# Oh, good! A New Constitutional Theory of Privacy!
**URL:** https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942
**Category:** Great Debates
**Created:** [August 11, 2010, 4:06pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942 "2010-08-11T16:06:12Z")
**Posts on this page:** 20
**Page:** 15
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 18, 2011, 2:44pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/281 "2011-07-18T14:44:02Z")
> [@Bricker](#):
>
> Heh heh heh.
>
> Hilarious. Of course, you’re the one _claiming_ that _Garcia_ ignores _Katz_. The _Garcia_ court didn’t think so, and in fact they discuss Katz in their opinion.
>
> Let’s put it another way: I’ll bet you $200, loser pays the winner’s charity, or $100, loser pays the winner directly, that the Supreme Court will overrule the DC Circuit in _Jones_.
>
> That will be, when it happens, CURRENT Supreme Court precedent.
>
> Now how strongly do you like your argument?
Let me correct that to _Garcia_ ignores relevant portions of _Katz_. There is no discussion of the idea that some actions in public show there is an expectation of privacy.
I think it would be illegal gambling to take you up on your offer. If we hadn’t waived the fourth amendment by talking about it in public, perhaps I’d have taken you up on it.
So far as I know, predicting the future is not a part of valid legal analysis.
In my opinion, since the supreme court has specifically left open the question for this type of activity, there is a presumption that they do not like it. When it was raised before, they could have said it has no merit instead, closing the door instead of the invitation.
There is A LOT you’re not considering.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 18, 2011, 2:54pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/282 "2011-07-18T14:54:06Z")
> [@David42](#):
>
> In my opinion, since the supreme court has specifically left open the question for this type of activity, there is a presumption that they do not like it. When it was raised before, they could have said it has no merit instead, closing the door instead of the invitation.
>
> There is A LOT you’re not considering.
They took it because there’s a circuit split between DC and every other federal circuit. If they did not take it, the law in DC would be that there is a mosaic right of privacy, and the law in the rest of the country would be that there isn’t.
I’ll bookmark the thread, post here when they overturn Jones, and see what you have to say then.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 18, 2011, 4:05pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/283 "2011-07-18T16:05:28Z")
> [@Bricker](#):
>
> They took it because there’s a circuit split between DC and every other federal circuit. If they did not take it, the law in DC would be that there is a mosaic right of privacy, and the law in the rest of the country would be that there isn’t.
>
> I’ll bookmark the thread, post here when they overturn Jones, and see what you have to say then.
I’m not talking about granting certiorari for Jones. I’m talking about…_Knotts_ I think it was where they invited the question.
You haven’t explained why my reasoning that _Garcia_ is wrong, just a blanket statement of faith that it is correct. In a nutshell, _Katz_ claims that seeking to conceal your activities in public can show a reasonable expectation of privacy. _Garcia_ has no mention of that principle, despite facts being present that demand, if not the opposite decision, at least discussion. Instead the Garcia court-cherry picked Katz for favorable law to the outcome and ignored _Katz_ for any unfavorable law, which does exist. _Garcia_ also reserved the question, implying the decision might be different, of extended/mass surveillance which _Garcia_ is not about. This you also ignore.
You haven’t addressed my argument that _Oliver_ and _Dunn_ show that _Pinedo-Moreno_ is in error. These cases stand for the principle that the curtilage of a home is covered by the fourth amendment. The Pinedo-Moreno court ignores that in favor of confusion over plain view. It is certainly true that what a man purposely or knowingly exposes to the VIEW of the public while in his home is not protected by the fourth amendment. But being able to see from the street evidence of crime is not the same thing as permission to fiddle around with the curtilage of the home. Again your only argument is sweeping confidence in the decision of _Pinedo-Morales_. And again, Pinedo Morales does not reach to any question beyond a one-time following, and both it and Garcia are distinguished thereby.
You are exhibiting a very poor application of _stare decisis_.
And now you are reduced to betting and speculating that the change of the political makeup (well, that’s what I am figuring is the only real thing you could be hoping on, since you’re not applying _stare decisis_ very well).
I wouldn’t take the chance of embarrassing myself without showing better reasoning. Bluster is about all you’ve got here, not thoughtful reasoning of each issue.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 18, 2011, 4:59pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/284 "2011-07-18T16:59:23Z")
> [@David42](#):
>
> I wouldn’t take the chance of embarrassing myself without showing better reasoning. Bluster is about all you’ve got here, not thoughtful reasoning of each issue.
Well, **david42** , I tried thoughtful reasoning on the last page, and it didn’t seem to make a dent in your armor.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 18, 2011, 6:12pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/285 "2011-07-18T18:12:26Z")
> [@Bricker](#):
>
> Well, **david42** , I tried thoughtful reasoning on the last page, and it didn’t seem to make a dent in your armor.
Why should it when your arguments ignore Supreme Court precedent?
Address my arguments against _Garcia_ and _Pinedo-Morales_. Something more than “They seem to think you’re wrong.”
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 18, 2011, 6:13pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/286 "2011-07-18T18:13:44Z")
> [@David42](#):
>
> “Furthermore, the fourth amendment does not overlook de minimis intrusions.”
>
> U.S. v. Bailey 628 F2d 938 (1980).
>
> I have also uncovered several other reasons the D.C. court is right, but it will be tomorrow before I post them.
And of course this.
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### Author:  [@hogarth](https://boards.straightdope.com/u/hogarth)
#### Post date: [July 18, 2011, 7:03pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/287 "2011-07-18T19:03:39Z")
> [@Whack-a-Mole](#):
>
> For #1, if I am getting what **Bricker** is saying, using your phone’s geolocation ability is peachy with no warrant. So, in essence, you are granting the police the ability to track any of us on a whim (at least any of us with a phone with that capability which is pretty common now and becoming more common). You cannot have an expectation of privacy with regard to where you are. No warrant necessary. If the police want to track you on a whim they can do so.
>
> I am frankly surprised that **Bricker** thinks this is fine.
I don’t know if he thinks it’s “fine”, but he’s saying that it’s not unconstitutional.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 18, 2011, 7:23pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/288 "2011-07-18T19:23:14Z")
> [@David42](#):
>
> And now you are reduced to betting and speculating that the change of the political makeup (well, that’s what I am figuring is the only real thing you could be hoping on, since you’re not applying _stare decisis_ very well) **will save you.**
Emphasized text is to correct my unfinished sentence.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 19, 2011, 2:04pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/289 "2011-07-19T14:04:14Z")
Some have expressed a lack of understanding of how the fourth amendment guarantees a right to privacy. I do not nor have ever had such a difficulty. It seems obvious to me that privacy is behind a need to guarantee that a person shall be secure in their homes, papers and effects and property.
At any rate, the following illustrates that it is part of the common law that we adopted from England. Since the fourth amendment is written in the language of the common law (as is the entire constitution) we look to the common law to understand any of the constitution’s language. The idea that the supreme court “carved out” some privacy interest that wasn’t there, or was judicially active, or made up some new point of law is ridiculous. It is apparent from Blackstone that it has been our law for some centuries. If anything the question should be, what took them so long to uphold it? Today our lawyers and jurists are so far removed from the common law, they forget it and seem surprised to hear of its principles. Parts of Blackstone’s commentaries were required reading by more than one of my professors.
“One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.” RAKAS et al.v. ILLINOIS. 439 U.S. 128 99 S.Ct. 421 58 L.Ed.2d 387 (1979).
This also explains why using GPS without probable cause or a warrant is no good. (and probable cause only cuts it if exigencies prevent the obtaining of a warrant) The owner of a car has the right to exclude all others from messing with the car. It does not matter how little they do. It does not matter if the car is in public. We all would get upset if we walk out in the morning to get in our car and found someone laying underneath tinkering away. Why? You have the right to exclude others, meaning all others, from fiddling with your property.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 19, 2011, 6:03pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/290 "2011-07-19T18:03:32Z")
> [@David42](#):
>
> It does not matter if the car is in public. We all would get upset if we walk out in the morning to get in our car and found someone laying underneath tinkering away. Why? You have the right to exclude others, meaning all others, from fiddling with your property.
No. In _New York v Class_, an officer reached into a car to move papers that obscured the VIN number.
> [@New York v. Class](#):
>
> The Court has recognized that the physical characteristics of an automobile and its use result in a lessened expectation of privacy therein:
>
> > [@](#):
> >
> > “One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.” Cardwell v. Lewis, 417 U. S. 583, 590 (1974) (plurality opinion).
>
> Moreover, automobiles are justifiably the subject of pervasive regulation by the State. Every operator of a motor vehicle must expect that the State, in enforcing its regulations, will intrude to some extent upon that operator’s privacy:
>
> > [@](#):
> >
> > “Automobiles, unlike homes, are subject to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.” South Dakota v. Opperman, 428 U. S. 364, 368 (1976).
>
> We think it makes no difference that the papers in respondent’s car obscured the VIN from the plain view of the officer. We have recently emphasized that efforts to restrict access to an area do not generate a reasonable expectation of privacy where none would otherwise exist. See Oliver v. United States, supra, at 182-184 (placement of “No Trespassing” signs on secluded property does not create “legitimate privacy interest” in marihuana fields). Here, where the object at issue is an identification number behind the transparent windshield of an automobile driven upon the public roads, we believe that the placement of the obscuring papers was insufficient to create a privacy interest in the VIN. The mere viewing of the formerly obscured VIN was not, therefore, a violation of the Fourth Amendment.
The dispositive question, despite your attempts to make it otherwise, starts and ends with _Katz_: is there a cognizeable, reasonable expectation of privacy in the undercarriage of the car?
No.
That’s it. Thanks for playing. What do we have for the runner-up, Johnny?
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 19, 2011, 6:06pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/291 "2011-07-19T18:06:29Z")
And what pisses me off the most about this is that after the Supreme Court rules, you’ll just shrug and blandly explain that they got it wrong. Nothing will move you from your invincible position.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 19, 2011, 6:55pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/292 "2011-07-19T18:55:34Z")
> [@Bricker](#):
>
> No. In _New York v Class_, an officer reached into a car to move papers that obscured the VIN number.
You see, Bricker, there are these things called exceptions. I have no argument here with the government seeking to identify the car, it is well settled. But you can’t seem to understand differences between things like identifying the vehicle vs. attaching something to it. You can’t seem to understand the difference between looking at something and attaching something to it. And the government’s interest in identifying the car is now permission to attach things to it? How is it you cannot understand the difference? Do you really think the Supreme Court is going to be quoting _Class?_
> [@Bricker](#):
>
> The dispositive question, despite your attempts to make it otherwise, starts and ends with _Katz_: is there a cognizeable, reasonable expectation of privacy in the undercarriage of the car?
>
> No.
Your opinion of the matter you mean. Or did I miss your appointment to the Supreme Court? For what you can see of it, No. For what you can just start fiddling with, Yes.
> [@Bricker](#):
>
> That’s it. Thanks for playing. What do we have for the runner-up, Johnny?
Let’s see…arrogance as a debate technique…hmmm…Nope, not impressive. Save it for the ruling Bricker. In the meantime explaining how an exception in the interest of identifying a car relates to attaching things to it would make more sense. But you’re the one who wants to set himself up for embarrasment by insisting the Supreme Court has to rule as you think. I’m not gonna make a claim as to what they will do.
You’ll note, if you’ll ever start thinking about it, that the Supreme Court hasn’t yet had a case where something got attached to the car. They allowed a beeper case to stand but they specifically talked about how the beeper was added before it was bought by the defendant, therefore, the government did not change anything? Remember that, Bricker?
You’ll do better if you start THINKING instead of getting pissed off that someone is here strongly challenging your crazy ideas that this is all fine and good.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 19, 2011, 7:11pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/293 "2011-07-19T19:11:12Z")
> [@Bricker](#):
>
> And what pisses me off the most about this is that after the Supreme Court rules, you’ll just shrug and blandly explain that they got it wrong. Nothing will move you from your invincible position.
Nor you yours. If I find something that is contradictory to their past precedent, and instead of overruling the just ignore it, I will be sure to point it out.
The difference between us is that I don’t think circuit court opinions are superior to the Supreme Court’s. You on the other hand think a concurrence of one judge in a circuit court case is the binding law.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 19, 2011, 7:15pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/294 "2011-07-19T19:15:01Z")
> [@David42](#):
>
> Your opinion of the matter you mean. Or did I miss your appointment to the Supreme Court? For what you can see of it, No. For what you can just start fiddling with, Yes.
> [@David42](#):
>
> Nor you yours. If I find something that is contradictory to their past precedent, and instead of overruling the just ignore it, I will be sure to point it out.
>
> The difference between us is that I don’t think circuit court opinions are superior to the Supreme Court’s. You on the other hand think a concurrence of one judge in a circuit court case is the binding law.
If the Supreme Court affirms DC, I will loudly and unequivocally admit that I was utterly wrong.
If, as I predict, the Supreme Courts strikes DC and thereby affirms every other circuit, what will you say?
My suspicion is that you will continue to announce that you were right, and that it’s the Supreme Court that was wrong.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 19, 2011, 8:54pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/295 "2011-07-19T20:54:43Z")
> [@Bricker](#):
>
> If the Supreme Court affirms DC, I will loudly and unequivocally admit that I was utterly wrong.
>
> If, as I predict, the Supreme Courts strikes DC and thereby affirms every other circuit, what will you say?
>
> My suspicion is that you will continue to announce that you were right, and that it’s the Supreme Court that was wrong.
That would all depend on what they say.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 19, 2011, 9:02pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/296 "2011-07-19T21:02:40Z")
When the facts are on your side, argue the facts. When the law is on your side, argue the law.
When neither the law nor the facts are on your side, pound the table.
You’re pounding the table, Bricker.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 20, 2011, 4:29am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/297 "2011-07-20T04:29:14Z")
> [@David42](#):
>
> When the facts are on your side, argue the facts. When the law is on your side, argue the law.
>
> When neither the law nor the facts are on your side, pound the table.
>
> You’re pounding the table, Bricker.
Fine. We’ll talk again after the decision. I have an excellent memory.
---
### Author:  [@BigT](https://boards.straightdope.com/u/BigT)
#### Post date: [July 20, 2011, 4:37am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/298 "2011-07-20T04:37:05Z")
> [@Bricker](#):
>
> My suspicion is that you will continue to announce that you were right, and that it’s the Supreme Court that was wrong.
But that’s the point. He has no reason not to do that, because he hasn’t argued based on what the Supreme Court thinks. It’s not his fault that you made the mistake of putting yourself where you can actually lose the argument, while he did not. He has no obligation to take a side that will mean he’ll lose if you wind up being correct.
He has the right to be a textualist or an originalist, and ignore any dicta that disagree with that. You’ve done it yourself, too, when saying you believe a decision was wrong. You have no problem saying the court made what you believed to be the wrong decision.
So his argument right now is pretty simple. You are no longer offering arguments for why your position was accurate, but throwing out _ad hominems_ as if they mean anything. So what if he’s a slimeball for doing the above. How does that relate to whether or not you are correct?
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 20, 2011, 1:48pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/299 "2011-07-20T13:48:55Z")
> [@BigT](#):
>
> But that’s the point. He has no reason not to do that, because he hasn’t argued based on what the Supreme Court thinks. It’s not his fault that you made the mistake of putting yourself where you can actually lose the argument, while he did not. He has no obligation to take a side that will mean he’ll lose if you wind up being correct.
>
> He has the right to be a textualist or an originalist, and ignore any dicta that disagree with that. You’ve done it yourself, too, when saying you believe a decision was wrong. You have no problem saying the court made what you believed to be the wrong decision.
Yes. But I have never disputed that the result is the controlling law. I can certainly say, “I would have decided this differently.” I don’t say, “The Supreme Court’s decision is unconstitutional.”
> [@](#):
>
> So his argument right now is pretty simple. You are no longer offering arguments for why your position was accurate, but throwing out _ad hominems_ as if they mean anything. So what if he’s a slimeball for doing the above. How does that relate to whether or not you are correct?
In my view, his responses when I was producing actual argument were non-responsive.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 21, 2011, 2:05am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/300 "2011-07-21T02:05:56Z")
> [@Bricker](#):
>
> Well, in fairness, I think it was “seedy nightclub owner.”
>
> Kidding!
>
> Here were the facts that supported probable cause:
>
> [ul]
> [li]Text messages sent between Jones and his co-defendant Maynard, examined pursuant to a valid warrant issued in 2005 by US Magistrate Judge Alan Kay, which revealed plans between the two to sell cocaine[/li][li]Reports of three different confidential informants: “… For example, the affidavit states that Confidential Source Number One (“CS-1”) reported having made multi-kilogram purchases of cocaine directly from Jones in the recent past, including at Jones’ Levels nightclub. (citation omitted) CS-1 also provided specific pricing, packaging, distribution, and operating information, and detailed vehicles, individuals, and locations that Jones used for transporting and distributing the narcotics.(citation omitted) CS-2 also described having purchased kilogram quantities of cocaine from Jones (citation omitted), and independently confirmed details provided to investigators by CS-1 concerning pricing, packaging, vehicles used to transport the drugs, and procedures used to distribute drugs. (citation omitted) The August 10th Affidavit further indicates that CS-3 was in communication with, and made privy to the activities of, a suspected cocaine customer of Jones.”[/li][li]Maynard, the manager of the Levels nightclub, was stopped for speeding in North Carolina, while driving a minivan registered to Jones. After an interdiction canine alerted on the right rear area of the minivan, officers searched the vehicle and recovered from a hidden compartment $67,115.00 in U.S. currency, bundled together and contained in plastic bags.[/li][/ul]
Where did you get this information Bricker?
I finally found the text of the D.C. court’s opinion
warning PDF
> **[maynard\_decision.pdf](https://www.eff.org/files/filenode/US_v_Jones/maynard_decision.pdf)**
>
> 309.20 KB
and at best only one of these is as described.
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