# 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:** 16
### Author:  [@gatorslap](https://boards.straightdope.com/u/gatorslap)
#### Post date: [July 21, 2011, 7:16am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/301 "2011-07-21T07:16:23Z")
After reading a bunch of blathering about privacy, seizure, and de minimis, I’m still not clear on how the police have the authority to tamper with my private property without a warrant, probable cause, or permission. I can accept that they didn’t really seize anything; I can accept the argument of de minimis in terms of the minuscule amount of gas or whatever it is costing me. But I’m not so sure I can accept that my right to property and due process does not extend farther than seizure and just compensation. I believe that my right to property includes the right for it to remain unmolested and in my exclusive control.
What if instead of just a GPS, they plant a device on my car that detects both its location and its speed, and then mail me a ticket for exceeding the speed limit? Would that be allowed too?
In short, is there no limit to what the government can do to my property, as long as they’re not literally searching, nor seizing anything of significant value?
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 21, 2011, 1:15pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/302 "2011-07-21T13:15:30Z")
> [@David42](#):
>
> Where did you get this information Bricker?
>
> I finally found the text of the D.C. court’s opinion
>
> warning PDF
> [http://www.eff.org/files/filenode/US\_v\_Jones/maynard\_decision.pdf](http://www.eff.org/files/filenode/US_v_Jones/maynard_decision.pdf)
>
> and at best only one of these is as described.
From the lower court’s opinion, which lays out the facts in greater detail that the appellate court’s did.
_U.S. v. Jones_, 451 F.Supp.2d 71, Dist. DC, (2006) Memorandum opinion of Judge Ellen Segal Huvelle.
I don’t have a publicly-available link, but there’s the cite.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 21, 2011, 1:38pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/303 "2011-07-21T13:38:17Z")
> [@gatorslap](#):
>
> After reading a bunch of blathering about privacy, seizure, and de minimis, I’m still not clear on how the police have the authority to tamper with my private property without a warrant, probable cause, or permission. I can accept that they didn’t really seize anything; I can accept the argument of de minimis in terms of the minuscule amount of gas or whatever it is costing me. But I’m not so sure I can accept that my right to property and due process does not extend farther than seizure and just compensation. I believe that my right to property includes the right for it to remain unmolested and in my exclusive control.
But it really doesn’t.
If you park your car on the street, someone can come along and put a flyer under your windshield wiper. Technically, this is “trespass to chattels,” but to show damages, you would have to show how the flyer damaged you in some way.
It’s the same basic concept here. The police place the GPS and use it to gain information about where you drive. So there are two questions: (1) does the physical act of placing the GPS damage you in some meaningful way, and (2) does the information from the GPS infringe on your federal right to privacy?
As to the first question: no. Driving around with an eight-ounce extra load under your rear bumper for a month does not damage your car or you in any meaningful physical sense.
As to the second question: no (unless you live in DC). The federal courts have uniformly decided, with DC the only exception, that the information about where you drive is not a matter of privacy, since you expose your car to the public as you drive around anyway. (DC says that this is true for any single trip, but that the sum total, the picture drawn by all your trips together, is private).
But wait, I hear you say. What about that business of trespass to chattels? Doesn’t that mean the government can’t do what they did?
No. Before the decision in US v. Katz, actually, it might have. But Katz laid down a rule that was intended to protect privacy: that the Fourth Amendment protects people, not places or things. Before Katz, the touchstone was whether the government had trespassed onto your private property to eavesdrop on you. In Katz, the government had tapped a payphone, reasoning that since the suspects didn’t own the payphone, they couldn’t complain about their privacy being violated.
But the Supreme Court disagreed, saying that what was really protected was the person, and his reasonable expectation of privacy when he stepped into the phone booth and closed the door. (This was in the days when phone booths had doors that could be shut.)
So now we don’t ask if the police trespassed --we ask if they violated a person’s reasonable expectation of privacy.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 21, 2011, 1:46pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/304 "2011-07-21T13:46:11Z")
> [@David42](#):
>
> I finally found the text of the D.C. court’s opinion
> …
By the way… you “finally found” the opinion on the website of the Electronic Freedom Foundation?
Did you know that federal appellate decisions are all reported in a handy case reporter called (helpfully) the “Federal Reporter?” Specifically, any circuit court case since about 1994 will be found in the “Federal Reporter, Third Series?”
If you’re interested, I can also explain the arcane and mysterious “F.Supp” and “F. Supp. 2d.” It’s quite handy if one is seeking a federal district opinion.
As this is highly secret information, please burn this post after reading it.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 21, 2011, 3:48pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/305 "2011-07-21T15:48:43Z")
> [@Bricker](#):
>
> From the lower court’s opinion, which lays out the facts in greater detail that the appellate court’s did.
>
> _U.S. v. Jones_, 451 F.Supp.2d 71, Dist. DC, (2006) Memorandum opinion of Judge Ellen Segal Huvelle.
>
> I don’t have a publicly-available link, but there’s the cite.
Thx.
I do note that the Appeals Court’s recitiation of the facts was from a harmless error analysis and not a probable cause analysis–of course one concerns facts before trial and the other only facts in trial, so of course they can differ.
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [July 21, 2011, 3:49pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/306 "2011-07-21T15:49:08Z")
Yet more Big Brother but hey…why not? No worries…the State is your friend.
> [@](#):
>
> Civil libertarians are raising the alarm over the state’s plans to create a Big Brother database that could map drivers’ whereabouts with police cruiser-mounted scanners that capture thousands of license plates per hour — storing that information indefinitely where local cops, staties, feds and prosecutors could access it as they choose.
>
> “What kind of a society are we creating here?” asked civil rights lawyer Harvey Silverglate, who along with the ACLU fears police abuse. “There comes a point where the surveillance is so pervasive and total that it’s a misnomer to call a society free any longer.”
>
> SOURCE: [http://www.bostonherald.com/news/regional/view/2011\_0721lawyer\_cop\_scanner\_crosses\_line/](http://www.bostonherald.com/news/regional/view/2011_0721lawyer_cop_scanner_crosses_line/)
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 21, 2011, 4:02pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/307 "2011-07-21T16:02:36Z")
> [@Bricker](#):
>
> By the way… you “finally found” the opinion on the website of the Electronic Freedom Foundation?
>
> Did you know that federal appellate decisions are all reported in a handy case reporter called (helpfully) the “Federal Reporter?” Specifically, any circuit court case since about 1994 will be found in the “Federal Reporter, Third Series?”
>
> If you’re interested, I can also explain the arcane and mysterious “F.Supp” and “F. Supp. 2d.” It’s quite handy if one is seeking a federal district opinion.
>
> As this is highly secret information, please burn this post after reading it.
Not finished with the _ad hominems_, I see?
As for the Federal Reporter, it never comes up in web searches on google or I’d use it. I use several different sources like FindLaw and Cornell Law School for court opinions. The lower the courts get the less likely you’re gonna find it on the web. I suspect you know this as you do not produce a LINK for everyone’s convenience. Given the conspicuous absence of such a link in the O.P. and the fact that you did not explain that searches for U.S. v. Jones are unlikely to come up with it, because the name of the case was actually Maynard up to the Court of Appeals. Makes you look a little like you wanna argue against it without people actually reading it.
I have owned full sets of the Supreme Court reporter, both the U.S. and L.Ed editions, all the federal reporters, the Federal Supplement and the Pacific Reporters as well. My law library included all kinds of other shit as well, digests, (though not necessarily complete) law reviews and of course Shephard’s citator. I of course well know how to use them.
If you get stuck in a criminal, domestic or civil case in your practice I’d be glad to lend a hand; at least in this thread you’re scaring me if your a defense attorney. But I’m figuring prosecutor or ex-prosecutor.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 21, 2011, 5:27pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/308 "2011-07-21T17:27:38Z")
> [@gatorslap](#):
>
> After reading a bunch of blathering about privacy, seizure, and de minimis, I’m still not clear on how the police have the authority to tamper with my private property without a warrant, probable cause, or permission. I can accept that they didn’t really seize anything; I can accept the argument of de minimis in terms of the minuscule amount of gas or whatever it is costing me. But I’m not so sure I can accept that my right to property and due process does not extend farther than seizure and just compensation. I believe that my right to property includes the right for it to remain unmolested and in my exclusive control.
>
> What if instead of just a GPS, they plant a device on my car that detects both its location and its speed, and then mail me a ticket for exceeding the speed limit? Would that be allowed too?
>
> In short, is there no limit to what the government can do to my property, as long as they’re not literally searching, nor seizing anything of significant value?
“The Fourth and Fourteenth Amendments are implicated in this case because stopping an automobile and detaining its occupants constitute a “seizure” within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief. United States v. Martinez-Fuerte, 428 U.S. 543, 556 -558 (1976)”
De minimis is not some doctrine where the government can do whatever it wants without any justifiable reason becuase its harm is too small to quantify.
It does, however, get used in balancing tests **AFTER** it has been determined that there was a search or seizure, to determine whether or not the intrusion is reasonable in light of government interests involved. That’s just the nature of weighing one thing against another. Bricker’s best support for his idea comes from a concurring opinion which of course has no force of law under stare decisis. He also fails to show us how his position deals with racial profiling in the notorious instance of driving while black (DWB). Under Bricker’s hypotheses, DWB’s apparently are ok since the intrusion is minimal and the cop does not need a valid reason to pull them over.
“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
> [@](#):
>
> Bricker notes: “_If you park your car on the street, someone can come along and put a flyer under your windshield wiper. Technically, this is “trespass to chattels,” but to show damages, you would have to show how the flyer damaged you in some way_.”
And this is one of the proper applications of the _de minimis_ doctrine, which is a doctrine primarily of civil procedure—if you can claim no more than minimal damages, your case will be dismissed under _de minimis_. Nevertheless, Maynard/Jones does not deal with a lawsuit filed by either of them against the government.
“The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard [440 U.S. 648, 654] of “reasonableness” 6 upon the exercise of discretion by government officials, including law enforcement agents, in order “`to safeguard the privacy and security of individuals against arbitrary invasions. . . .'” Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978)”
Arbitrary means without a justifiable reason.
“―legitimation of expectations of privacy must have a source outside the Fourth
Amendment, such as ―understandings that are recognized or permitted by society.” United States v. Jacobsen, 466 U.S. 109, 123 n.22 (1984) (quoting Rakas, 439 U.S. at 143 n.12).
In California v. Ciraolo, 476 U.S. 207 (1986) the court’s discussion all centered around whether “exposed to the public” includes aerial viewing, and it was held that marijuana in the back yard was exposed to the public because ordinary travelers could have seen it. In short, if the public can do it, then the police can do it without a warrant.
If we notice someone has followed us for a month keeping a record of everywhere we go, we do not say, “hey, no big deal.” We confront them, call the police, talk about stalking, or at the very least go home and do not venture out until we are sure they are gone. Imagine a woman whose month long driving habits start with a trip to the Ob/Gyn and then reveals three trips to planned parenthood and three trips to a maternity store and two trips to a therapist as well as another trip to the Ob/Gyn. These facts infer a pregnant woman who is conflicted over whether to carry the child to term or get an abortion. She may well feel bad and confused. She still smiles and waves when she sees Mrs. Smith on the corner tending her roses, even though Mrs. Smith sees her drive into the Planned Parenthood parking lot. But if this woman finds out someone has been tracking her every move, and knows all about the therapist and shopping for baby goods as well as the planned parenthood visits, she is gonna feel violated, and we all know it. If it’s the baby’s daddy and she is having trouble with him, he’s probably going to go to jail. Our society definitely does not accept this kind of “exposure to the public” as reasonable. It’s prying into private affairs is what it is. If the police are going to be able to lawfully obtain this kind of information they just plain need a warrant.
There is a big difference between the one time point A to point B tracking the Supreme Court has approved and the 24/7 monitoring Bricker can only wish was our law.
‘“As the Supreme Court said in Dow Chemical Co. v. United States, ―Fourth
Amendment cases must be decided on the facts of each case, not by extravagant generalizations.” See Nat’l Fed’n of Fed. Employees v. Weinberger, 818 F.2d 935, 942 (D.C. Cir. 1987) (―Few legal issues in the Fourth Amendment domain are so pure that they do not turn on any facts or circumstances peculiar to the case).’
Yet Bricker bets the supreme court is gonna reverse Jones, and he stands on cases which either do not have sufficient facts to parallel Jones (Garcia, Marquez, McIver) or though they have the facts the issue is not raised (Pinedo-Moreno). D.C. is the first Federal Appellate court to get a case quite like Jones, though State appellate courts have gotten them, and tend to decide them as Jones was decided.
‘While it is true that individuals have a diminished expectation of privacy within
their automobiles, they do “not lose all reasonable expectation of privacy simply because they are subject to government regulation . . . Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed.” Delaware v. Prouse 440 U.S. 648 (1979).’
‘Delaware v. Prouse, 440 U.S. 648, 662-63 (1979); See Arizona v. Gant, 129 S. Ct. 1710, 1720 (2009)(“Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home . . . the former interest is nevertheless important and deserving of constitutional protection.”).’
“Under the automobile exception to the warrant requirement, it is constitutionally acceptable for the police to search a car without a warrant as long as they have probable cause. Chambers v. Maroney, 399 U.S. 42, 48–49.”
Isn’t it funny that the automobile exception, which was created because of the problem that cars, unlike homes, can be driven away to locations unknown, can now be used to justify a technique where the driver can now never go someplace the police don’t know where he is?
See also c Renee McDonald-Hutchins, Tied Up in Knotts? GPS Technology
and the Fourth Amendment, 419 UCLA L. Rev. 409, 457 (2007) “(―According to the [Supreme] Court, its decision [in Knotts] should not be read to sanction twenty-four hour
surveillance of any citizen of this country.” (quoting Knotts, 460 U.S. at 284).
(I suppose, however, that if one can be thick as a brick, one could also be thicker as a bricker.)
‘“As the Supreme Court said in Dow Chemical Co. v. United States, ―Fourth
Amendment cases must be decided on the facts of each case, not by extravagant generalizations.” See Nat’l Fed’n of Fed. Employees v. Weinberger, 818 F.2d 935, 942 (D.C. Cir. 1987) (―Few legal issues in the Fourth Amendment domain are so pure that they do not turn on any facts or circumstances peculiar to the case).’
_ **No expectation of privacy ever when you get in a vehicle, no matter how long** _ is an overgeneralized sweeping and unauthorized (by the S. Ct.) application of Knotts, and shows complete disregard for differences between the facts of the various cases discussed.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 21, 2011, 5:47pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/309 "2011-07-21T17:47:35Z")
> [@David42](#):
>
> Not finished with the _ad hominems_, I see?
>
> As for the Federal Reporter, it never comes up in web searches on google or I’d use it. I use several different sources like FindLaw and Cornell Law School for court opinions. The lower the courts get the less likely you’re gonna find it on the web. I suspect you know this as you do not produce a LINK for everyone’s convenience.
I don’t produce a link for everyone’s convenience because I use Westlaw, which makes it (a) easy for me to find what I need, but (b) a problem to provide a link for others, because it’s a paid, subscription service.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 21, 2011, 6:00pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/310 "2011-07-21T18:00:51Z")
> [@Bricker](#):
>
> I don’t produce a link for everyone’s convenience because I use Westlaw, which makes it (a) easy for me to find what I need, but (b) a problem to provide a link for others, because it’s a paid, subscription service.
Reasonable enough. Since I am not currently making my living as a lawyer or paralegal I don’t subscribe.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 21, 2011, 6:17pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/311 "2011-07-21T18:17:51Z")
> [@David42](#):
>
> In California v. Ciraolo, 476 U.S. 207 (1986) the court’s discussion all centered around whether “exposed to the public” includes aerial viewing, and it was held that marijuana in the back yard was exposed to the public because ordinary travelers could have seen it. In short, if the public can do it, then the police can do it without a warrant.
>
> If we notice someone has followed us for a month keeping a record of everywhere we go, we do not say, “hey, no big deal.” We confront them, call the police, talk about stalking, or at the very least go home and do not venture out until we are sure they are gone. Imagine a woman whose month long driving habits start with a trip to the Ob/Gyn and then reveals three trips to planned parenthood and three trips to a maternity store and two trips to a therapist as well as another trip to the Ob/Gyn. These facts infer a pregnant woman who is conflicted over whether to carry the child to term or get an abortion. She may well feel bad and confused. She still smiles and waves when she sees Mrs. Smith on the corner tending her roses, even though Mrs. Smith sees her drive into the Planned Parenthood parking lot. But if this woman finds out someone has been tracking her every move, and knows all about the therapist and shopping for baby goods as well as the planned parenthood visits, she is gonna feel violated, and we all know it. If it’s the baby’s daddy and she is having trouble with him, he’s probably going to go to jail. Our society definitely does not accept this kind of “exposure to the public” as reasonable. It’s prying into private affairs is what it is. If the police are going to be able to lawfully obtain this kind of information they just plain need a warrant.
>
> There is a big difference between the one time point A to point B tracking the Supreme Court has approved and the 24/7 monitoring Bricker can only wish was our law.
Well, this is precisely the reasoning that DC adopted. I suppose the Supreme Court might agree.
But it’s a change from the existing state of the law. Right now, the law in every federal circuit EXCEPT DC that has considered the issue has rejected the idea:
First Circuit: pre-GPS beeper case _US v. Moore_, 562 F.2d 106 (1977):
> [@Moore court](#):
>
> The basic question is simply whether the use of beepers so implanted to monitor the movements of the U-Haul van and the 1966 Mustang from Doe & Ingalls in Medford to the residence in Brewster violated defendants’ reasonable expectations of privacy. Defendants argue, that they had a reasonable expectation that their vehicle’s movement would not be continuously monitored and tracked by use of a transmitter implanted without their knowledge or consent on or in the vehicle in which they were riding.
>
> But while this may be so, we agree with the Government that the privacy expectations of one operating a vehicle on public roads are considerably less than those of one speaking on the telephone from a closed booth, as in Katz. In Katz the Court spoke of the “vital role that the public telephone has come to play in private communication”, and expressed the urgency of extending the fourth amendment to oral statements meant to be kept private. 389 U.S. at 352-53, 88 S.Ct. at 512. But the Court also pointed out that a person had no reasonable expectation of privacy in that which is knowingly exposed to others. Id. at 351, 88 S.Ct. 507. Defendants here had no reason to believe that their movements on the public highway would remain private — that their route from Medford to Brewster would be their secret. “A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.”
And a GPS case, US v. Sparks, 750 F.Supp.2d 384 (2010):
> [@Sparks court](#):
>
> The Supreme Court has been clear that motor vehicles are entitled to a significantly diminished expectation of privacy because their “function is transportation and [they] seldom serve as one’s residence or as the repository of personal effects.” See Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). More specifically, there is no reasonable expectation of privacy in the exterior or undercarriage of a vehicle. See New York v. Class, 475 U.S. 106, 114, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (“The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a `search.'”); United States v. Rascon-Ortiz, 994 F.2d 749, 754 (10th Cir. 1993) (“The undercarriage is part of the car’s exterior, and as such, is not afforded a reasonable expectation of privacy.”).
>
> The minimal physical intrusion associated with affixing a GPS device will not, standing alone, create a Fourth Amendment violation.
> .
> .
> .
> Sparks argues that, although society may not recognize the privacy interests in single public trips, he does maintain a reasonable expectation of privacy in the aggregate of his travels. The first rationale for this argument is essentially that the whole of one’s movements during the course of surveillance is not actually exposed to the public because the likelihood that anyone will observe all those movements is essentially nil. See United States v. Maynard, 615 F.3d 544, 565-66 (D.C.Cir.2010). The proper inquiry, however, is not what a random stranger would actually or likely do, but rather what he feasibly could. See Smith v. Maryland, 442 U.S. 735, 745, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
>
> Attempting to tie improbability to illegality is inappropriate in light of several Supreme Court Fourth Amendment decisions concerning new technology. See United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (“The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however 392\*392 well justified, that certain facts will not come to the attention of the authorities.”); see also Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 543 (2007) (explaining the various analytical frameworks used by the Supreme Court to decide Fourth Amendment cases). Many citizens would think it unlikely that government agents would rifle through their trash as it sits on the curb, or rent an airplane solely to conduct aerial surveillance of their residence, and yet these acts are firmly outside the reach of the Fourth Amendment.
Second Circuit: US v. Moran, 349 F. Supp. 2d 425 (Dist. New York 2005)
> [@Moran](#):
>
> The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const, amend. IV. However, where there is no legitimate expectation of privacy, there is no search or seizure within the ambit of the Fourth Amendment. United States v. Knotts, 460 U.S. 276, 285, 103 S.Ct. 1081, 1087, 75 L.Ed.2d 55 (1983). There is a diminished expectation of privacy in a vehicle because of its availability to public scrutiny. Id. at 281, 103 S.Ct. at 1085. “A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id.
>
> Here Moran complains of a GPS device attached to his vehicle by law enforcement personnel without a warrant. The GPS device tracked the whereabouts of Moran’s vehicle on July 29 and 30, 2003, upon his return from a one-day trip to Arizona. Law enforcement personnel could have conducted a visual surveillance of the vehicle as it traveled on the public highways. See id. at 282, 103 S.Ct. at 1086. Moran had no expectation of privacy in the whereabouts of his vehicle on a public roadway. Thus, there was no search or seizure and no Fourth Amendment implications in the use of the GPS device.
Third Circuit: pre-GPS beeper case US v. Hossbach, 518 F.Supp. 759 (1980) – doesn’t decide if warrantless beepers are OK, but notes that all other courts have done so:
> [@Hossbach Court](#):
>
> As to whether a bumper beeper requires a warrant, i. e., whether its use without prior judicial authorization violates the fourth amendment, most cases have held that no warrant is necessary. United States v. Hufford, 539 F.2d 32 (9th Cir. 1976); United States v. Clayborne, 584 F.2d 346, 351 (10th Cir. 1978); United States v. Bruneau, 594 F.2d 1190 (8th Cir. 1979); United States v. Pretzinger, 542 F.2d 517 (9th Cir. 1976). Contra, United States v. Holmes, 521 F.2d 859 (5th Cir. 1975).
Fourth Circuit: United States v. Berry, 300 F.Supp. 2d 366 (D. Md. 2004), declines to decide the issue:
> [@Berry Court](#):
>
> Beepers placed on cars merely help the police stay in contact with the vehicle that they are actively “tailing.” A car driving on the street is in plain view, and the police may follow it without a search warrant or other court order. Binoculars, spotter airplanes, and beepers merely assist the police in keeping the car in view. The Supreme Court held that the police may, therefore, install a beeper without first seeking a judge’s permission.
>
> The Supreme Court’s analysis may or may not cover a GPS, which, unlike a beeper, is a substitute for police surveillance. Using signals from satellites, the GPS on Hill’s Mercedes kept track of the car’s location. That device did not broadcast this information in “real time.” Instead, the device stored the data in its memory. The police could download the data only by bringing their receiver close to Hill’s Mercedes, presumably when the car was parked. The device, therefore, told the authorities where Hill’s car had traveled. The GPS neither assisted the police in “tailing” Hill’s vehicle nor told them where the car was currently located.
> .
> .
> .
> This Court need not decide whether modern GPS devices effect a search and seizure. In this case, the police obtained a court order permitting the placement of the device on Hill’s Mercedes for sixty days. Even if the GPS data regarding the first four trips to New York City was gathered by a search and seizure, the court order renders the evidence admissible.
Fifth Circuit: pre-GPS beeper case US v. Michael, 645 F. 2d 252 (1981).
> [@Michael Court](#):
>
> Applying this dual privacy and intrusiveness analysis to the facts of the instant case, we hold that the minimal intrusion involved in the attachment of a beeper to Michael’s van, parked in a public place, was sufficiently justified so as to satisfy any of Michael’s fourth amendment expectation of privacy concerns.
> .
> .
> .
> We note that some members of the majority would hold that the installation of the beeper on the van is not a search or seizure at all, and thus does not implicate any fourth amendment interests. While we do not reject this view, we feel that under the facts presented, the installation of the beeper was permissible even if we assume the installation was a search
Remaining circuits, next post.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 21, 2011, 7:16pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/312 "2011-07-21T19:16:20Z")
Sixth Circuit: In the Sixth Circuit, US v. Walker, D. Court, WD Michigan 2011
> [@Walker Court](#):
>
> Defendant warns that allowing warrentless GPS monitoring of vehicles might lead to “shotgun” tactics: placing a GPS unit on any number of cars, then waiting to see which device leads to evidence of a potential criminal violation. (Objections ¶ 24.) While such tactics would perhaps be troubling, the Upper Peninsula Substance Enforcement Team has shown neither the inclination nor the capability to employ such tactics, and they certainly did not employ them here. As noted above, the Supreme Court has “never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.” Karo, 468 U.S. at 712. When faced with a similar challenge, the Seventh Circuit stated that “\*t would be premature to rule that such a program of mass surveillance could not possibly raise a question under the Fourth Amendment.” Garcia, 474 F.3d at 998. This Court agrees. “[T]he reality hardly suggests abuse; if such dragnet-type law enforcement practices as [Defendant] envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.”
Seventh Circuit: US v. Garcia, 474 F.3d 994 (2007), quoted extensively earlier in this thread.
Eighth Circuit: US v. Marquez, 605 F. 3d 604 (2010):
> [@Marquez Court](#):
>
> In denying the motion to dismiss, the district court found that Acosta’s waiver was valid, that he lacked standing to contest the installation of the GPS device, and that even if he had standing, no reasonable expectation of privacy had been violated.
> .
> .
> .
> Even if Acosta had standing, we would find no error. A person traveling via automobile on public streets has no reasonable expectation of privacy in his movements from one locale to another. United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). When electronic monitoring does not invade upon a legitimate expectation of privacy, no search has occurred.
Ninth Circuit: US v. Pineda-Moreno, 617 F.3d 1120 (2010), quoted extensively in this thread.
Tenth Circuit: pre-GPS beeper case US v. v. Shovea, 580 F. 2d 1382 (1978)
> [@Shovea Court](#):
>
> Although the agents were therefore fully justified in attaching the electronic tracking device to Robba’s car, without first securing a court order, we note the device did little more than assist the agents in following Robba and Gaias to Royce International. Once at Royce International, Robba and Gaias were observed, along with Shovea, in loading and unloading boxes into their respective vehicles. This evidence was not dispositive nor crucial and its exclusion would not have affected the outcome reached.
Eleventh Circuit: US v. Burton, 698 F. Supp. 2d 1303, D. Court ND Florida (2010)
> [@Burton Court](#):
>
> Applying the foregoing standards to the facts of this case, it is clear that the Defendant’s request for operation of the Fourth Amendment exclusionary rule because of law enforcement’s use of a GPS tracking device on the Defendant’s vehicle to trace the Defendant’s movements must be denied. First, the Defendant had no legitimate expectation of privacy in the movements of his automobile on public roads. The Defendant “voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.” Knotts, 460 U.S. at 281-82, 103 S.Ct. 1081. There is no Fourth Amendment violation for using a tracking device as a substitute for visual surveillance where “`[t]he substitute . . . is for an activity, namely following a car on a public street, that is unequivocally not a search within the meaning of the amendment.'” United States v. Pineda-Moreno, 591 F.3d 1212, 1216 (9th Cir.2010) (citing United States v. Garcia, 474 F.3d 994, 997 (7th Cir.2007)).
>
> Moreover, the intrusion caused by affixing the magnetic tracking device to the Defendant’s vehicle is minimal. The device was not placed on the interior of the vehicle, and required no dismantling, opening, or otherwise significant disturbance of the vehicle to attach or activate it. The Chevrolet Avalanche was not fenced in, kept inside a garage, or otherwise shielded from contact with any member of the public. In fact, the device was placed under the vehicle from a public sidewalk.
Draw all the tortured analogies you like.
The fact remains that in the federal courts, if you represent a client who’s been tracked with a car GPS device, and you want the evidence suppressed, you will be asking the court to change the law, not apply it.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 23, 2011, 1:24am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/313 "2011-07-23T01:24:59Z")
> [@Bricker](#):
>
> Well, this is precisely the reasoning that DC adopted. I suppose the Supreme Court might agree.
There ya go. Being overly rigid is bad for the soul ya know.
> [@Bricker](#):
>
> First Circuit: pre-GPS beeper case _US v. Moore_, 562 F.2d 106 (1977):
>
> And a GPS case, US v. Sparks, 750 F.Supp.2d 384 (2010):
Well, Bricker, I don’t think you even read Moore. maybe partway till you found something that sounded good. If you had you would see in their conclusion that, despite saying what you quoted, they went on to hold that placing a beeper on a car is a search requiring probable cause. Thx for the support. Why don’t you read the whole case next time?:eek:
[QUOTE= (quote) by the Moore Court]
We conclude that while the intrusion involved in surveillance of a vehicle by beeper is considerably lessened by the fact that one driving on public roads knows that he is subject to public scrutiny, still the intrusion cannot be written off as non-existent. And even though searches of automobiles often present exigent circumstances that permit the Government to dispense with warrants, see United States v. Chadwick, supra, \_\_\_ U.S. at \_\_\_, 97 S.Ct. at 2483-2484, it does not follow that searches coming within this exception can be conducted in all situations at the unlimited discretion of the police. The fourth amendment still places clear limits on official behavior in this context. We think it in keeping with Supreme Court precedent in other vehicular contexts, see, e. g., Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) (Powell, J., concurring); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), to hold that while the lessened expectancy of privacy associated with motor vehicles justifies the use of beepers without a warrant to track vehicles, this can be done only if the officers have 113\*113 probable cause at the time.
[/QUOTE]
Here’s the link to **Moore** , Dopers, and just remember, if I found it using Google, Bricker could have too.
> **[Google Scholar](https://scholar.google.com/scholar_case?case=7037898507870189061&q=US%2Bv.%2BMoore,%2B562%2BF.2d%2B106%2B%281977%29&hl=en&as_sdt=2,5&as_vis=1)**
We also have _Sparks_, eh, Bricker? First of all, Dopers, the Supps have little to no stare decisis value. Sometimes appellate courts view them as persuasive, but never binding. These are district court written opinions. You must remember a great deal of these do not see appellate review simply because the defendants can’t afford to appeal.
Even if it did have some weight in the state of the law in the first circuit, I note that the Sparks court quotes with approval United States v. Rascon-Ortiz, 994 F.2d 749, 754 (10th Cir. 1993) ‘(“The undercarriage is part of the car’s exterior, and as such, is not afforded a reasonable expectation of privacy.”).’ Sounds like this tenth circuit panel hasn’t been reading their _Katz_. “The fourth Amendment protects people, not places.” Isn’t that what Katz said? I think any judge quoting this panel is schizophrenic.
If these are the controlling cases for the first circuit, Bricker, then the state of the law in the first circuit is exactly NOT what you say and supports the D.C. court in _Maynard/Jones_.
> [@Bricker](#):
>
> Second Circuit: US v. Moran, 349 F. Supp. 2d 425 (Dist. New York 2005)
>
> Third Circuit: pre-GPS beeper case US v. Hossbach, 518 F.Supp. 759 (1980) – doesn’t decide if warrantless beepers are OK, but notes that all other courts have done so:
>
> Fourth Circuit: United States v. Berry, 300 F.Supp. 2d 366 (D. Md. 2004), declines to decide the issue:
These are all Supps. Too hard to find, I’m not gonna read them and do not need to, because, as explained above, District Court opinions have no weight under stare decisis. They’re ok to atempt persuasion to that view, but they do not make “the State of the Law” in any of the federal circuits.
You fail to show the state of the law in any of the 2nd, 3rd or 4th circuits as well.
> [@Bricker](#):
>
> Fifth Circuit: pre-GPS beeper case US v. Michael, 645 F. 2d 252 (1981).
[QUOTE= (quote) by the Michael Court]
We note that some members of the majority would hold that the installation of the beeper on the van is not a search or seizure at all, and thus does not implicate any fourth amendment interests. While we do not reject this view, we feel that under the facts presented, the installation of the beeper was permissible even if we assume the installation was a search
[/QUOTE]
In other words, they didn’t definitively decide it wasn’t a search because there was probable cause. Sounds like another concurrence, Bricker, and it sounds like the majority didn’t hold the beeper was not a search, either, they way they refer to “some members of the majority.” But at least this was an appellate court case.
Sheesh, Bricker, do you do this at work and get away with it? I had tougher opponents.:rolleyes:
I’ll look at the rest tomorrow. Including a closer look at the above fifth circuit case.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 23, 2011, 2:51am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/314 "2011-07-23T02:51:17Z")
> [@David42](#):
>
> Even if it did have some weight in the state of the law in the first circuit, I note that the Sparks court quotes with approval United States v. Rascon-Ortiz, 994 F.2d 749, 754 (10th Cir. 1993) ‘(“The undercarriage is part of the car’s exterior, and as such, is not afforded a reasonable expectation of privacy.”).’ Sounds like this tenth circuit panel hasn’t been reading their _Katz_. “The fourth Amendment protects people, not places.” Isn’t that what Katz said? I think any judge quoting this panel is schizophrenic.
Ha! Those zany whacky Sparks lawyers somehow missed a slam-dunk appealable issue. And that zany judge just issued a completely wrong decision under First Circuit law?
The thing that continues to piss me off is that the Supreme Court will rule, and settle the issue. And they won’t rule the way you’re arguing, but somehow, you won’t be wrong.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 23, 2011, 2:51pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/315 "2011-07-23T14:51:53Z")
> [@Bricker](#):
>
> Ha! Those zany whacky Sparks lawyers somehow missed a slam-dunk appealable issue. And that zany judge just issued a completely wrong decision under First Circuit law?
You’re the one suggesting that _Moore_ is the controlling case in the first circuit. If indeed it is. then yes, the _Sparks_ court did not follow first circuit precedent. Moore held that attaching a beeper to a car is a search requiring probable cause at the least. You’re the one cited the case that doesn’t support you.
As for the _sparks_ lawyers overlooking an appealable issue, do you have an explanation for why they didn’t appeal? No you don’t. Maybe they did miss an issue. Maybe the defendant was in prison and out of money. Maybe they decided to have a crack binge instead of working on the case. God may know why they did not, but you, Bricker do not. Nor do I. If you continue to insist you know why Sparks did not go further in a definitive manner, you’re going to be asked to cite.
I don’t need to know why _Sparks_ went no further to see that it has no weight under _stare decisis_ and does not set the “state of the law.”
> [@Bricker](#):
>
> The thing that continues to piss me off is that the Supreme Court will rule, and settle the issue. And they won’t rule the way you’re arguing, but somehow, you won’t be wrong.
When it boils down, Bricker, it is all opinion in law. Your O.P. specifically asks Dopers to examine **YOUR OPINION**. You ask a question that is largely a matter of opinion, and you will get opinion for answers.
As another Doper has pointed out, you also criticize court opinions when they do not agree with **YOUR OPINION**. Please explain this mechanism whereby YOUR OPINION matters but the fact that I have one is some kind of travesty?
Sounds like you are more interested in being the SDMB law authority than fighting ignorance. Get over it. The entire legal profession is full of opinions. But I guess only yours matters?
It seems kind of hypocritical to me.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 23, 2011, 3:41pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/316 "2011-07-23T15:41:03Z")
> [@David42](#):
>
> As for the _sparks_ lawyers overlooking an appealable issue, do you have an explanation for why they didn’t appeal? No you don’t. Maybe they did miss an issue. Maybe the defendant was in prison and out of money. Maybe they decided to have a crack binge instead of working on the case.
I can’t really rate the likelihood of the crack binge theory.
> [@](#):
>
> When it boils down, Bricker, it is all opinion in law. Your O.P. specifically asks Dopers to examine **YOUR OPINION**. You ask a question that is largely a matter of opinion, and you will get opinion for answers.
Yep. It’s all opinion in law. It’s like the judges gather round a Keno wheel and spin until it lands on an answer, and, hey! That’s the court’s result.
No. That ain’t it.
And as pointed out earlier, I am willing o say I disagree with the Court’s reasoning or decsions on a point. I am NEVER willing to say the Court’s opinion is unconstitutional, because that’s by definition wrong. They get to decide what the Constitution says. Their opinion makes controlling law.
I’ve been on these boards for nearly eleven years, and have authored thousands of posts. I don’t believe you’ll find one where I said the Supreme Court’s opinion was unconstitutional.
Moreover, your issue spotting sucks. The issue on which I ask for an OPINION from the readership is the mosaic theory, period. And I agree its possible the Court will validate that theory.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 23, 2011, 4:13pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/317 "2011-07-23T16:13:44Z")
As a matter of pure logic alone, and not trying to suggest the state of the law, I have been meaning to point this out:
If we believe _arguendo_ that the “exterior” of a car, including the undercarriage of a car, is exposed to the public by the owner, who therefore has no reasonable expectation of privacy in it, we have a problem when faced with the question: Since the beeper is also exposed to the public, it must be exposed to the owner, and therefore it makes sense that the owner will question its presence, and remove it and call the police or see a lawyer or change their activities, so why didn’t he?
The only answer is that it is hidden, the owner does not see it and does not know about what is hidden in his undercarriage. How can something hidden be exposed to the public? Have we gotten to the point where police hiding things so that they escape notice is excused by the fact that the owner “exposed” the hiding place?
What is this, “exposed” for the purposes of defendants, but “hidden” for purposes of police? Seems cheesy to me, quite the double standard. The thing is either where the public can readily see it or it isn’t, WTF is all this quibbling?
What happens when the police attempt to install their GPS and they find that the defendant’s (ahem…HIDDEN) keyholder is in the place they planned to put it, a place they are allowed to put it because it is “exposed to the public?” He, he, what happens if the second place the police try to put their GPS is where a previous owner put his keyholder?
Of course being in this position is brought to us by the fine folks whose priorities don’t seem in the interest of doing justice from time to time…
```
"Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right."
—Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–407, 410 (1932)[2] (Brandeis, J., dissenting).
```
> **[Precedent](https://en.wikipedia.org/wiki/Stare_decisis)**
>
> Precedent or stare decisis is a principle or rule established in a previous legal case relevant to a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems often view precedent as binding or persuasive, while civil law systems do not. Common-law systems aim for similar facts to yield similar and predictable outcomes, and observing precedent when making decisions is the mechanism to achieve that goal. Common-law precedent is a third Case law...
(Ok that’s not quite fair, its more recent courts that have put us in the illogical position we are in.)
For those who believe that saying something is more important than saying something correct, I suppose this makes sense. It doesn’t to me. I usually find it VERY HARD to argue with Justice Brandeis’ reasoning–no wonder he is so admired. If you’re interested in the state of the law, by all means quote the majority. Often, for good reasoning though, you wanna look at the dissents.
I reiterate I am asking out of logic, and not as a matter of law.
Folks, I should tell you, a fast one is being pulled here on We the People. 1984 is here, at least in the minds of those supporting warrantless GPS and other sorts of mass surveillance technology.
Sounds like some kind of truthspeak slogan to me: _ **Hidden is Exposed** _, sounds like it would have fit in right dandy with the other slogans in **1984**.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 24, 2011, 2:09pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/318 "2011-07-24T14:09:05Z")
> [@Bricker](#):
>
> I can’t really rate the likelihood of the crack binge theory.
I am sure you can check your state’s discipline of attorneys cases and find some where a lawyer on drugs neglected his cases. It happens. I personally know of a couple in the legal community I was involved in.
> [@Bricker](#):
>
> And as pointed out earlier, I am willing o say I disagree with the Court’s reasoning or decsions on a point. I am NEVER willing to say the Court’s opinion is unconstitutional, because that’s by definition wrong. They get to decide what the Constitution says. Their opinion makes controlling law.
>
> I’ve been on these boards for nearly eleven years, and have authored thousands of posts. I don’t believe you’ll find one where I said the Supreme Court’s opinion was unconstitutional.
>
> Moreover, your issue spotting sucks. The issue on which I ask for an OPINION from the readership is the mosaic theory, period. And I agree its possible the Court will validate that theory.
Bricker we do substantially the same things. You are trying to convert my statements into a claim that the Supreme Court has no authority. This is quibbling in semantics.
My issue spotting does not suck. You also call for opinions on what the fourth amendment says, not specifically on what the Supreme Court says it says.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 25, 2011, 4:46pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/319 "2011-07-25T16:46:03Z")
It looked extremely rocky for the Nine on the Court that day
The score was ten to one with just their cert grant left in play
Ten circuits said with GPS, no search warrant was needed,
And DC Circuit stood alone, and for a warrant pleaded.
Said DC, "To drive an hour
Is public as can be,
and thus the cops can have the power
to track what they can see.
"But lazy cops can’t GPS
their way around the Fourth
If a month of trips they would assess,
A warrant must come forth.
“The one lone trip is nothing hidden;
It’s free to prying eyes.
But the month of trips is well forbidden,
And not for state-run spies.”
Other circuits disagreed,
And spoke with near one voice:
"As long as each trip’s public,
We really have no choice.
It all revolves around the question
Of reasonable expectation
And courts cannot provide suppression
For trips in a public location."
The Nine pondered and puzzled, sparing only a laugh
For the zany idea that GPS’s steal gas.
And when finally they spoke, from their lofty redoubt,
.
.
.
er…
.
.
“I’ll finish this poem when their ruling is out.”
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 25, 2011, 9:49pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/320 "2011-07-25T21:49:26Z")
Now we see why you think dicta is law.
You were probably busy writing poems during the stare decisis lectures you were supposed to be absorbing.
Witty, perhaps, Bricker, but it does nothing to show any support for your view.
Someday you might understand that there is a difference, a difference the supreme court acknowledged, between 24/7 extended surveillance and the point A to point B type of surveillance.
I note you do not respond to my observations on the first through fifth circuits. Of the five, only the fifth actually supports your claim. You can continue to ignore it but that doesn’t make you right.
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