Not true. As the seminal Katz pointed out:
To listen to your private conversations? Yes, they need a warrant, per Katz. To track your car’s travels over the public ways? No warrant needed.
As I have pointed out before, the sneakier the police get the more they know they wouldn’t get the evidence they seek if they were actually present, which speaks volumes about what expectation of privacy you have. As in, the secreter they get, the more they know they are violating your privacy.
They claim efficiency, and while we can’t deny efficiency is a legitimate police interest, no need to waste tax dollars, their real interest is OBVIOUSLY secrecy.
Why does Katz apply? It is not the same issue.
We are talking about GPS here. If they can put it on your car why not access your phone’s geolocation ability?
And when was the last time you saw a glass phone booth? If they can determine the guy is standing in a park he is in public. If he talks others can hear him. The way this thread is going he would have no expectation of privacy apparently so why not turn on his phone’s mic?
In this example you provide, the FBI got a warrant from a judge to do this.
The Supreme Court also held in Katz that one can still seek privacy in public and be afforded fourth amendment protection. If the guy is standing in line to buy a drink in the park, he’s fair game. If he made a point to walk fifty yards away from anyone in the park before making his call, the fourth amendment protects him.
I should have qualified–only his side of the conversation is fair game. Sorry.
They did but given these rulings and the apparent opinion of our resident legal experts here do they have to? We have warrantless wiretapping now so why not?
While this may be true (I do not know) that seems a distinctly vague measure. When, exactly, have you moved from the public to an expectation of privacy? Seems to me a court can decide any way they want in such a case.
And for my hypothetical we have two issues:
-
GPS of where you are (the topic in question)
-
Listen in on your conversation
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.
Admittedly #2 starts getting more dicey but why not? If they locate you in your home I can see them not being allowed to listen in without a warrant (caveat to warrantless wiretapping as linked above) but if you are located at McDonalds then why not?
To my knowledge the Supreme Court has not approved the Patriot Act in this regard, and it is clearly unconstitutional under Katz. But I am rusty on the law, not having kept up on current developments except as they appear in the news. I would have thought it would have come up by now, but maybe I missed it. Why the lower courts aren’t mentioning it, I do not know.
The Patriot Act is, of course, statutory in nature and statutes are supposed to conform to the constitution, not repeal it. The fourth Amendment governs searches, and not the Patriot Act, IF the Patriot Act and the 4th disagree.
Have you never walked a ways away from a group in public in order to make a phone call so that they would not know your business? Reasonable people do this, and I really do not understand how you do not understand it. As for the court deciding any way it wants to, it tries or says it tries to use an objective person standard. So far as I gather, what they decide a reasonable person would do is somewhat arbitrary. Sometimes they give hypothetical examples of reasonable or unreasonable behavior. Most of the time I am agreeable to their examples and reasoning, but sometimes I have to say, “yeah, right, from the perspective of a (insert political leaning) Justice of the S. Ct., that makes sense, but not from the perspective of an ordinary disinterested objective person.”
Also, the S. Ct. says repeatedly that decisions must turn on the facts of each case.
To be fair to Bricker, but not to speak for him, I don’t see where he has approved of GPS tracking by phone. I think he cited Katz against it, didn’t he? His approval appears to be limited to vehicles or objects carried in vehicles.
Seeing your comment in a slightly different light than above, I’d point out differences between cell phones and cars. Cars are most often “in public” (for our purposes) and cell phones are far more frequently inside the home. There has long been different thought on cars vs. phones for fourth amendment purposes.
A case dealing with the Terrorist Surveillance Program (“ACLU v. NSA”) did get up to the 6th Circuit, where it was dismissed for lack of standing.
I change my opinion on placing a GPS device on a vehicle in the driveway after reading Judge Kozinski’s dissent in the denial of a petition for rehearing en banc United States v. Pineda-Moreno, 591 F.3d 1212, 1214-15 (9th Cir. 2010)
Dissents and concurrences have no current force of law under stare decisis. This does not mean they aren’t sometimes very informative. Sometimes dissents are later adopted as a majority opinion. For instance, Justice Brandeis dissent in Olmstead was later upheld by the majority in Katz.
So I am not suggesting that Judge Kozinski’s dissent is the law in the ninth circuit. It does however convincingly explain why the panel in Pinedo-Moreno is wrong.
Whack-a-Mole, this ought to help explain your questions.
Judge Kozinski’s dissent, in part, joined by four other 9th circuit judges:
“1. The opinion assumes that Pineda-Moreno’s driveway was part of his home’s curtilage, yet concludes that Pineda-Moreno had no reasonable expectation of privacy there. Curtilage is a quaint word most people are not familiar with; even among judges and lawyers, the word is seldom well understood. Yet, it stands for a very important concept because it rounds out the constitutional protections accorded an individual when he is at home.
Curtilage comes to us by way of Middle English and traces its roots to the Old French courtillage, roughly meaning court or little yard. In modern times it has come to mean those portions of a homeowner’s property so closely associated with the home as to be considered part of it. The walkway leading from the street to the house is probably part of the curtilage, and the stairs from the walkway to the porch almost certainly are, as is the porch where grandma sits and rocks most afternoons and watches strangers pass by. The attached garage on the side of the house is part of the curtilage, and so is the detached shed where dad keeps his shop equipment and mom her gardening tools—so long as it’s not too far from the house itself. The front lawn is part of the curtilage, and the driveway and the backyard—if it’s not too big, and is properly separated from the open fields beyond the house. Whether some portion of property—the porch, the stairs, the shed, the yard, the chicken coop—is part of the curtilage is sometimes a disputed question. But once it is determined that something is part of the curtilage, it’s entitled to precisely the same Fourth Amendment protections as the home itself. How do we know? Because the Supreme Court has said so repeatedly.
In Oliver v. United States, the Court said as follows: [O]nly the curtilage . . . warrants the Fourth Amendment protections that attach to the home. At common law, the curtilage is the area to which extends the intimate activity associated with the “sanctity of a man’s home and the privacies of life,” and therefore has been considered part of home itself for Fourth
Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage.”
FULL TEXT HERE: http://www.ca9.uscourts.gov/datastore/opinions/2010/08/12/08-30385.pdf
“Convincingly?”
I suppose if you are convinced, then the adjective is accurate to some extent.
I am not. The rest of the Ninth Circuit were not. Other circuits were not.
The Supreme Court, when they get their hands on US v Jones this October, will not be, either.
When the best explanation of your proposed rule of law appears in a dissent, you’re not in good shape.
David42, I’ve fixed some the formatting in your quote from the dissent and inserted a link so other posters can read it in full.
Thx. I didn’t realize how long that got until afterwards.
How about when it appears in two Supreme Court Majority opinions?
"In Oliver v. United States, the Court said as follows:
[O]nly the curtilage . . . warrants the Fourth Amendment
protections that attach to the home. At common
law, the curtilage is the area to which extends the
intimate activity associated with the “sanctity of a
man’s home and the privacies of life,” and therefore
has been considered part of home itself for Fourth
Amendment purposes. Thus, courts have extended
Fourth Amendment protection to the curtilage.
466 U.S. 170, 180 (1984) (quoting Boyd v. United States, 116
U.S. 616, 630 (1886)) (emphasis added). Three years later, the
Court reiterated the same view in* United States v. Dunn*, 480
U.S. 294, 300 (1987):
[In Oliver] we recognized that the Fourth Amendment
protects the curtilage of a house and that the
extent of the curtilage is determined by factors that
bear upon whether an individual reasonably may
expect that the area in question should be treated as
the home itself."
The circuits you are following are ignoring the Supreme Court.
At least I explained the effect of a dissent or a concurrence without trying to present it as force of law. You on the other hand have presented a 7-1-1 ruling, and presented the 1 concurring judge’s opinion as having force of Law.
Why you didn’t claim your opinion was weak while standing on a concurrence by one Judge, I don’t know.
Pinedo-Morales is bad because it ignores Oliver and Dunn, as above…Garcia ignores Katz…MArquez doesn’t even have anything to do with any of the issues involved, and I don’t understand why you cite it.
I am standing upon Supreme Court majority opinions, you are standing on a handful of circuit court opinions ignoring the Supreme Court, and you think your position is in better shape?
Pinedo-Moreno, that is.
But can’t I reasonably expect that my local PD cannot afford to track me with such resources? Is this really the standard against which “reasonability” is to be compared, a police department with unlimited resources?
Remind me, why was it so onerous to get a warrant to affix the GPS to this guy’s car? In browsing the six pages of this thread, I saw mention of an expired warrant, but I think that was in reference to some other information-gathering technique. IANAL, but is it unreasonably (there’s that word again) burdensome to ask a prosecutor to take a text message to a judge showing a conspiracy to purchase cocaine and get a warrant to electronically tail the guy? Why couldn’t that be done?
The expired warrant was indeed the GPS case Jones.
The idea of police who employ vast resources over a long period of time but can’t spare one guy to get a warrant is ludicrous, of course. Bricker seems to forget that the starting point in fourth amendment reasoning is the presumption for a warrant. Exigent circumstances, such as no time to get a warrant are reasonable, but clearly in a month-long surveillance scheme there is no hurry. Police should cover their bases if they want good cases in court and should always get a warrant where possible.
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?