
>
> Kinda like “my house was lowered in value for the hour the police were searching my house without a warrant” has not, to my knowledge, ever flown in a court of law.
That’s still a trespass to land which doesn’t require actual damage like a trespass to chattel. And unlike tracking a car for a month, loss of use of your house for one hour would likely be de minimus. If you had to leave for a week due to an illegal search and had to stay at a hotel, I would think the hotel bill would certainly be valid damages.
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [January 24, 2012, 1:11am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/71 "2012-01-24T01:11:38Z")
> [@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.
[QUOTE=David42]
Not without probable cause. Otherwise you just legalized “driving while black.”
[/QUOTE]
PC is not needed to order a driver out of a car, see Pennsylvania v. Mimms. The same for a passenger, see Maryland v. Wilson. State constitution’s may or may not afford more protection.
> [@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.
> [@David42](#):
>
> 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.
I was speaking of 1983 suits, such are not filed for $1.00, but big money damages. Whether such is awarded or a lesser amount or $1.00, big damages are prayed for in the complaint.
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### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [January 24, 2012, 1:53am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/72 "2012-01-24T01:53:12Z")
Why did this ever need to go beyond plain sight doctrine. AFAICT they only tracked obvious public movements none of this stuff happened behind closed doors or away from the prying eyes of everybody that was on those streets.
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### Author:  [@toofs](https://boards.straightdope.com/u/toofs)
#### Post date: [January 24, 2012, 2:08am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/73 "2012-01-24T02:08:21Z")
> [@Simplicio](#):
>
> The point of the GPS is that its hidden. Its hard to see how something that neither buyer nor seller know about can effect the value of something. And if they do know its there, they can just pull it off.
>
> Why would the Feds want to track the person you sell your car to? Unless that person also happens to be a drug suspect, its hard to see why they would.
DEA did it to [this guy](http://www.wired.com/threatlevel/2011/11/gps-tracker-times-two/all/1) recently.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 24, 2012, 2:20am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/74 "2012-01-24T02:20:03Z")
> [@lawbuff](#):
>
> PC is not needed to order a driver out of a car, see Pennsylvania v. Mimms. The same for a passenger, see Maryland v. Wilson. State constitution’s may or may not afford more protection.
>
> Horseshit. to be blunt, but you must forgive me; you should read this thread’s parent thread wherein I’ve already been 'round this.
>
> [QUOTE=Mimms Court]
> : (syllabus) 1. The order to get out of the car, _ **issued after the respondent was lawfully detained** _, was reasonable and thus permissible under the Fourth Amendment. The State’s proffered justification for such order - the officer’s safety - is both legitimate and weighty, and the intrusion into respondent’s personal liberty occasioned by the order, being at most a mere inconvenience, cannot prevail when balanced against legitimate concerns for the officer’s safety.
Or perhaps I should better explain the precise point I have belabored in the past: _De minimis_ is not a doctrine of 4th amendment law such that an otherwise unreasonable search is not made reasonable by the lack of any substantial damage actually done to the suspect. I’ve also argued this goes for seizures as well, and can also be 5th amendment argument too.
One first has to have a lawful reason, under Mimms, to stop a vehicle. “Black” is not a lawful reason for the stop. If one then finds marijuana in the driver’s pocket, one cannot transform this unconstitutional activity into a constitutional one on the grounds that the driver hasn’t really been damaged.
> [@lawbuff](#):
>
> I was speaking of 1983 suits, such are not filed for $1.00, but big money damages. Whether such is awarded or a lesser amount or $1.00, big damages are prayed for in the complaint.
Well I certainly wouldn’t file one for a dollar. I’m not sure of the point of this, doesn’t everyone agree generally no one dollar suits are filed? Without some other cause of action being pursued as well, of course?
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 24, 2012, 2:31am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/75 "2012-01-24T02:31:41Z")
> [@jtgain](#):
>
> Maybe diminution in value is not the correct way to look at it. Perhaps loss of use? You may say that it still drove from point A to point B, but I would contend that implicit in ownership of a car, part of the utility is the freedom that it provides to quickly travel between places without knowledge of the government, spouse, boss, etc.
>
> So, one of the major benefits of using a car has been thwarted by the government. Damages? Say the difference in 28 days of rental value of a non-tracked car minus 28 days of rental value of a tracked car?
>
> I mean, there has to be damages here that aren’t de minimus. You think you are using something that you are in fact not. There has to be a diminution of value or loss of use or something there that is recoverable.
In my personal opinion, not necessarily that of the courts, I think once the government has converted the use of my property from my use to theirs, without my permission, to gather evidence to use against me, and especially if there’s no probable cause that a judge would buy, they can damn well pay for all of the car and its associated expenses.
Hell I’d make 'em pay for the whole house and the 150 acres it sits on for hanging a bug on a nail.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 24, 2012, 3:03am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/76 "2012-01-24T03:03:43Z")
> [@Simplicio](#):
>
> The point of the GPS is that its hidden. Its hard to see how something that neither buyer nor seller know about can effect the value of something. And if they do know its there, they can just pull it off.
I think the parent thread has a cite for a case where a guy pulled a GPS off and then got charged with destruction of govt property, and if stuff like that goes on, then its not as simple as you think.
> [@Simplicio](#):
>
> Why would the Feds want to track the person you sell your car to? Unless that person also happens to be a drug suspect, its hard to see why they would.
So maybe they don’t have any interest in you per se…
UNTIL a computer alerts for a stop at a known drug house. You might be going next door to aunt Mathilda’s to check on her well being and always have to park a little aways, you know.
After a pattern of three weeks of daily stops, based on their training and experience, there’s a high probability you’re a dope dealer supplying the house (God forbid your cousin Joey goes to the drug house and you called him a couple times) the police obtain a warrant to search your house during the course of which they shoot your wife dead when she jumps up in terror at the Jackbooted ski masks invading her life at 3 a.m.
14 months later they let you out of jail when the legalities are all straightened out and don’t even say, Hey, I’m sorry about your wife.
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### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [January 24, 2012, 4:20am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/77 "2012-01-24T04:20:22Z")
> [@jtgain](#):
>
> Maybe diminution in value is not the correct way to look at it. Perhaps loss of use? You may say that it still drove from point A to point B, but I would contend that implicit in ownership of a car, part of the utility is the freedom that it provides to quickly travel between places without knowledge of the government, spouse, boss, etc.
>
> So, one of the major benefits of using a car has been thwarted by the government. Damages? Say the difference in 28 days of rental value of a non-tracked car minus 28 days of rental value of a tracked car?
Which is? Far as I know, nobody pays a higher rate to rent a car that doesn’t have tracking, let alone tracking for 30 days.
My point was that there are no recognizable ACTUAL damages by placing a GPS on a car for 30 days. Maybe 5 cents for decrease in fuel economy, but nothing a court of law would recognize.
> [@jtgain](#):
>
> I mean, there has to be damages here that aren’t de minimus.
No, there doesn’t. You’re taking the conclusion you want (the existence of monetary damages) and trying to manipulate the facts to fit it that conclusion. That’s not how it works.
> [@jtgain](#):
>
> That’s still a trespass to land which doesn’t require actual damage like a trespass to chattel. And unlike tracking a car for a month, loss of use of your house for one hour would likely be de minimus. If you had to leave for a week due to an illegal search and had to stay at a hotel, I would think the hotel bill would certainly be valid damages.
And if you couldn’t use your car for 30 days, you’d likely have suffered actual damages. But that’s not what happened here. The guy had full use of the car and it wasn’t worse less after the events than before.
There was a trespass, sure. But actual damages? I think that would be a tough sell.
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### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [January 24, 2012, 4:23am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/78 "2012-01-24T04:23:02Z")
> [@David42](#):
>
> In my personal opinion, not necessarily that of the courts, I think once the government has converted the use of my property from my use to theirs, without my permission, to gather evidence to use against me, and especially if there’s no probable cause that a judge would buy, they can damn well pay for all of the car and its associated expenses.
Seriously? I know there is a huge desire for some kind of punitive damages against the police for their egregious violation of the 4th amendment that they didn’t know about until the case was decided, but actual damages? The whole car is now worthless?
I think it’s is pretty clear that’s a personal opinion and not that of the courts.
> [@David42](#):
>
> Hell I’d make 'em pay for the whole house and the 150 acres it sits on for hanging a bug on a nail.
And that’s a really good reason you should never be a judge.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 24, 2012, 4:41am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/79 "2012-01-24T04:41:16Z")
> [@Hamlet](#):
>
> Seriously? I know there is a huge desire for some kind of punitive damages against the police for their egregious violation of the 4th amendment that they didn’t know about until the case was decided, but actual damages? The whole car is now worthless?
>
> I think it’s is pretty clear that’s a personal opinion and not that of the courts. And that’s a really good reason you should never be a judge.
Actually it’s the guy who won’t confess his extreme views that you don’t want being a judge. I know that view is extreme and would follow stare decisis instead.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [January 24, 2012, 4:46am UTC](https://boards.straightdope.com/t/i-was-wrong-about-the-gps-but/610402/80 "2012-01-24T04:46:48Z")
> [@Hamlet](#):
>
> Seriously? I know there is a huge desire for some kind of punitive damages against the police for their egregious violation of the 4th amendment that they didn’t know about until the case was decided, but actual damages? The whole car is now worthless?
And worse than that, if they can’t demonstrate probable cause to begin with, I want frikkin chauffeur’s wages for driving their converted property around.
And if I were a judge, I’d guarantee you no cop would tell me about this month long investigation they didn’t have a chance to get a warrant in, and the 4th amendment would be taken seriously rather than seen as some impediment to proper police work.
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