You seem to disagree with the the holding of the court, but I’m not sure why. You don’t think a person has an legitimate expectation in the privacy of his vehicular movements over the course of a month. The court did. I could see the SCOTUS going either way on this, but it’s an unsettled question and the DC Circuit opinion does not seem unreasonable to me. Your title implies there are negative repercussions of this ruling, I don’t see any. Hence the “relevance” of my “they had time to get a warrant if they wanted” comment.
This sort of mosaic analysis either makes sense, or it does not. Note that “it makes sense when, and only when, the result serves the government’s interests” is not on the menu.
Oddly enough, the court discussed some stalking kind of cases (Jackie O’s invasion of privacy case due to "endless snooping) in support of it’s proposition that the cumulative nature of the searches may be violative of the 4th Amendment. They also cite to some state laws that make it illegal (unless you’re law enforcement) to “use an electronic tracking device to determine the location or movement of a person,”. That law stated: “electronic tracking of a person‘s location without that person‘s knowledge violates that person‘s reasonable expectation of privacy,and implicitly but necessarily thereby required a warrant for police use of a GPS.” They also cited cases from other jurisdictions (Washington and NY) holding the same thing.
I’m not sure I’m buying their rationale on the cumulative nature being a violation of a reasonable expectation of privacy. But at least it should be given a fair shake in debate.
Maybe slow typing was the reason the police couldn’t get a warrant to bug someone’s car over the course of a month-long investigation.
So, with this in mind, would it be OK for me to attach a GPS device to the car of a neighbor who I suspect works at a top-secret government facility? Just for my own purposes of course. Surely he couldn’t object to me noticing his public movements.
Your best bet would be to attach a GPS device to her undercarriage when she isn’t looking. That seems to be A-OK.
Former detective here. We used these things a fair amount. In the early days no warrant was needed. Then some judge decided that if we used the car’s electrical system we needed a warrant. If we used an internal battery, no warrant. I guess we were seizing electricity or something. Then some other judge (group of judges really) decided we needed a warrant in all cases, and a CDW (communications data warrant) at that. CDWs were normally used for wiretaps but the courts gradually expanded their use to phone records, clone beepers (remember beepers?) or anything else that involved searching records of someones electronic communications. CDWs generally had a higher standard of probable cause but I think they may have lightened up on that a little with the exception of actual wiretaps. I never could understand how a GPS logger or live tracker involved the interception of anyones communications. But these people are lawyers and sometimes are lacking in logical thinking.
Following this “mosaic” theory, a warrant would be needed just to follow someone 24/7. The ironic thing is that GPS devices were often used to obtain probable cause (you non-legal types might have an inaccurate idea of what “probable cause” is. In NJ it has come to mean “The only possible explanation for what you are observing is the commission of a crime”). Now you need the pc first. The intrusion is very limited an no cops that I know of have the time or inclination to go slapping these things on peoples cars just for kicks. If there are individual abuses then deal with them individually.
Mach Tuck - are you saying its ok to follow people as long as you don’t have some sort of advantage? Cars but no choppers? Choppers but no marking of the car in some way? The only things a GPS does vs normal physical surveillance is a)save money and b)minimize the chance the target can lose the tail.
If you want maximum protection from “the man”, move to NJ. Your trash is safe here. You will not be chased for running away when the cops show up. You will not be Tazered. You will not be shot with a bean bag. If you even think the word “lawyer” all questioning will be stopped. Just be prepared for the tax and insurance bills. We’ll get you one way or another. Bwaaaaaaaah!
That’s really not the point. Whether surveillance is done for kicks or with serious delibertation, the state should have to meet a high threshold before it can spy on someone and a person’s privacy should be respected.
What the Fourth Amendment says:
This is a perfect example of why our C.J.'s analogy of calling balls and strikes is so totally bullshit. If you look at the Amendment itself, considering none of the intervening case law, then you’ve got your opinion of whether it protects Jones from this sort of surveillance, and I’ve got mine. There are, I’m sure, plenty of arguments that can be made from both sides.
There has been plenty of case law about the Fourth Amendment since it was ratified, and that surely narrows down the scope of the arguments somewhat. But I’ll bet that even the case law currently in existence comes far from making this a cut-and-dried call. Is this a ball or a strike? We’re still working on defining the strike zone.
And that’s almost exclusively what the Supreme Court does. The balls and strikes, in cases where the boundaries of the strike zone are unambiguous, have been handled by the lower courts or state courts. The Supreme Court perpetually refines its definition of the strike zone.
Agreed.
Then again, I tend not to get upset when higher courts find in favor of privacy rights, whether or not they are “new” (as the Supreme Court did in upholding abortion rights in Roe v. Wade).
Does not matter to me on how any court defines privacy, I do not want any agence to be able to monitor, track, listen to, or follow me without a warrent. Just another example of our rights being chipped at slowly but surely. Next thing they will put a GPS in my daughters backpack to see if she is eating junkfood at Macdonalds and joining the great obesity crises.
Er…your rights have been expanding with time, as MikeF’s post demonstrates.
The beeper was a single trip.
Kyllo.
No.
Kyllo does indeed seem to hinge on the government’s using a device that’s not “in general public use,” but the chip in your example is simply a GPS beacon, which IS in general public use.
Although putting them in drivers’ licenses might be the thing that the general public couldn’t do, so you might be right.
I took that term from Judge Ginsburg:
Yes, that’s true.
But does that make it a Fourth Amendment issue?
I haven’t had time to read the decision as posted by Hamlet, but that’s what I figured. And that strikes me as a big difference. You don’t have an expectation of privacy on any one trip, but you would not reasonably expect anybody to monitor all your driving trips for a month. I’m still sorting out my opinion on the Fourth Amendment aspect. There are so many legal questions regarding surveillance and privacy these days that maybe it’s reasonable to see the amendment as apply to things like data collection and monitoring as well as physical searches.
Why?
In other words, we’re talking about what the Fourth Amendment says. If we wish to talk in broader terms, like “Is this kind of snooping irritating enough that we should require a warrant by law?” then I agree with you: the argument is the same. But if we’re simply talking about what the Fourth Amendment prohibits, then it seems that’s a different discussion.
Would the Fourth Amendment be violated if the police assigned a team of 75 agents, with 35 cars and a pair of helicopters, to track you daily for a month?
And he took it from the federal government’s argument in Sims.
Regardless of what you want to call it, my only suggestion is that you might want to give a fairer statement of the court’s reasoning before you lambast it. Especially for the non-lawyers.
OK, fair enough. I think you’ve done a pretty good job of fleshing out the other side, but you’re right.