I was Wrong About the GPS, but ...

On review, I discover you’re right on the main point. I was relying on a press report I read, discovered this thread late last night and didn’t have time to read the actual opinions. The press report I read asserted Sotomayor had joined Alito’s concurrence. This isn’t quite correct. Rather, her separate concurrence can only be read as strongly sympathetic to the mosaic privacy argument (slip op. at 17). But, she’s clear that she believed the case could be resolved on trespass grounds and that the Katz-based privacy ground should be reserved for future decision (id. at 20). For that matter, the majority opinion also leaves the question open (id. at 13), albeit without the strongly sympathetic language.

All that said, sure, there could be two majority opinions. If the press report I read had been right, that’s what we would have here. But it isn’t. Not quite. Apologies to Bricker.

Nah, just messing with you Bricker, to rub it in.

Note I didn’t make an actual demand to pay up, just recounted your offer and speculated…

of course it wouldn’t get your goat if I’d pointed out before that I didn’t accept it.

I agree after another review. I had glossed over Sotomayer’s last paragraph which reduces her mosaic support to dicta, didn’t think it through. This was a five-four split and not a tie.

But if we were to apply Bricker’s nonsense in the parent thread, judge by his measure, so to speak, we can count dicta as “the state of the law.”

I am still confident that the supreme court would adopt the mosaic theory in a case absent any physical trespass. I am confident that I could convince most state supreme courts to adopt it, absent physical tresspass, on the basis on the four who concurred but did not agree with trespass plus Sotomayer.

Ironically Bricker argued against the trespass theory; had Sotomayer agreed with Bricker there, then the result would have been 5-4 in favor of mosaic theory.

So Bricker is right, technically, the Supremes did not adopt mosaic theory; but only by the hairs of his chinny chin chin.

Still Bricker was wrong on his theory that de minimis actual damage will cure constitutional infirmity of such a trespass. The majority believes that attaching the GPS usurps the authority over the vehicle and the fact there is little or no damage doesn’t change it.

Something that could go easily overlooked; It was me who said “Trespass ALONE is neither necessary nor sufficient to establish a fourth amendment violation,” which is what the Supreme Court majority said, modifying “Trespass is neither necessary nor sufficient…” as Katz states.

Overall the Supreme Court seems to support more of the statements I made than Bricker.

And since Bricker’s bet was merely whether or not the S. Ct. would affirm the D.C. appeals court or not, he’d have LOST if I had taken the bet.

If I’m reading this correctly, this is one of those times where the Chief Justice’s (to be pedantic, the senior Justice of the majority) power to decide who writes the opinion was pretty powerful. It was 9-0 that the case could be thrown out on tresspass but only 4-5 that it could be thrown out on mosaic, or at the very least 4 Justices that didn’t want to deal with it. So the Chief Justice who doesn’t want the mosaic theory discussed picks someone that will strictly deal with the tresspass issue. What if Roberts wanted the mosaic theory part of case law? He would have picked someone like Alito to write the majority opinion.

Yes.

It galls me, but I really think I was correctly reading Katz’s statement about people and not places. The Court decided to breathe new life into the physical trespass, an outcome I sneered at and you championed.

No getting around it. You were correct.

Sometimes protecting people is best done by protecting places.

Scalia writes that it was never abandoned. That’s why it is so important to give effect to each and every word of a supreme court opinion, even the most subtle nuances.

Perhaps on some other occasion we can go at it again but frankly I agree with most of your legal comments.

You’re making the same mistake I did earlier. The four Justices joining Alito’s opinion agree in the result only. They would not uphold a trespass theory but do uphold the mosaic theory. If Sotomayer hadn’t felt the trespass to be the more narrow answer which made the mosaic unnecessary, then I believe she’d have gone with Mosaic and THEN we’d have 5-4 in favor of mosaic.

Earlier I’d failed to put any weight on Sotomayer’s last paragraph which rendered her 3 or 4 pages on the Mosaic theory mere dicta with no force of law.

Had Roberts agreed with the Mosaic theory and rejected trespass the decision would be 6-3 in favor of mosaic, assuming the other justices all keep their current opinions.

I should have said “It would be interesting to see how it would have played out if sotomayer had** JOINED **in both rationales, I wonder how you decide who’s the majority in that instance.”

So would you agree that despite the 9-0 ruling, this was a case where there was considerable power chosing who wrote the opinion viz. making case law, moreso than on most cases.

No. It was a 5-4 ruling regarding the rationale though 9-0 in result, so I do not in any way suspect the chief Justice of playing favorites with which theory became the controlling law. The most senior judge of a majority decides who writes an opinion (with the chief justice being most senior regardless of time on the court).

Had the mosaic been majority, and Roberts still supported trespass, he wouldn’t have had any power to influence who wrote the opinion.

I have naught but speculation for what happens in a 5-5 tie like I mistakenly envisioned but I have been thinking the voting conventions prevent the tie.

Saint Cad, I don’t disagree with David42’s analysis, but I’d answer your question a little differently. The important thing to know is that there’s a strong preference on the Supreme Court for deciding cases on narrow grounds. The question answered by the majority, then, isn’t trespass vs. expectation of privacy. On the contrary, the majority takes pains not to reject the latter. Having concluded trespass is an adequate basis for the judgment (reversing the conviction), the majority did not reach and did not decide the mosaic privacy argument. As Sotomayor says in the last paragraph of her concurrence (slip op. at p.20), “Resolution of these difficult [privacy] questions in this case is unnecessary, however, because the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision. I therefore join the majority’s opinion.” When a case without trespass is presented, we have good reason to believe at least five justices on the current Court will adopt the D.C. Circuit’s rationale. But that case could come out anywhere from 5-4 to 9-0, subject to changes of opinion and changes in the membership of the Court. For purposes of this case, though, Roberts did nothing improper. Having assembled a majority for the narrower trespass ground, that’s pretty much how the case had to be decided.

Nor do I disagree with yours, PBear42.

The problem with conversion is that it requires the tortfeasor to intend to PERMANENTLY dispossess you of the chattel. I don’t think that applies here.

Of course not. Implicit in any rental contact is that the movements of the car are not being reported and monitored by the government.

If Avis, for example, offered the “B Class” of car that was tracked and monitored by the government, you can damn well bet that such a car would rent for a lower value that the regular non-tracked car because a significant, non-zero number of people would be willing to pay more for a car that isn’t tracked so they can do illegal things, go to adult bookstores, flip the middle finger at the government, or hide from their spouse.

The difference in market value between those two types of cars is what the Defendant in this case was deprived of for 30 days. Those are actual damages.

In my fantasyland of unlimited judicial power in my hands I’d change that around slightly. If the government puts your property to use against you in criminal situations that can get you life in prison I’d consider it a rather permanent situation.

Agreed. If I had power in the Avis corporation I’d not even offer the snitch car.

I’d have a commercial of me ripping the damn GPS out. I hate this kind of shit.

Bricker, there’s one last comment I really wanna make regarding this area of jurisprudence.

We both were dissatisfied with the previous “current state of the law.” We both hoped for a new direction, and we got it. We had our different reasons.

I don’t know if you drink, but I have a glass of my own blueberry wine that I raise in toast.

We made fun of each other, but no hard feelings here.

Oddly I find myself liking Sotomayer like I wouldn’t have thought.

I agree you correctly read Katz. What you didn’t do is correctly apply all the other cases that didn’t overrule. You just can’t take one quote alone, ever, and most especially pay attention when they say, “this right here is ok, but if it gets to this…”

Alright. Last post in this thread unless someone really says something new that’s interesting…

Here is a case you might find interesting. I have a lot of case names in my head, and one was the Gooch case. Did Gooch have an expectation of privacy in his Tent?

Citing Katz and that the 4th AM “protects people not places”.

Yes, I think he had a reasonable expectation of privacy in his tent. I agree with the majority. The dissent gave me pause on the question of whether any relevant facts were correct, but I find the issue of whether the police knew Gooch was asleep or not to be irrelevant.

sigh

I would like to admit that I now agree with Simplicio. It’s not here yet, but Carpenter suggests it’s coming soon.

And I see I missed this kind invitation six years ago.

Single-malt scotch, six year late but no less heartfelt. Cheers.