Oh, good! A New Constitutional Theory of Privacy!

[NotreDame05]

@villa

@spark240

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?

I’ll entertain this digression.

Your assumption the language in the Bill of Rights are “particularly deliberately vague” is a false assumption. They may appear vague to you but at the time the language for the amendments was selected and approved for submission as ratification, the words had meaning to those at the time and they understood what the amendments said and meant. Otherwise, according to you, James Madison and the House Committee on Style were choosing words, phrases, sentences, and paragraphs in which they had little to no idea what was being said or meant by their word selection. Furthermore, by your logic, and Congress was approving of amendments they could not understand, and neither could the public.

But, none of this is true because the words they chose did have meaning, a limited range of meaning, and the public understood these meanings and consequently, knew and understood what was being asserted, protected, and demanded by the Bill of Rights. Many of the rights, if not all of them, enshrined in the Bill of Rights have their genesis in the Magna Charter, the English Bill of Rights, and the English courts’ decisions expounding upon these rights, known as the English common law. Many if not most of the people at the time the Bill of Rights were submitted for ratification knew what was being talked about in the amendments because these were rights they were intimately familiar with as a result of their English heritage, specifically those sources which protected their rights as Englishmen.

So, it is incorrect to state the amendments were written vaguely, specifically written in such a manner as to defy its meaning being known to the public and future generations.

[villa]

@NotreDame05

So, it is incorrect to state the amendments were written vaguely, specifically written in such a manner as to defy its meaning being known to the public and future generations.

Not what I said.

[NotreDame05]

@Hamlet

@NotreDame05

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.

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.

Quite obviously, I do disagree with the court on this, as my prior remark indicates. Furthermore, I do not think I have presented their arguments in an unfair or coherent manner. I think my example comes squarely within the reasoning of their decision when the stakeout involves one of “surveillance” and this surveillance reveals information.

The rationale used in this case would be the same for the stakeout involving surveillance. What a reasonable person expects another might actually do is the standard relied upon by the court in this decision and they said, “the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.” Similarly, the likelihood a “stranger” would stakeout for let’s say 24 hours a day for 28 days, and in this process obtain information about the person they are staking out, is equally “effectively nil.” Therefore, this would be a search.

If law enforcement officers came to me and inquired whether they’d need a warrant to stakeout an address for 24 hours a day for 28 days, and in doing so they will acquire some information, I would advise them this would be a search based on this opinion and a warrant is probably necessary. Why? Because this scenario does come within the reasoning of this decision. The fact the court may later on split hairs and distinguish its decision from such an example does not change the fact this example logically is covered by the rationale and reasoning of the decision.

I am not treating this decision unfairly or misstating anything about the decision, or dismissing it on this basis. Not sure if your last sentence was directed towards me or not but it certainly seems like it.

[NotreDame05]

@villa

@NotreDame05

So, it is incorrect to state the amendments were written vaguely, specifically written in such a manner as to defy its meaning being known to the public and future generations.

Not what I said.

It is certainly what your reasoning suggested. What else did you suggest by stating, “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?”

[Hamlet]

@NotreDame05

Quite obviously, I do disagree with the court on this, as my prior remark indicates. Furthermore, I do not think I have presented their arguments in an unfair or coherent manner. I think my example comes squarely within the reasoning of their decision when the stakeout involves one of “surveillance” and this surveillance reveals information.

Here is what you said: “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.” The court, however, specifically did not say that at all. In fact, it went out of its way to NOT reach that conclusion. And they explained, once again, that they found the GPS tracking to gather information that is “not exposed to the public”, as you concluded.

You drew your own conclusions, which is fine. Have at it. But at least make sure that you identify them as YOUR conclusions based on the court’s ruling, especially when the court went out of its way to specifically not reach your conclusion. This will save us all from being frustrated.

[MikeF]

Searches and seizures (unreasonable) are limited by the 4th. Since nothing is being seized nor is anyone’s freedom to move about restricted, the only argument can be that this is an unreasonable search. Someone above doesn’t even want to be followed without a warrant. So here I am in my patrol car and some shifty looking character is wandering around your neighborhood at night. Maybe I’ll turn of my headlights and keep an eye on him. No, wait! I need a warrant to follow him. Oh, well. I’ll go get a doughnut and some coffee. That’s obviously ridiculous and, even if you want to call it a search, its not unreasonable. You’d be up in arms (Well, maybe not. While you were so busy worrying about your 4th Amendment rights Big Brother came and trampled your 2nd Amendment rights) if the cops weren’t doing their job by investigating suspected criminal activity. And that may mean following them, possibly 24/7 for days at a time, to develop the probable cause necessary to arrest them
along with sufficient evidence to convict them.

Marley23 - how high of a threshold would you demand before the state “spies” on someone? What constitutes spying? And who determines if that threshold has been met? This is all great academic fun but there is a real world out there.

[NotreDame05]

@Hamlet

@NotreDame05

Quite obviously, I do disagree with the court on this, as my prior remark indicates. Furthermore, I do not think I have presented their arguments in an unfair or coherent manner. I think my example comes squarely within the reasoning of their decision when the stakeout involves one of “surveillance” and this surveillance reveals information.

Here is what you said: “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.” The court, however, specifically did not say that at all. In fact, it went out of its way to NOT reach that conclusion. And they explained, once again, that they found the GPS tracking to gather information that is “not exposed to the public”, as you concluded.

You drew your own conclusions, which is fine. Have at it. But at least make sure that you identify them as YOUR conclusions based on the court’s ruling, especially when the court went out of its way to specifically not reach your conclusion. This will save us all from being frustrated.

I can see the potential confusion with the phrase, “According to this decision,” which I did not perceive before. So, for future purposes, I will say, “Based on the court’s ruling, here is what I understand an inference to be,” or if my habit dies hard, you will hopefully oblige me with your patience, knowing what I am in fact saying, until such time I write in a manner you find not so frustrating?

[villa]

@NotreDame05

@villa

Not what I said.

It is certainly what your reasoning suggested. What else did you suggest by stating, “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?”

It was written in language that did not limit it to a particular, current set of prohibitions. Instead it was, in certain parts, deliberately written to include an evolving standard and those at the time fully understood it to include an evolving standard. It could have been definitive and proscriptive. That it wasn’t must be presumed to have a purpose, and the most logical purpose, looking to the text, is that the framers intended the scope of protected activity to reflect evolving societal thoughts, rather than simply a pre-Revolutionary British common law zone of protection frozen in time for perpetuity.

[Hamlet]

@NotreDame05

I can see the potential confusion with the phrase, “According to this decision,” which I did not perceive before. So, for future purposes, I will say, “Based on the court’s ruling, here is what I understand an inference to be,” or if my habit dies hard, you will hopefully oblige me with your patience, knowing what I am in fact saying, until such time I write in a manner you find not so frustrating?

I am nothing if not magnanimous. I will endeavor to, if not overlook, then kindly correct, the flaws in your communication skills in the future.

[NotreDame05]

@Hamlet

@NotreDame05

I can see the potential confusion with the phrase, “According to this decision,” which I did not perceive before. So, for future purposes, I will say, “Based on the court’s ruling, here is what I understand an inference to be,” or if my habit dies hard, you will hopefully oblige me with your patience, knowing what I am in fact saying, until such time I write in a manner you find not so frustrating?

I am nothing if not magnanimous. I will endeavor to, if not overlook, then kindly correct, the flaws in your communication skills in the future.

Touche…

[Bricker]

The government has petitioned for an en banc rehearing of this decision:

@The United States

On August 6, 2010, a panel of this Court held that the government’s warrantless monitoring of a GPS tracking device in this case was “prolonged” and thus violated the Fourth Amendment. Maynard, slip op. at 32. The panel’s decision is inconsistent with controlling Supreme Court precedent, see United States v. Knotts, 460 U.S. 276 (1983); United States v. Karo, 468 U.S. 705 (1984), and with decisions of every other federal appellate court to have addressed this issue. … Moreover, the panel’s decision is inconsistent with prior case law from this Court which allowed the electronic monitoring of a package located within a vehicle and exposed to public view. United States v. Gbemisola, 225 F.3d 753, 758-59 (D.C. Cir. 2000). Finally, the panel’s decision raises enormous practical problems for law enforcement. The decision leaves unresolved precisely when the monitoring of a GPS device becomes a “search” under the Fourth Amendment, and implicitly calls into question common and important practices such as sustained visual surveillance and photographic surveillance of public places. Thus, rehearing en banc is “necessary to secure and maintain uniformity” of this Court’s decisions, Fed. R. App. P. 35(b)(1)(A), and because the panel’s decision presents an issue of “exceptional importance.”

[Mozart1220]

Doesn’t the 4th protect "persons, papers, and PROPERTY? Wasn’t attaching a device to the car (Property) without a warrent akin to a hidden camera in a home or an illegal phone tap?

[villa]

@Mozart1220

Doesn’t the 4th protect "persons, papers, and PROPERTY? Wasn’t attaching a device to the car (Property) without a warrent akin to a hidden camera in a home or an illegal phone tap?

No, because your hidden camera is in a home, and a phone conversation has a presumption of privacy about it.

[Bricker]

@Mozart1220

Doesn’t the 4th protect "persons, papers, and PROPERTY? Wasn’t attaching a device to the car (Property) without a warrent akin to a hidden camera in a home or an illegal phone tap?

Didn’t read the thread?

Asked in this post:

@SteveG1

A house is also private property. Why couldn’t “they” secretly plant a camera in your house too?

Answered two posts later:

@jtgain

I think that the difference is in your expectation of privacy. Inside your home you rightfully expect things to remain private.

Where you travel in your car, however, is usually open to public view. Either from neighbors watching you leave or from the cars behind and in front of you.

[scabpicker]

I don’t know if its relevant to this particular case or to the constitutional question at hand, but the GPS device has a capability that the agents. neighbors, etc. don’t have. It can track your movements on private land. Granted, it would have to be a big parcel of land for this to be meaningful, but I know people who have ranches with several square miles you can’t see from any public area other than the sky.

[villa]

I believe, though I can’t remember the case law back up, you don’t have an expectation of privacy if you can be observed from the air.

[Mozart1220]

@Bricker

@Mozart1220

Doesn’t the 4th protect "persons, papers, and PROPERTY? Wasn’t attaching a device to the car (Property) without a warrent akin to a hidden camera in a home or an illegal phone tap?

Didn’t read the thread?

Asked in this post:

Answered two posts later:

@jtgain

I think that the difference is in your expectation of privacy. Inside your home you rightfully expect things to remain private.

Where you travel in your car, however, is usually open to public view. Either from neighbors watching you leave or from the cars behind and in front of you.

But your car is PROPERTY which is mentioned in the 4th amendment. Plus, I would argue that if a home is allowed as secure from spying, my car is an extention of my home, as a foriegn diplomat’s limo is an extention of his “country”.

[villa]

@Mozart1220

But your car is PROPERTY which is mentioned in the 4th amendment. Plus, I would argue that if a home is allowed as secure from spying, my car is an extention of my home, as a foriegn diplomat’s limo is an extention of his “country”.

Argue it all you want. It’s been tried multiple times and failed. It gets interesting when you live in your car, or when you drive a mobile home, but the argument that it is an extension just doesn’t fly in court.

Also, if you grow weed in your windows, the cop doesn’t need a warrant. It’s in plain view. As is a car when not sat in a garage.

[Bricker]

@Mozart1220

But your car is PROPERTY which is mentioned in the 4th amendment. Plus, I would argue that if a home is allowed as secure from spying, my car is an extention of my home, as a foriegn diplomat’s limo is an extention of his “country”.

In no particular order:

1. A foreign diplomat’s car is not an extension of his country, any more than his embassy is.

2. Your car is not an extension of your home, no matter what you would argue. The Supreme Court has a ton of cases on cars and how they may be seized and searched. Not a single one of them asserts that your car is an extension of your home. See, e.g., Chimel v. California and Carroll v. US for starters.

3. Yes, your car is property, and yes, property is mentioned in the Fourth Amendment. This means only that the goverment cannot seize or search your car unreasonably.

[Damuri_Ajashi]

@Bricker

Just what this country needs.

The DC Circuit recently pondered the case of Antoine Jones. Jones, who owned a night club in Washington DC, had a GPS device affixed secretly to his car by police. Over the course of a month, police were able to show that he ended up in the same places as his alleged conspirators.

On appeal, Jones complains that the police should have gotten a warrant before attached a GPS to his car. He says that the GPS violates his reasonable expectation of privacy, as defined in United States v. Katz, 389 U.S. 347 (1967).

The government argued that Katz’s reasonable expectation of privacy was the correct standard, but that Jones didn’t have any reasonable expectation of privacy in where he was driving, because when you drive, you’re exposed to the public. The places you drive are not pieces of information you may expect to keep private. The government pointed to a pre-GPS case called United States v. Knotts, 460 U.S. 276 (1983). In Knotts, police placed a directional beeper in a load of chloroform and used the signal to track down defendant’s travels to a drug lab. The Supreme Court upheld that use, saying that:

Monitoring the beeper signals did not invade any legitimate expectation of privacy on respondent’s part, and thus there was neither a “search” nor a “seizure” within the contemplation of the Fourth Amendment. The beeper surveillance amounted principally to following an automobile on public streets and highways. A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.
.
.
.
A police car following Petschen at a distance throughout his journey could have observed him leaving the public highway and arriving at the cabin owned by respondent, with the drum of chloroform still in the car. This fact, along with others, was used by the government in obtaining a search warrant which led to the discovery of the clandestine drug laboratory. But there is no indication that the beeper was used in any way to reveal information as to the movement of the drum within the cabin, or in any way that would not have been visible to the naked eye from outside the cabin. Just as notions of physical trespass based on the law of real property were not dispositive in Katz v. United States, 389 U.S. 347 (1967), neither were they dispositive in Hester v. United States, 265 U.S. 57 (1924).

We thus return to the question posed at the beginning of our inquiry in discussing Katz, supra; did monitoring the beeper signals complained of by respondent invade any legitimate expectation of privacy on his part? For the reasons previously stated, we hold it did not. Since it did not, there was neither a “search” nor a “seizure” within the contemplation of the Fourth Amendment.

But the DC Circuit has a different idea.

They say that even though an individual movement may be public, the sum total of the movements is not – that there is a mosiac theory of the Fourth Amendment which says that an individual piece of information may have no expectation of privacy, and another also no expectation of privacy, and still another no expectation of privacy… but when they’re all put together, there is suddenly an expectation of privacy.

Now, this kind of analysis makes sense if you’re talking about, say, classified information. But it’s not what the Fourth Amendment says.

Is it?

Its bullshit. If those cops could legally have tailed that guy through the city streets or tailed him by helicopter, then why does it matter that they did so electronically?