Yes, I assume that everyone here knows that an assertion of fact (e.g. “the totality of a large number of pieces of information is a new and distinct piece of information in itself”) either is or is not true. Somebody stop me if I’m moving too fast for the class. :rolleyes:
State documents and property, secret or otherwise, are clearly “papers” or “effects” as those terms are used in the Fourth Amendment. The notion that mosaic analysis is applicable to some “papers” and “effects” but not to others, advanced for no evident purpose other than to support a given set of outcomes convenient to the government, invites the question of whether the advocate of the distinction takes sugar with his porridge.
If that is true, then it places us in the curious position of the legislature being able to amend the Constitution by simply majority vote, instead of the two-thirds of each house / three-fourths of the states contemplated by the Constitution. And it places use in the curiouser position of a single state legislature being able to set a high water mark which others must follow.
I still don’t understand how the police can come onto private property without a warrant and plant the GPS device.
They shouldn’t be able to mess with the car, not merely because it decreases the value but because it is private property.
I have no trouble with the idea that one has no reasonable expectation of privacy on the public roads. That’s clear. Ergo, a team of special agents assigned to follow me 24/7 is okay, a GPS device planted without a warrant is not.
If they want to follow me around, that’s fine. The instant they trespass onto my private property to implement a trace of my movements, that is a violation of my right to be secure against unreasonable searches and seizures.
Had I said that it was the final arbitrer, you might have a point. Luckily I didn’t. Surely you don’t think that legislative imput, including reaction to new technology and its use in surveillance, has no role whatsoever to play in the determination of reasonable expectation. Do you?
The 7th Circuit has determined that attaching a GPS to a vehicle isn’t a search under the 4th Amendment because it only gives information that “one has no reasonable expectation of privacy” to. There was also a discussion earlier in the thread, about how the Supreme Court has rejected this “trespass” idea for determining whether something or not is a search.
Or course, New York has rejected that rationale and, IIRC, found that the New York Constitution requires a warrant before they can legally affix the GPS to your car. It will certainly be interesting to see how this works out.
No, I agree that “no role whatsoever” is probably a bit harsh. A single state legislature’s determination, alone, is not going to tip a balance one way or another.
Agreed, and also there is another level of craziness here - the fact it is about a car. Jurisprudence about cars is kind of a mixed bag as well.
The Fourth is another part of the constitution where the framers intentionally included ambiguity. Had they intended reasonableness to be judged on what was considered reasonable at the time of writing (or similarly cruel or unusual) they could have listed criteria. That they didn’t is significant evidence the intent of the framers, as expressed in the text of the document, was an evolving standard of privacy that could grow with society’s concept of that.
Is there any Constitutional limit to what the police can attach to your car? As posited previously, can they attach an Obama bumper sticker without your permission?
I agree, this is not an issue of privacy or trespass. It is respect for personal property and the rights of ownership. It violates my right to be secure in my possessions by tampering with my property without my permission or a warrant by a court.
More questions; If I discover the GPS beeper, can I destroy it? Can I operate a jammer to prevent reception of the GPS signal? Can I attach the beeper to a helium ballon and release it?
I say, yes to all three questions. If the police are exercising their authority to observe my public activities without a warrant, then I am free to conceal my activities by disabling their devices. This is not obstruction of justice, because probable cause has not been reviewed by a court. If they do not have to demonstrate probable cause to observe me in public, I cannot be restrained from interfering with their observation (so long as my actions otherwise obey the law).
Well, I think my objection to the decision is, to use your lingo, “more nuanced” than merely focusing upon the parameters of a seemingly amorphous standard of “reasonable expectation of privacy.” I do not think the total, the sum, of what law enforcement did here constitutes as a search for 4th Amendment purposes. The first day it is probably and likely not a search, as the opinion suggests, but the total of 27 days is a search, with the implication each and everyday is not a search.
To me, we do not get a search from adding up all the individual days in which non-search police conduct transpired. Each individual day the police conduct is not a search, but adding up all the non-search police conduct equals a search.
This opinion also provides no instruction as to how many or what number of police non-searches will eventually result in a search for 4th Amendment purposes. I have no idea when a search comes into existence based on this rationale, other than to say 4 weeks apparently will do it. I suspect I am not the only one in the legal field reading this opinion and scratching their heads in amazement as they pose the query, “Where the heck is the line drawn?”
Perhaps this explains why the Court has never, to my knowledge, used the “mosaic theory” when it comes to analyzing the 4th Amendment.
Finally, I am not quite convinced the D.C. Court of Appeals applied the correct legal standard.
From the Kyllo decision.
We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, constitutes a search–at least where (as here) the technology in question is not in general public use.
Takin this approach, and Kyllo involved the use of technology, the information obtained by the GPS could have “otherwise been obtained without physical intrusion into a constitutionally protected area.” In other words, contrary to the D.C. Circuit’s statements, it seems to me the government did invoke the correct approach to analyzing the facts when they said, “The Government argues Jones‘s movements over the course of a month were actually exposed to the public because the police lawfully could have followed Jones everywhere he went on public roads over the course of a month…” Law enforcement could have “otherwise obtained” the same information “without physical intrusion” by simply following the person for a day, two days, or the accumulation of 30 days.
So it is not merely an expectation of privacy which is the sole inquiry here, but the information obtained and how. If the information is private, i.e. the information “could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” then there is a potential 4th Amendment problem.
I also add, driving a car in public, to destinations in public, has never been held to be a “constitutionally protected area.” Rather, the decision in Knotts and the language from the Katz decision makes it very clear it is not a “constitutionally protected area” by the very fact it is in public.
The analysis the court used was, again, about the expectation of privacy. People don’t have an expectation of privacy in one trip along public ways where they can be seen by pretty much anyone. But every trip they take for a month? I think, given the responses in this thread and real life, that most people in the US would agree that would be an invasion of their expectation of privacy. Which is why I asked about your perception of what people expect.
The simple answer would be “when a person has a reasonable expectation of privacy”. If you are looking for certainty in legal standards, say down to the precise hour it happens, I would politely suggest that perhaps the study/application of law is not for you. “Fourth Amendment cases must be decided on the facts of each case, not by extravagant generalizations.” But I agree, it certainly is a highly amorphous standard that does not lend itself well to precise defintion.
It is intriguingly original.
As the court in this case said: "That argument relies implicitly upon an assumption rejected explicitly in Kyllo, to wit, that the means used to uncover private information play no role in determining whether a police action frustrates a person‘s reasonable expectation of privacy; when it comes to the Fourth Amendment, means do matter. See 533 U.S. at 35 n.2 (The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment). The court goes on to point out that it would be highly unlikely, and nigh but never done, to have that kind of successful surveillance on a person without the aid of
I’m not saying the court in this case got it right. The standard is clearly amorphous and difficult to apply. But it also raises issues that are worthy of discussing. Such as a person’s expectation of privacy, and the reasonableness of that expectation, does, in reality, change based on the invasiveness, the length of surveillance, and a host of other factors. I think recognizing that there is a scale of reasonableness of expectations isn’t necessarily a bad thing.
This seems to be a pretty silly discussion, when the government is arguing in other cases that they can access your cell phone location without a warrant. The phone record some location data automatically and the government argues that it is analogous to pin registers, which they don’t need a warrant to access.
To me tracking the location of my phone seems a lot more intrusive than tracking the location of my car. Not only am I carrying a tracking device on me, but I’m paying for it! Plus the phone company keeps the information for months, so the police can track where you were using the phone months ago.
If people do not have an expectation of privacy in one trip along public highways, where they can be seen by pretty much anyone, and each individual trip they take for a month along public ways, where they can be seen by pretty much anyone, quite simply does not lead to the conclusion the court draws here, of an expectation of privacy in the aggregate, although the individual trips themselves do not have an expectation of privacy.
They cannot have a reasonable expectation of privacy in what they expose to the public and one trip or a hundred trips are all exposed to the public.
I find this very intriguing within the context of the 4th Amendment because the Court has emphasized the importance and need for clear rules so law enforcement can know what is permissible and what is not. While I can agree with the general principle of, “Fourth Amendment cases must be decided on the facts of each case, not by extravagant generalizations,” this really does not address the point this decision will have law enforcement guessing at what point their investigation becomes a search. Indeed, Justice Scalia, in Kyllo, rejected some competing approaches based on the fact it was not a “workable accommodation between the needs of law enforcement and the interests protected by the 4th Amendment.”
As for your comments of what I am expecting to find in legal standards, I do not think I said anything supporting the notion of “certainty.” Thanks for your strawman argument, and I am most appreciative of your use of a strawman argument to hint to the fact perhaps I picked the wrong vocation. I know, I know, you phrased your wording in a conditional as a hypothetical. Thanks for being so polite in doing so.
Well, J. Scalia, interestingly enough, in Kyllo did not predicate the reasonableness of the expectation of privacy involved in the case on any notion of whether society was prepared to recognize this expectation as reasonable. The reason why J. Scalia rejected the argument the information could be obtained by other means is because the interior of a home, and information about it, is private, and this privacy has “deep roots in the common law” and both were considered private from the government at the time the 4th Amendment was adopted.
This cannot be said regarding driving a car, in public, visiting places in public. It is interesting the court refers to Kyllo frequently, but Kyllo did not rely upon the probabilistic approach in analyzing the 4th Amendment claim, whereas this court did. Rather, Kyllo focused on the area in question, determined the area was “private” and therefore, enjoyed privacy from the government, and this privacy long existed in the common law, and was the original understanding when the 4th Amendment was ratified. Following this approach from Kyllo, which this court does not do, driving a car on a public street and visiting establishments in public is not “private” and does not entail privacy from the government, with any “deep roots” in the common law or when the 4th Amendment was adopted.
Which brings me back to what J. Scalia did say. “We think that obtaining by sense-enhancing technology any information regarding the interior of the homethat could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, constitutes a search–at least where (as here) the technology in question is not in general public use.”
It is the “interior of the home” which is pivotal in understanding Kyllo, and the fact the information about the interior of the home "could not otherwise have been obtained without physical “intrusion into a constitutionally protected area…” Here, we are not talking about a private area such as that of the “interior of a home,” but rather events and things done in public. In addition, no “physical intrusion” is present because, once again, we are talking about what is being done in public.
The Kyllo decision does not help the D.C. Court of Appeals’ argument.
Do the police need a warrant for a stakeout? (Mind you, everything I know about the law and the police I’ve learned from TV and the SDMB.) My assumption is that they don’t. If they don’t, how is an extended stakeout different than a tracking device? Is there some point at which a stakeout becomes an invasion of privacy?
Well, that sounds like a lot of amendments. I think we ought to be able to cover all possible issues (of appropriately Constitutional weight) with a lot fewer than that, if they’re carefully constructed. That’s why the amendment process is difficult.
But yes, I think the intent was that as needs became clear over the years, new amendments would be added, to clearly state the additional rights and protections which most of us agree we ought to have, rather than relying on inferences and interpretations. That’s why there is a process for amendment.
So why was the language of the Bill of Rights in particular deliberately vague and comparative if not to rely on interpretations in the face of shifting societal expectations?
Well, according to this decision, if the “stakeout” is one involving surveillance for 24 hours a day for 28 days, then yes they need a warrant. According to this court, there is a point where the stakeout becomes a search, although they fail to tell us when this occurs. The opinion does indicate one stakeout would not be a search, and perhaps neither a second one, and any individual stake among 28 stakeouts would not be a search, but all of them taken together constitutes as a search.
OK. Given that much of the language is, I agree, clear and specific, doesn’t that under normal canons of construction suggest that where the language is open to interpretation, it was a deliberate choice for it to be that way? And therefore words like “unusual” and “unreasonable” were intentionally included to allow evolution without the need for amendment as society changed?
You might want to reread the opinion because they dealt precisely with this issue, and, oddly enough, it didn’t sound anything like how you portray it.
*"The Government would have us abjure this conclusion on the ground that [Jones‘s] argument logically would prohibit even visual surveillance of persons or vehicles located in public places and exposed to public view, which clearly is not the law. We have already explained why Jones‘s argument does not ―logically … prohibit much visual surveillance: Surveillance that reveals only what is already exposed to the public — such as a person‘s movements during a single journey — is not a search. See Knotts, 460 U.S. at 285.
Regarding visual surveillance so prolonged it reveals information not exposed to the public, we note preliminarily that the Government points to not a single actual example of visual surveillance that will be affected by our holding the use of the GPS in this case was a search. No doubt the reason is that practical considerations prevent visual surveillance from lasting very long. [fn removed] Continuous human surveillance for a week would require all the time and expense of several police officers, while comparable photographic surveillance would require a net of video cameras so dense and so widespread as to catch a person‘s every movement, plus the manpower to piece the photographs together. Of course, as this case and some of the GPS cases in other courts illustrate, e.g., Weaver, 12 N.Y.3d at 447, 459 (holding use of GPS device to track suspect for 65 days was search); Jackson, 76 P.3d 261–62 (holding use of GPS device to track suspect for two and one-half weeks was search), prolonged GPS monitoring is not similarly constrained. On the contrary, the marginal cost of an additional day — or week, or month — of GPS monitoring is effectively zero. Nor, apparently, is the fixed cost of installing a GPS device significant, …
This case does not require us to, and therefore we do not, decide whether a hypothetical instance of prolonged visual surveillance would be a search subject to the warrant requirement of the Fourth Amendment. 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. We have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.476 U.S. 227, 238 n.5 (1986) (quoting United States v. Karo, 468 U.S. 705, 712 (1984)); see also City of Ontario v. Quon, 130 S. Ct. 2619, 2629 (2010) (―Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations). By the same token, we refuse to hold this ―search is not a search, Kyllo, 533 U.S. at 32, merely because a contrary holding might at first blush seem to implicate a different but intuitively permissible practice. 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). Instead, just as the Supreme Court in Knotts reserved the lawfulness of prolonged beeper surveillance, we reserve the lawfulness of prolonged visual surveillance."*
Now, it is entirely possible to disagree with the court on this, and other points it raised. Heck, I tend to agree with you.
But I do find myself getting frustrated with the misstatements and trite dismissals of the opinion without even presenting its arguments in a fair, coherent manner.