Government Asserting Right to Track People With GPS Until They Commit a Crime.

[JoeTheJuggler]

I guess the next obvious question is

Has there ever been a precedent where information with no expectation of privacy was ruled protected by the 4th when that information is collected en masse?

Maybe I'm being dense, or maybe it's not so obvious. . . the only thing I can think of like that is the stuff about scanning crowds (at Superbowl for example) and running images of faces through face recognition software to look for matches for people with warrants.

I don't think there's any 4th Amendment barrier to that.

Or are you thinking of something else?

 

[Dorian Gray]

You misrepresent what Joe said. You made a comment about this having something to do with the contents of the car. Joe correctly pointed out that it has nothing to do with the interior of the car. The bug is on the exterior. The information provided is data people have no expectation of privacy over.

Now you just posted wondering why he thinks its not incredibly dangerous. At no point in Joe's post did he comment on his acceptance of the concept as specified or in general.

Do I have the right to put something on your car, then? A sticker? A magnet? A camera or microphone? People have a reasonable expectation that nothing will be stuck to their cars. Please. Clearly unreasonable search.

 

[Dorian Gray]

Would there be any difference, in law, between planting a tracking device on a car and monitoring it via technology versus assigning a cop to stake out and follow the suspect? I'm pretty sure you don't need a warrant to assign a cop to tail someone. Why would you need one to do the same thing via machinery?

The cop can verify who the driver is, but a GPS machine can't. Oh, and following someone is fine, but attaching something to their car is unreasonable. People usually carry their cell phones with them, and make calls or texts. Why didn't the police subpoena cell phone records to track him?

The answer to that question should be very telling.

 

[BobTheCoward]

Do I have the right to put something on your car, then? A sticker? A magnet? A camera or microphone?

Possibly. I don't know.

 

[JoeTheJuggler]

Do I have the right to put something on your car, then? A sticker? A magnet? A camera or microphone? People have a reasonable expectation that nothing will be stuck to their cars. Please. Clearly unreasonable search.

Chalk marks?

Yes. Not an unreasonable search. I defy you to find the phrase "reasonable expectation that nothing will be stuck to their cars" in any Supreme Court decision. [ETA: That is, "reasonable expectation of privacy" is a valid legal test for defining the limits of the 4th Amendment. Your phrase is not a legal test even though it sounds similar.]

As for cameras and microphones, that would be the issue of inside vs. outside the car and expectations of privacy. And again, this case does not blur that distinction. Listening in to conversations inside a closed car would require a warrant. Tracking where that car goes (in public) does not.

 

[JoeTheJuggler]

The cop can verify who the driver is, but a GPS machine can't.

Are you suggesting a cop can tail a driver but not a vehicle without a warrant? Or worse--that he can only tail a vehicle if he first verifies who the driver is? (Checking the guy's ID would probably moot the entire idea of surveillance.)

ETA:

Why didn't the police subpoena cell phone records to track him?

The answer to that question should be very telling.

I don't see what's telling about that. They didn't have enough evidence to get a warrant to get the phone records. Besides, they were after his current and future behavior, not records of past behavior. But the same thing applies to a phone tap.

The question of whether or not warrantless tracking of a car using a device is legal is a separate question than the one you've asked.

 

[sarge]

I've missed too many intervening posts to address them individually, so pardon me if I don't hit some of your points precisely. It seems that many of you are dismissing the act of placing a device on a car as perfectly acceptable because it does not infringe ion a reasonable expectation of privacy.

I don't disagree - there is no reasonable expectation that a person would be free from direct observation while in public, in precisely the same way that a person has no reasonable expectation that a conversation will not be heard in public. For this reason, physically following a suspect would not require either probable;e cause or warrant.

Attaching a tracking device to the private property of a suspect should require probable cause sufficient to justify a warrant for the same reason that hiding a microphone inside the passenger compartment of a private auto does. Tailing a suspect is equal to physically eavesdropping, and attaching a tracking device is equal to using a bug.

 

[JoeTheJuggler]

I've missed too many intervening posts to address them individually, so pardon me if I don't hit some of your points precisely. It seems that many of you are dismissing the act of placing a device on a car as perfectly acceptable because it does not infringe ion a reasonable expectation of privacy.

I don't disagree - there is no reasonable expectation that a person would be free from direct observation while in public, in precisely the same way that a person has no reasonable expectation that a conversation will not be heard in public. For this reason, physically following a suspect would not require either probable;e cause or warrant.

Attaching a tracking device to the private property of a suspect should require probable cause sufficient to justify a warrant for the same reason that hiding a microphone inside the passenger compartment of a private auto does.

I agree with you up until the final paragraph. Why is a tracking device which is not a listening device and can only tell you where the car is going and nothing about what goes on inside the car like a listening device? You've said there is no expectation of privacy wrt where you drive your car. So why does a GPS tracker change that?

If the objection is about tampering with the car, then what about chalk marks on tires? (And I'd agree the police can't enter your garage and put on the GPS tracker. It's got to be done when the car is out in public.)

Tailing a suspect is equal to physically eavesdropping, and attaching a tracking device is equal to using a bug.

If you like I can cite case law that refutes this. It's not about the technology, but about the expectation of privacy.

ETA: For example, there are times when a microphone is completely legal, and there are times when even listening with just your ears is not.

 

[Dorian Gray]

Are you suggesting a cop can tail a driver but not a vehicle without a warrant? Or worse--that he can only tail a vehicle if he first verifies who the driver is? (Checking the guy's ID would probably moot the entire idea of surveillance.)

ETA:

I don't see what's telling about that. They didn't have enough evidence to get a warrant to get the phone records. Besides, they were after his current and future behavior, not records of past behavior. But the same thing applies to a phone tap.

The question of whether or not warrantless tracking of a car using a device is legal is a separate question than the one you've asked.

If they can't get a warrant to get the phone records, or even the cell tower usage data which is what I was referring to, then how can they have enough to attach things to the car? US vs. Karo has ruled that a seizure of one's property occurs once police attach anything to the property that meaningfully interferes with the property's use. United States of America v. Antoine Jonesruled that any evidence gathered that stemmed from an unconstitutional act (in this case the police's alleged illegal search and seizure by attaching a GPS device) must be excluded.

I'm not just appealing to emotion here. There is case law as well.

*Jazz hands*

 

[JoeTheJuggler]

If they can't get a warrant to get the phone records, or even the cell tower usage data which is what I was referring to, then how can they have enough to attach things to the car?

Because they don't need a warrant to attach a GPS tracker to a car since there is no reasonable expectation of privacy about where you drive your car. At least that is the question. The fact that they didn't have enough evidence to get a warrant to get phone records isn't relevant.

US vs. Karo has ruled that a seizure of one's property occurs once police attach anything to the property that meaningfully interferes with the property's use.

I've already addressed that. Attaching a GPS tracker simply does not meaningfully interfere with the car's use. In fact, that's the very idea. If it meaningfully interfered, it would not make a good surveillance technique since the person would then notice something is different and might not go about providing probable cause.

United States of America v. Antoine Jonesruled that any evidence gathered that stemmed from an unconstitutional act (in this case the police's alleged illegal search and seizure by attaching a GPS device) must be excluded.

This just begs the question. If I cede that attaching a GPS device was illegal, then you've already won the argument, so this case sheds absolutely no light on the point of contention.

 

[Dorian Gray]

Chalk marks?

Yes. Not an unreasonable search. I defy you to find the phrase "reasonable expectation that nothing will be stuck to their cars" in any Supreme Court decision. [ETA: That is, "reasonable expectation of privacy" is a valid legal test for defining the limits of the 4th Amendment. Your phrase is not a legal test even though it sounds similar.]

As for cameras and microphones, that would be the issue of inside vs. outside the car and expectations of privacy. And again, this case does not blur that distinction. Listening in to conversations inside a closed car would require a warrant. Tracking where that car goes (in public) does not.

Chalk marks are acceptable because they are not a search or seizure, they do not restrict a person's use of the property, they happen out in the open, the general public is aware of them and their purpose, they do not track movement of the car but the opposite, they are meaningless outside metered parking spaces, they are not concerned with the driver at all or where the driver goes once the driver leaves the vehicle or leaves in the vehicle .... get the picture?

And you seem to be suggesting that microphones and cameras could be attached to the outside of the car, since they are in public. Even though you should reasonably expect privacy inside the car or outside the car if no one was around, that privacy disappears when your supposedly legal external microphones and cameras are attached.

 

[Dorian Gray]

Because they don't need a warrant to attach a GPS tracker to a car since there is no reasonable expectation of privacy about where you drive your car. At least that is the question. The fact that they didn't have enough evidence to get a warrant to get phone records isn't relevant.

As I just freaking demonstrated by citing two court cases, lower courts have already determined that attaching a GPS tracker constitutes (see what I did there) an illegal search. You can search with a warrant, which implies strong evidence of the same type you'd need to subpoena phone records. Thus, having evidence is totally relevant.

I've already addressed that. Attaching a GPS tracker simply does not meaningfully interfere with the car's use. In fact, that's the very idea. If it meaningfully interfered, it would not make a good surveillance technique since the person would then notice something is different and might not go about providing probable cause.

I disagree. Oh yeah, and so do these court decisions.

This just begs the question. If I cede that attaching a GPS device was illegal, then you've already won the argument, so this case sheds absolutely no light on the point of contention.

Wrong again. It not only begs NO question, it reveals the answer. The parenthetical note was not my commentary, but was in fact part of the ruling, which is why Antoine Jones walked.

You're correct about me having already won the argument, though - unless and until the SCOTUS rules differently.

 

[JoeTheJuggler]

Chalk marks are acceptable because they are not a search or seizure, they do not restrict a person's use of the property, they happen out in the open,

Ditto GPS tracking.

the general public is aware of them and their purpose, they do not track movement of the car but the opposite,

They provide evidence of parking violations. Some of them are in fact meant to be unobtrusive and not noticed.

they are meaningless outside metered parking spaces, they are not concerned with the driver at all or where the driver goes once the driver leaves the vehicle or leaves in the vehicle .... get the picture?

Yes I understand that chalking a car tire isn't identical to attaching a GPS tracker, but for the purposes of the law, you have failed to distinguish them. Pertinent points are that they are not searches or seizures (since they monitor activity that is in plain view and in the public and about which there is no reasonable expectation of privacy), and that they do not interfere with the use of the car.

And you seem to be suggesting that microphones and cameras could be attached to the outside of the car, since they are in public.

No. What I have been saying as explicitly as I can is that the technology doesn't matter. It's the expectation of privacy. A microphone that only picked up sounds for which there was no reasonable expectation of privacy is constitutional. One that can pick up sounds for which there is a reasonable expectation of privacy would require a warrant.

Even though you should reasonably expect privacy inside the car or outside the car if no one was around, that privacy disappears when your supposedly legal external microphones and cameras are attached.

The bolded portion doesn't fit the law. I suggest you read Katz v. U.S. which is what established the expectation of privacy test.

Here's how Wiki summarizes the two parts of that test:

To meet the first part of the test, the person from whom the information was obtained must demonstrate that they, in fact, had an actual, subjective expectation that the evidence obtained would not be available to the public. In other words, the person asserting that a search was conducted must show that they kept the evidence in a manner designed to ensure its privacy.
The first part of the test is related to the notion "in plain view". If a person did not undertake reasonable efforts to conceal something from a casual observer (as opposed to a snoop), then no subjective expectation of privacy is assumed.

Just because no one is around while you stand outside the car doesn't pass the test for a reasonable expectation of privacy.
http://en.wikipedia.org/wiki/Expectation_of_privacy

ETA: In your example, a microphone attached to a car that can detect conversation inside a closed car would require a warrant. One that only detected outside conversation wouldn't destroy any privacy since there is no reasonable expectation of privacy. (Again, this assumes that somehow the mic doesn't work when the car is in a private space like a garage. I doubt that is credible, so the mic attached to a car would probably always require a warrant for that reason, but not because it destroys "privacy" of conversation outside a car located in a public place.)

 

[JoeTheJuggler]

As I just freaking demonstrated by citing two court cases, lower courts have already determined that attaching a GPS tracker constitutes (see what I did there) an illegal search.

And the government is pushing the case to the Supreme Court. Existing Supreme Court case law is as I've shown. So these lower courts are likely to be reversed.

You can search with a warrant, which implies strong evidence of the same type you'd need to subpoena phone records. Thus, having evidence is totally relevant.

I'm sorry, but this argument is nonsensical. Why not carry it to the next level and say that if the state has insufficient evidence for an indictment, they can't proceed to gather evidence at all? The question of whether or not attaching a GPS tracker is an illegal search is completely independent of whether or not there is sufficient evidence to get a wire tap or to seize phone records. It really is.

Wrong again. It not only begs NO question, it reveals the answer.

No one is arguing whether or not evidence obtained through an illegal search is admissible. The question is whether or not attaching a GPS tracker is an illegal search. So again, this case is not relevant to the question unless it is begging the question (assuming that attaching a GPS tracker is an illegal search).

 

[sarge]

Whether or not attaching a monitoring device to private property should not (and I believe ultimately will not) depend on an expectation of privacy. I concede that no person traveling a public highway has an expectation that his movements are protected from direct observation. The sticking point is the use of a monitoring device affixed to personal property without the consent of the owner of the property and in the absence of any probable cause. In the absence of probable cause, this is an unwarranted intrusion that should not survive scrutiny.

There is no fundamental difference between using a monitoring device to record conversations and using a monitoring device to track movements - even in the absence of a reasonable expectation of privacy.

 

[JoeTheJuggler]

According to the article in the OP, the government is appealing the case to the full District Court of Appeals to reverse the decision of a 3-judge panel (from that same court) which itself reversed the original conviction.

At this point, the only place this decision is binding is in D.C.

The article also notes another Supreme Court decision from 1983--U.S. v. Knots in which police affixed a radio tracking device to a vehicle without a warrant. The SCOTUS held that it was legal. In this case, they're trying to distinguish it by saying the GPS is somehow different, but the reasoning in Knotts was that the device could not provide information that wasn't in plain view (such as, for example, movement of a container of chloroform within the house).

 

[JoeTheJuggler]

Whether or not attaching a monitoring device to private property should not (and I believe ultimately will not) depend on an expectation of privacy. I concede that no person traveling a public highway has an expectation that his movements are protected from direct observation. The sticking point is the use of a monitoring device affixed to personal property without the consent of the owner of the property and in the absence of any probable cause. In the absence of probable cause, this is an unwarranted intrusion that should not survive scrutiny.

I sympathize with your position, but it's not in accordance with the case law.

If the attached device doesn't meaningfully interfere with operation of the vehicle and it only provides information for which there is no reasonable expectation of privacy, it is legal (according to the Knotts decision I just cited, which is the law of the land, the 3-judge panel's appellate case notwithstanding).

There is no fundamental difference between using a monitoring device to record conversations and using a monitoring device to track movements - even in the absence of a reasonable expectation of privacy.

There might not be any difference, but both have to be evaluated (for 4th Amendment purposes) using the Katz test for whether or not the information provided was reasonably expected to be private. Some conversations are protected by the reasonable expectation of privacy, and can't be monitored or recorded without a warrant. I don't know if there is a parallel with car movements. I suppose if you owned a lot of land you could move the car around on your private property and have a reasonable expectation of privacy (but IIRC the Katz decision also had something about "open fields" on private property not providing a reasonable expectation of privacy).

 

[JoeTheJuggler]

Here's the holding in the 1983 Knotts case (my bolding):

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. While respondent had the traditional expectation of privacy within a dwelling place insofar as his cabin was concerned, such expectation of privacy would not have extended to the visual observation from public places of the automobile arriving on his premises after leaving a public highway, or to movements of objects such as the chloroform container outside the cabin. The fact that the officers relied not only on visual surveillance, but also on the use of the beeper, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case. There is no indication that the beeper was used in any way to reveal information as to the movement of the chloroform container within the [460 U.S. 276, 277] cabin, or in any way that would not have been visible to the naked eye from outside the cabin. Pp. 280-285.

Note: the "beeper" is the radio tracking device that was attached to the vehicle.

ETA: This is a Supreme Court decision, Dorian Gray. Neither the appellate court nor the 3-judge panel from that court have the authority to overturn the SCOTUS, which is essentially what you're arguing in claiming victory. If the SCOTUS does nothing, the holding I just quoted is still the law of the land.

 

[BenBurch]

...

It is generally legal to physically listen in on a phone conversation without a warrant, and generally illegal to achieve the same result by employing a wire tap without a warrant.

...

BUT, you need no warrant to TRACE a call without listening to it.

 

[sarge]

It is the act of placing a device on a car that I believe is an unwarranted intrusion. In the absence of probable cause, there is no justification for the intrusion, and in the absence of justification, the police should not have the authority to place a tracking device on a private automobile.

There is only a difference of degree between the authority to place a tracking device on a car and the authority to place a tracking device on a persons clothing.

What would be the difference between the use of a device to track and report location and the use of a device to track and report a cars speed?