Oh, good! A New Constitutional Theory of Privacy!

[David42]

@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]

Sounds seedy on the face of it. Of course from the judge’s perspective I might find the devil in the details, but for our purposes I will agree to sufficient probable cause to justify an interference with a constitutional right.

I’m still really suspicious as to why they once thought they needed a warrant and then acted without one, especially in light of the delay of a month. Its not like they were in a hurry. But I can also imagine facts where they don’t look bad over this too.

It will be interesting to see what the Supreme Court does. Jones will rely on the state court’s opinion to bolster the D.C. court of appeals, the prosecutors will rely on the federal appeals courts contrary to D.C.

I still subscribe to the mosaic theory. As I pointed out, the fact that most of us would become alarmed when we learn we’re being closely monitored/followed and change our behavior speaks volumes about an expectation of privacy, or if I had my druthers a demand for privacy.

(Wouldn’t it be a trip if a Justice got curious on what the public expectation of privacy really is, rather than a judge guesses it to be, googled it to see what the public thought, found this thread and adopted that “demand” for privacy? I have an active imagination to say the least.)

Please note that conceding probable cause here does nothing to alter my argument that absent probable cause… (kinda tired of typing it, you know the rest.)

[David42]

@Bricker

By the way:

Meaningful interference with an individual’s possessory interest in property. Actual trespass neither necessary or sufficient for a constitutional violation.

Hmmm…

But of course they also said it is “marginally relevant,” as well, which is NOT to say “entirely irrelevant.”

Its not dispositive of a fifth amendment question though, as this is fourth amendment analysis.

My restated premise did not include a specification of fourth or fifth, but I did originally say that.

To get me to concede my restated premise you’d still need a case where there was no probable cause or whatever other minimal justification language is used.

Trespass alone is not sufficient, but since it can be marginally relevant, taken with other factors, it might play a part in analysis. I never really bought the trespass angle anyway. Not as in the going into the driveway to do it. I’d agree if it was posted or fenced perhaps, that trespass is more important issue in the analysis if that is the case.

I’d like to see what would happen in the case where the suspect unexpectedly appears and wants to drive the vehicle while police are under it.

It could be argued that removing the ability for him to drive at any time is a substantial enough interference for the taking to occur, wouldn’t you think? I mean, what if he had to drive his wife to the hospital to deliver a child? Interesting question but that really boils down to speculation at this point.

And I still think the obvious police desire in secrecy when doing these kinds of things speaks volumes to what the expectation of privacy is. They want to be secret because it is such an obvious end run around it.

[Bricker]

@David42

Please note that conceding probable cause here does nothing to alter my argument that absent probable cause… (kinda tired of typing it, you know the rest.)

Right. It sounds like you’re proposing that warrantless placement of GPS monitors be permitted based on probable cause, or possibly on reasonable suspicion. The government’s position is that no threshold at all is required.

In the specific case of Jones, of course, probable cause exists. So I suppose the Court could announce the very rule you’re supporting, here. I’m certain that the Court took up this case to resolve the circuit split on the issue… but I’ll also point out that DC circuit stands alone on this point.

So far as I’m aware, all the state decisions to the contrary rest on their own state constitutions – I’m not aware of any state court that has rested a GPS decision on the federal constitution and reached the same decision that DC did.

[David42]

@Bricker

Right. It sounds like you’re proposing that warrantless placement of GPS monitors be permitted based on probable cause, or possibly on reasonable suspicion. The government’s position is that no threshold at all is required.

In the specific case of Jones, of course, probable cause exists. So I suppose the Court could announce the very rule you’re supporting, here. I’m certain that the Court took up this case to resolve the circuit split on the issue… but I’ll also point out that DC circuit stands alone on this point.

So far as I’m aware, all the state decisions to the contrary rest on their own state constitutions – I’m not aware of any state court that has rested a GPS decision on the federal constitution and reached the same decision that DC did.

All the cases you have cited contain probable cause. It already is the law. How do you know what would happen when they get a case, say like Jones appeared to be…“seedy night club owner.” If that was all they had in Jones, are you still saying they can do whatever they want, based on that?

You still have not produced a case that lacks probable cause or the equivalent justification that says the government can do this since it ‘doesn’t matter.’ You have no cause to relegate my statement to a proposal without proving your position. Unless you mean they could announce the mosaic analysis.

Do you have a good reason to suppose that state constitutions (probably modeled on the federal) would mean something different in their relevant clauses? And did you read the state cases, so that you know they did not turn on the federal constitution? It’s been made applicable to the states so I figure they probably did have federal constitutional analysis, possibly along with the state constituion analysis, without reading them.

[David42]

Reiteration: I am NOT proposing, but stating that the law already is such that if a case went to the courts without probable cause (or the equivalent to be relevant to the type of action) they would rule against the government and the fact that it was de minimis would not save it.

[Bricker]

@David42

All the cases you have cited contain probable cause. It already is the law. How do you know what would happen when they get a case, say like Jones appeared to be…“seedy night club owner.” If that was all they had in Jones, are you still saying they can do whatever they want, based on that?

Yes, because I have read each and every one of these cases.

You still have not produced a case that lacks probable cause or the equivalent justification that says the government can do this since it ‘doesn’t matter.’ You have no cause to relegate my statement to a proposal without proving your position.

Look at every single GPS case EXCEPT Jones!

The Fourth Amendment is not triggered if there is no reasonable expecation of privacy in an area. The police do not need any kind of cause or suspicion to do anything to you that is not a “search” or “seizure” within the meaning of the Fourth Amendment.

Every other federal court except DC that has considered the issue has said no warrant is required. Here are a couple of examples:

@US v. Sparks

Because Sparks had no reasonable expectation of privacy either in the shared parking lot or in the exterior of his vehicle, the placement of the GPS device on the vehicle cannot be considered a search or seizure.
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.
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Sparks also argues that the aggregate of his travels became something of a synergism—the whole of his movements being more private than his individual travels. Citing solely to a recent decision from the U.S. Court of Appeals for the District of Columbia Circuit, Sparks alleges that the longer the GPS was placed on the car, the more his privacy was invaded because it gave the government a wealth of information about his personal preferences. . . . While this may be factually true, it is legally unconvincing. Although the continuous monitoring may capture quantitatively more information than brief stints of surveillance, the type of information collected is qualitatively the same. . . . Sparks’s argument, then, that the aggregate of his travels are entitled to more constitutional protection than his individual trips, must fail.

@US v. Moran

Moran separately moves for suppression of any evidence obtained from a GPS device attached to his vehicles as well as any evidence derived from information obtained from the GPS tracking device, as violative of his Fourth Amendment rights. . . . 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. Accordingly, there was no Fourth Amendment violation and suppression of the GPS information is not warranted.

The discussion in the 7th Circuit is interesting, because the district judge seemed to agree with you, but the appeals court disagreed, saying not even reasonable suspicion was required:

@US v. Garcia

The police had not obtained a warrant authorizing them to place the GPS tracker on the defendant’s car. The district judge, however, found that they had had a reasonable suspicion that the defendant was engaged in criminal activity, and she ruled that reasonable suspicion was all they needed for a lawful search, although she added that they had had probable cause as well. The defendant argues that they needed not only probable cause to believe that the search would turn up contraband or evidence of crime, but also a warrant. The government argues that they needed nothing because there was no search or seizure within the meaning of the Fourth Amendment.
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If a listening device is attached to a person’s phone, or to the phone line outside the premises on which the phone is located, and phone conversations are recorded, there is a search (and it is irrelevant that there is a trespass in the first case but not the second), and a warrant is required. But if police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite imaging as in Google Earth, there is no search. Well, but the tracking in this case was by satellite. Instead of transmitting images, the satellite transmitted geophysical coordinates. The only difference is that in the imaging case nothing touches the vehicle, while in the case at hand the tracking device does. But it is a distinction without any practical difference.

There is a practical difference lurking here, however. It is the difference between, on the one hand, police trying to follow a car in their own car, and, on the other hand, using cameras (whether mounted on lampposts or in satellites) or GPS devices. In other words, it is the difference between the old technology — the technology of the internal combustion engine — and newer technologies (cameras are not new, of course, but coordinating the images recorded by thousands of such cameras is). But GPS tracking is on the same side of the divide with the surveillance cameras and the satellite imaging, and if what they do is not searching in Fourth Amendment terms, neither is GPS tracking.

Do you have a good reason to suppose that state constitutions (probably modeled on the federal) would mean something different in their relevant clauses? And did you read the state cases, so that you know they did not turn on the federal constitution? It’s been made applicable to the states so I figure they probably did have federal constitutional analysis, possibly along with the state constituion analysis, without reading them.

I am losing patience with you. You are vociferously arguing for a point while continuing to announce that you haven’t read the cases.

Yes, as a general principle, state court decisions will say something like, “Even though the words of the Massachusetts Constitution’s prohibition are identical to those of the federal constitution’s Fourth Amendment, we have held that the state constituion provides greater protection…” And yes, I have read the relevant state cases. For example:

@Commonwealth v. Connelly

We conclude that there was probable cause to issue the search warrant for the minivan; the use of a GPS tracking device requires a warrant for purposes of art. 14 of the Massachusetts Declaration of Rights; the installation and use of the GPS tracking device in this case was a seizure; and the GPS tracking warrant had not expired.

@People v. Weaver

Thus, we do not presume to decide the question as a matter of federal law. The very same principles are, however, dispositive of this matter under our State Constitution. If, as we have found, defendant had a reasonable expectation of privacy that was infringed by the State’s placement and monitoring of the Q-ball on his van to track his movements over a period of more than two months, there was a search under article I, § 12 of the State Constitution. And that search was illegal because it was executed without a warrant and without justification under any exception to the warrant requirement. In light of the unsettled state of federal law on the issue, we premise our ruling on our State Constitution alone.

We note that we have on many occasions interpreted our own Constitution to provide greater protections when circumstances warrant and have developed an independent body of state law in the area of search and seizure…

I have cited a boatload of cases.

You have, so far as I can tell, repeatedly cited your own opinion.

Are you relying on any cases at all? Do YOU have any cites?

[Bricker]

@David42

Reiteration: I am NOT proposing, but stating that the law already is such that if a case went to the courts without probable cause (or the equivalent to be relevant to the type of action) they would rule against the government and the fact that it was de minimis would not save it.

Even though there’s a whole shitload of cases that explictly say otherwise?

[David42]

@Bricker

Even though there’s a whole shitload of cases that explictly say otherwise?

I already provided two cites that “de minimis” is not a constitutional law doctrine.

As far as I can tell, you find the words “de minimis” or the english equivalent in a balancing test which is only performed when probable cause is first established, then claim it is a doctrine which establishes probable cause is not necessary?

I doubt the supreme court has ever addressed the issue. Any problem of this nature would STOP dead in its tracks at the district court level if probable cause (or reasonable suspicion in a patdown case) is not present. It’s so idiotic, no district attorney would brief on the issue and claim, “This search is reasonable even though the police offer had no cause whatsoever to detain the individual except driving while black. Since the stop was de minimis, the evidence is admissible.”

I’m not going to be able to cite it because nobody would waste their time to brief it, and the s.ct. wouldn’t grant certiorari. No attorney in their right mind would advance your position.

it’s like me claiming that courts do not make findings that pigs fly and you asking me to cite it.

de minimis does not cure constitutional defects such as a lack of probable cause. You can cite all the cases in the world where probable cause exists and they do not address the issue.

But I am having a look anyway.

FWIW I just talked to a local lawyer on the street and asked, “if a police officer stopped a motorist for no reason other than driving while black, would it be a constitutional violation of the fourth amendment?”

“Yes,” he answered.

“If the intrusion were so minimal that it couldn’t really be quantifiable as harm, would it cure any foregoing defect?”

“Of course not.”

“Would you be able to cite it?”

“The Supreme Court hasn’t dealt with that. And they probably never will because it isn’t happening in the courts.”

He walked away chuckling…

But I will endeavor to have a look anyway, just in case there once was a prosecutor so unlearned that he made this claim, that de minimis cures constitutional violations.
I already cited that de minimis is not a constitutional law doctrine. Accept it.

[Bricker]

david42:

Good luck to you in your future endeavors.

[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.

[David42]

Ok this one is less Jones is right as it is Garcia is wrong.

In Katz, the Supreme Court held that “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210; United States v. Lee, 274 U.S. 559, 563. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. [p352] See Rios v. United States, 364 U.S. 253; Ex parte Jackson, 96 U.S. 727, 733.”
In contrast, the 9th Circuit in Garcia , where the defendant had gone onto a large tract of land to manufacture methamphetamine, utterly refused to recognize the principle enunciated by the S.Ct. in Katz that “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” There is no reasonable alternative to the idea that Garcia had gone out into the countryside in order to escape detection. He did not obtain his precursor chemicals or his equipment out in the countryside; being in the countryside was not a requirement to making methamphetamine.
Many people go into the countryside to be alone. Lovers do it and largely expect no-one is watching. Many do it to get close to nature and to avoid the masses of people in the cities. Some do it to be alone with their thoughts without distraction. It cannot be reasonably stated that they seek anything but to be away from other people. It is glaringly obvious that Garcia went to an isolated place in order to avoid detection.
Accordingly, Garcia had an expectation of privacy, that while not rising to the level of protection afforded him in his home, is still enough to find that there was a search within the meaning of the fourth amendment.
The court in Garcia did not mention that any other locations Garcia travelled to were relevant to the conviction. Some may have been and not be needed to discuss this issue, and therefore not needed to be raised. However, if the destination in the countryside was the only information relied upon to further a conviction, he might still lawfully be convicted. The court did not say so and so the presumption is that this is all there is.
Since the district court found probable cause, whether the police had any exigent circumstances permitting them to skip the warrant requirements of the fourth amendment is a valid question, but apparently not answerable at this time since the court’s opinion does not state such facts. Apparently the police gathered facts before hand without any real hurry. If this is so, they should have gotten the warrant.

[David42]

@David42

Ok this one is less Jones is right as it is Garcia is wrong.

In Katz, the Supreme Court held that “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210; United States v. Lee, 274 U.S. 559, 563. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. [p352] See Rios v. United States, 364 U.S. 253; Ex parte Jackson, 96 U.S. 727, 733.”
In contrast, the 9th Circuit in Garcia , where the defendant had gone onto a large tract of land to manufacture methamphetamine, utterly refused to recognize the principle enunciated by the S.Ct. in Katz that “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” There is no reasonable alternative to the idea that Garcia had gone out into the countryside in order to escape detection. He did not obtain his precursor chemicals or his equipment out in the countryside; being in the countryside was not a requirement to making methamphetamine.
Many people go into the countryside to be alone. Lovers do it and largely expect no-one is watching. Many do it to get close to nature and to avoid the masses of people in the cities. Some do it to be alone with their thoughts without distraction. It cannot be reasonably stated that they seek anything but to be away from other people. It is glaringly obvious that Garcia went to an isolated place in order to avoid detection.
Accordingly, Garcia had an expectation of privacy, that while not rising to the level of protection afforded him in his home, is still enough to find that there was a search within the meaning of the fourth amendment.
The court in Garcia did not mention that any other locations Garcia travelled to were relevant to the conviction. Some may have been and not be needed to discuss this issue, and therefore not needed to be raised. However, if the destination in the countryside was the only information relied upon to further a conviction, he might still lawfully be convicted. The court did not say so and so the presumption is that this is all there is.
Since the district court found probable cause, whether the police had any exigent circumstances permitting them to skip the warrant requirements of the fourth amendment is a valid question, but apparently not answerable at this time since the court’s opinion does not state such facts. Apparently the police gathered facts before hand without any real hurry. If this is so, they should have gotten the warrant.

ummm…I meant

" However, if the destination in the countryside was NOT the only information relied upon to further a conviction, he might still lawfully be convicted"

[Magiver]

I don’t understand the coulda-woulda line of logic. If they could have followed him publicly therefore the unwarranted GPS would be OK?

If it’s OK for the police to use GPS’s without a warrant than the public at large should be able to affix them to the cars of police, politicians, and judges.

[Bricker]

@Magiver

I don’t understand the coulda-woulda line of logic. If they could have followed him publicly therefore the unwarranted GPS would be OK?

If it’s OK for the police to use GPS’s without a warrant than the public at large should be able to affix them to the cars of police, politicians, and judges.

If the principle here is, “Anything that the police may do without a warrant should be avaliable to be done by the public at large,” then I disagree. For example, without a warrant the police may pretend to be a prostitute and wait to be solicited for sex for money. The public may not do this without risking arrest. The police go undercover and offer drugs for sale; the public may not.

If you are suggesting some other test, please explain.

[Magiver]

@Bricker

If the principle here is, “Anything that the police may do without a warrant should be avaliable to be done by the public at large,” then I disagree. For example, without a warrant the police may pretend to be a prostitute and wait to be solicited for sex for money. The public may not do this without risking arrest. The police go undercover and offer drugs for sale; the public may not.

If you are suggesting some other test, please explain.

The court said putting a GPS on a car was tantamount to the ability to follow someone around publicly. I simply showed how that works if the public decides to follow a judge or politician around.

Case in point.

Prostitution is illegal, following someone around in a car is not.

[David42]

@Magiver

The court said putting a GPS on a car was tantamount to the ability to follow someone around publicly. I simply showed how that works if the public decides to follow a judge or politician around.

Case in point.

Prostitution is illegal, following someone around in a car is not.

Stalking is a matter essentially handled by the states. In my state, stalking is something more than a following someone around; (my state also has caselaw to the effect that stalking can be accomplished by electronic means as well as physical) there also has to be a credible threat. N.J. may be the same.

To compare citizen powers vs. those of police, I have the right to make a citizen’s arrest if I witness a Class A misdemeanor, but not B,C, or D misdemeanors. I have the right to make a citizen’s arrest if I have probable cause to believe a felony has been committed.

I can maintain hot pursuit in either case. I should also call police if it is possible, during a pursuit, or get a stander-by to help. Since a limited following of a person in public (if it goes on too long it is reasonable to infer a credible threat) is legal, I do not see why I couldn’t slap a beeper on a car (assuming I walk around with beepers is unlikely, however) in order to assist in pursuit. Can’t think of a reason not to.

I can’t search a suspect I arrest beyond a patdown for weapons.

If I make a mistake I am subject to a false imprisonment lawsuit. If the police make a mistake, they enjoy partial immunity. If they make a bad arrest in good faith as a part of ordinary police business, they are safe.

In conducting an arrest, I can use any weapon that is lawful for me to possess as a citizen. Apparently police can use any thing they want to. If a city in my state has an ordinance against loaded guns, this would be an exception if my memory serves, I could have that one wrong.
I can use any other tool to assist in an arrest that is lawful for me to possess, like handcuffs.
Different states are going to have different provisions, but it is likely that the laws governing these things in most states are similar to my state. Some may limit it to felonies or forbid pursuit, I believe.

[kidchameleon]

Heck, if using a GPS instead of four agents watching him around the clock saves my tax dollars to be better spent elsewhere, use the dang GPS.

[Bricker]

@Magiver

The court said putting a GPS on a car was tantamount to the ability to follow someone around publicly. I simply showed how that works if the public decides to follow a judge or politician around.

Case in point.

Prostitution is illegal, following someone around in a car is not.

Following a judge or politician around may well be illegal, if your conduct allows an inference that you harbor other intentions.

When a jury considers intent, since we have no magical device that allows them to read minds, they are permitted to infer intent from actions. People are presumed to intend the ordinary consequences of their actions.

When the police follow someone around, they can point to an investigation as the reason… even if there is no admissible suspicion against the target, the idea that police investigate people is a common one. That’s not an explanation available to the private citizen who follows a judge around.

[David42]

@kidchameleon

Heck, if using a GPS instead of four agents watching him around the clock saves my tax dollars to be better spent elsewhere, use the dang GPS.

I’m for it, as long as they follow the rules. It does allow for more effective law enforcement.

[Whack-a-Mole]

@kidchameleon

Heck, if using a GPS instead of four agents watching him around the clock saves my tax dollars to be better spent elsewhere, use the dang GPS.

The FBI can eavesdrop on you by turning on your cell phone’s mic (even when your phone is off in some cases).

Then can also access the phone’s geolocation features (if it has it which is quite common nowadays).

I suggested they use RFID earlier but hell…why bother?

Apparently the people here who are fine with the GPS would be fine with this too since your phone is a GPS device too (or many are anyway). If the FBI determine you are in public (via the geolocation ability) they can turn on your phone and listen in. No different than if they were standing near you and overheard you right?

Why shouldn’t they have to get a warrant first? Now they can just fish for evidence apparently and for some reason people here are ok with that.