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

[JoeTheJuggler]

Basically the panel's logic was that even though all the movements of the vehicle were something that a regular tail could have accomplished, it was unlikely that a single stranger would observe all the movements over that period of time, and thus there was a reasonable expectation of privacy even though the movements were in plain view.

That argument would be a significant departure from the case law. (In Knotts, the court said it doesn't matter that the technology could enhance the ability of law enforcement to track the vehicle as long as it would have been possible for them to track the vehicle without it--that is, as long as the information they're getting was only information they could have gotten without breaking into the house or whatever.)

Someone on this thread pointed out that cops working in shifts could indeed have tracked all the movements of the vehicle over a month's time even without the GPS.

I predict Jones' conviction will be restored by the full appellate court, and this case won't be taken up the SCOTUS.

 

[sarge]

We probably all should have read that document first to avoid debating irrelevant issues rather than rely on INMR's description of the case. (See my previous post. The cops had a warrant to install and monitor the GPS device. The issue is whether or not prolonged tracking of the vehicle's movements in public are a violation of the 4th Amendment.

This is (emabarrasingly, for me) pertinent information that I was unaware of. If the cops had a warrant to install the GPS device, then there does not seem to be a remaining reasonable objection to using a GPS device soley to track the movements of a suspect. My entire objection to the use of a GPS device was predicated on the physical placing of such a device on private property in the complete absence of probable cause.

I still object to the notion that cops may place a device on private property without first satisfying a probable cause standard.

 

[JoeTheJuggler]

This is (emabarrasingly, for me) pertinent information that I was unaware of.

Don't feel bad. I also foolishly relied on INRM's description:

He was tracked for an entire month without a warrant via a GPS device attached to his vehicle.

At any rate, I could see from the article that it was right to assume that the attaching or placing was legally done, since that wasn't what was at issue.

The issue is the tracking.

Even the 3-judge panel would have had no complaint if the cops only used it to track one journey. So the issue is strictly the prolonged use. Given that they had a warrant to track, and based on Knotts they only needed a warrant to place the device (or use some cleverness such as attaching the device to something else that the defendant would himself place in the vehicle--but I presume the sought to avoid the complications of possibly tracing that something else beyond the area of plain view), the only issue is whether or not prolonged use of a tracking device somehow creates a reasonable expectation of privacy wrt to information for which the courts have made clear there is no reasonable expectation of privacy (i.e. the movement of a vehicle in public).

 

[sarge]

The issue is the tracking.

Even the 3-judge panel would have had no complaint if the cops only used it to track one journey. So the issue is strictly the prolonged use. Given that they had a warrant to track, and based on Knotts they only needed a warrant to place the device (or use some cleverness such as attaching the device to something else that the defendant would himself place in the vehicle--but I presume the sought to avoid the complications of possibly tracing that something else beyond the area of plain view), the only issue is whether or not prolonged use of a tracking device somehow creates a reasonable expectation of privacy wrt to information for which the courts have made clear there is no reasonable expectation of privacy (i.e. the movement of a vehicle in public).

I can't imagine why the tracking was problematic once the placing of the device was authorized. As has been discussed, actually following the vehicle would have provided the same evidence as using the GPS device. It does not seem to be equal to the limits sometimes placed on phone taps, where investigators must stop listening after it becomes clear that no incriminating conversations are taking place. The car is traveling in public, the device is authorized by warrant, and the operator has no reasonable expectation of privacy.

 

[JoeTheJuggler]

I can't imagine why the tracking was problematic once the placing of the device was authorized. As has been discussed, actually following the vehicle would have provided the same evidence as using the GPS device. It does not seem to be equal to the limits sometimes placed on phone taps, where investigators must stop listening after it becomes clear that no incriminating conversations are taking place. The car is traveling in public, the device is authorized by warrant, and the operator has no reasonable expectation of privacy.

I agree with everything you say. That's why I think the 3-judge panel's decision was erroneous (and likely to be reversed by the full appeals court) and it's also why INRM's OP was wrong in several respects. . .but mostly the very first one I commented on. Nothing about the government's position blurs the distinction between inside and outside. Indeed, the very legal test depends a lot on the information gathered being what is in plain view.

If anything, the reasoning of the panel is more about how broad search warrants can be. Mostly, it's not like on TV where you can get a warrant to search a house for anything incriminating. You've got to be pretty specific.

But again, in this case, the only thing the warrant may have been required for was breaking into a garage and planting the GPS device. The tracking was all information that was in plain view (and could have been gathered by cops staking out and tailing the vehicle for a month).

 

[Rougarou]

SC decisions are easy to find. You can read a Wiki summary or you can see the actual text of the decisions.

For example:

U.S. v. Karo: Wiki or text of decision

U.S. v. Katz:

wiki or decision


Kyllo v. U.S.
wiki or decision

U.S. v. Knotts
Wiki just has a stub decision

The 3-judge appellate court panel decision in the case at hand, U.S. v. Antoine Jones, is linked to from the Wired article mentioned in the OP.

Thanks, although I thought maybe you had knew of a case involving the remote recording of someone in public (out in the open) but physically out of earshot. Still, the Katz v. United States ruling is pretty much what you and I were talking about.

The case, or at least the wording of Harlan's concurrence, makes a physical enclosure necessary to establish expectation of privacy. My understanding that hiding a microphone or using an amplified mic to record someone across the field is probably, as you said, more of a state legal issue rather than a federal one.

 

[JoeTheJuggler]

The case, or at least the wording of Harlan's concurrence, makes a physical enclosure necessary to establish expectation of privacy.

Concurrent decisions aren't binding.

But it's clear that many of these decisions place a premium on being in the home. (Being in a public restaurant isn't the same, though, as being in a stall in a public restroom.) IIRC, the requirement is at least taking some positive action to conceal the information. For example, I suspect if two people were in public, but were speaking very quietly and putting their hands over their mouths, the courts would see that as an attempt to conceal that information and even if a listening device could detect what they say, that information would be inadmissible because they had a reasonable expectation of privacy.

 

[JoeTheJuggler]

Thanks, although I thought maybe you had knew of a case involving the remote recording of someone in public (out in the open) but physically out of earshot.

It wasn't about audio, but the Knots decision pretty much said that enhancing technology doesn't matter, if the information was in public (in plain view).

For purposes of tracking a car, the reason for using the beeper is so that the people doing the tracking could remain more easily hidden. So I think one of those mics with parabolic reflector things would be the equivalent. Your car could be monitored by another car tailing you. The fact that no car is tailing you, doesn't create a reasonable expectation of privacy as to the whereabouts of your car. Similarly one could hear the conversation if one were standing near them, so there is no reasonable expectation of privacy.

 

[Rougarou]

Concurrent decisions aren't binding.

But it's clear that many of these decisions place a premium on being in the home. (Being in a public restaurant isn't the same, though, as being in a stall in a public restroom.) IIRC, the requirement is at least taking some positive action to conceal the information. For example, I suspect if two people were in public, but were speaking very quietly and putting their hands over their mouths, the courts would see that as an attempt to conceal that information and even if a listening device could detect what they say, that information would be inadmissible because they had a reasonable expectation of privacy.

For purposes of tracking a car, the reason for using the beeper is so that the people doing the tracking could remain more easily hidden. So I think one of those mics with parabolic reflector things would be the equivalent. Your car could be monitored by another car tailing you. The fact that no car is tailing you, doesn't create a reasonable expectation of privacy as to the whereabouts of your car. Similarly one could hear the conversation if one were standing near them, so there is no reasonable expectation of privacy.

I think we're on the same wavelength for the most part, as far as the listening device goes. If you and I intentionally walked across the field, away from the other people in the park, in order to have a private conversation, wouldn't we have a reasonable expectation of privacy? Not visual privacy--people can still see us--but, audible privacy. If someone walked up, we would stop talking about the private matter.

Still, you have to draw lines somewhere. Maybe you just say public is public and leave it up to the individual to ensure his own privacy out in public.

 

[JoeTheJuggler]

I think we're on the same wavelength for the most part, as far as the listening device goes. If you and I intentionally walked across the field, away from the other people in the park, in order to have a private conversation, wouldn't we have a reasonable expectation of privacy? Not visual privacy--people can still see us--but, audible privacy. If someone walked up, we would stop talking about the private matter.

In this hypothetical, I think no. Since someone could walk by and hear, even if they don't, there is no reasonable expectation of privacy, so listening from a distance with mic/parabolic reflector is probably legal.

These vehicle tracking devices used in the cases cited probably were used because in a rural setting, you can't tail a car without being seen. (You can't stay hidden in traffic because there isn't traffic.) So again, I think it's a straight equivalent to listening with the mic/parabolic reflector.

I don't think walking away from other people in a public park is enough. That would correspond to locating your meth lab (or whatever) out in the boonies, wouldn't it? You still don't get an expectation of privacy on things that happen out in public.

Still, you have to draw lines somewhere.

I think the lines have been drawn, as I've said, by where there is a reasonable expectation of privacy. And the test for what fits that has been outlined. It's not enough that there is an actual subjective expectation of privacy (as in walking away from other people), but there also has to be an objective one.

Maybe you just say public is public and leave it up to the individual to ensure his own privacy out in public.

That's close to the standard, but not quite. I think in my hypothetical where 2 people are somewhere in public, but they speak in whispers and cover their mouths, you'd have a pretty good case that they took efforts to conceal the conversation and thus created a reasonable expectation of privacy. I think just walking away from where other people are in a field in a public park isn't enough to satisfy the objective (or justified by circumstances) expectation of privacy. (What if, in that situation, one of the police officers was a skilled lip-reader? They're still in plain sight, and there's certainly no objection to using binoculars or a telephoto lens on a camera or even a video camera.) But I can see where reasonable minds could disagree on that point.

Nonetheless, the legal standard has been long established.

 

[JoeTheJuggler]

This case was discussed on the Diane Rheme show this morning. I found the show somewhat unsatisfying in that they kept leaving the Jones case to discuss much broader issues (FB posts, e-mail, etc.) In fairness, the topic was given as the 4th Amendment in general and not the Jones case.

Even wrt the Jones case, they constantly conflated the two issues: using the device for a prolonged time to follow movements of the vehicle in public and the issue of attaching the device without a valid warrant.

Diane kept saying that new legal principles would need to be established to account for advances in technology, but I disagree. The case law I've cited says clearly that the principle is whether or not there is a reasonable expectation of privacy, and the technology itself isn't really the issue except insofar as it informs the answer to the question of whether or not there was a reasonable expectation of privacy.

Also, she had her guest twice read the text of the 4th Amendment as if that were the end of the story wrt what the 4th Amendment means. (I would've asked her to read the text of Article 3, which is what supports discussing the case law.)

I agree with the guest who said in the end that the court will not be a landmark case. The law wrt the use of the GPS tracker is pretty clear, and the novel "mosaic" theory won't be accepted. (To do so would open a legal can of worms, and isn't necessary.) They might decide that the issue of attaching the device does require a warrant, but that the violation in this case doesn't warrant rejecting the evidence. They might also simply say that a warrant wasn't necessary (as long as the vehicle was in a public place, and attaching the device didn't interfere with the subject's property rights in any way), and it's irrelevant that the warrant was expired. (Cops aren't lawyers, and the fact that they asked for a warrant doesn't mean a warrant was required.)

http://thedianerehmshow.org/shows/2011-11-02/constitution-today-fourth-amendment

ETA: Oh yeah--they also mentioned that the court will take up the case next month.

 

[Seismosaurus]

This is absolutely outrageous! This ruling would gut the 4th Amendment. It totally blurs the line between what's inside (as in inside somebody's private property, a car), and what's outside (a person walking down the street) and would give the government a virtual blank check to spy on people whenever they please.

Does it really? I don't see how. Cars are outside, not inside. If somebody said to me right now "where's your car?" then I'm pretty sure I'd say "it's outside," because... well, because it's not inside. The boundary between the two is my door and my walls, and they're not very fuzzy.

Cops follow people around in public. They even follow cars around. This has been done for a very long time, it's absolutely standard practice. "Follow that car!" is a cliche, even. Sticking a tracker on it is a different method, but it doesn't actually do anything the cops couldn't do simply by following you around in public. Saying "You can't follow me, I'm in my car so it's private!" is pretty much absurd, IMO.

Does anybody else see how dangerous this is?

No, not really. What is the danger, specifically, if the government can follow me around in public?

 

[sarge]

This is (emabarrasingly, for me) pertinent information that I was unaware of. If the cops had a warrant to install the GPS device, then there does not seem to be a remaining reasonable objection to using a GPS device soley to track the movements of a suspect. My entire objection to the use of a GPS device was predicated on the physical placing of such a device on private property in the complete absence of probable cause.

I still object to the notion that cops may place a device on private property without first satisfying a probable cause standard.

The SCOTUS hears this case today. There was an interesting 15 minute story on NPR this morning - that's long for them, and I had to sit in the parking lot at work to get all of it.

Since we last visited this issue, several interesting developments:

1. The full panel ruled in unanimity to uphold the three judge panels ruling that placing a GPS device without a warrant was unconstitutional. Mildly suprising, but as Joe has pointed out almost irrelevent as soon as the prosecution appealed to the supremes.

2. It now turns out that there was no warrant. NPR querried several dozen prosecutors, and they overwhelmingly viewed the placing of a GPS tracking device in the absence of demonstrated probable cause as problematic, but only for the violative nature of physically affixing a device to private property. Again, this does nothing to negate Joes original arguments, and I will be suprised, but pleased*, if the court rules (rightly) in favor of the defense.

3. The defense has updated their argument to include the "violated my clients private property" approach, something they had not previously argued.


* The defendant is undeniably guilty, and was not wrongly convicted. He may have been convicted with evidence that was wrongly obtained.

 

[sarge]

I failed to read Joes summation of the DR show from yesterday before posting. The segment I heard this morning was not from the DR show, it was straight news.

 

[JoeTheJuggler]

2. It now turns out that there was no warrant.

Which I think is the same as saying there was a warrant for affixing the device, but not for the time and location where it was actually done. But there was at least at some point in time and in some limited jurisdiction probable cause.

Even so, if the SCOTUS rules the affixing was unconstitutional, it doesn't mean necessarily that they will require the evidence from the use of the device to be thrown out.

Again, this does nothing to negate Joes original arguments, and I will be suprised, but pleased*, if the court rules (rightly) in favor of the defense.

3. The defense has updated their argument to include the "violated my clients private property" approach, something they had not previously argued.


* The defendant is undeniably guilty, and was not wrongly convicted. He may have been convicted with evidence that was wrongly obtained.

That's just a generic description of any 4th Amendment case. [ETA: Or do you mean they're abandoning their novel mosaic theory argument about the use of the GPS and instead only arguing that issue that the court added back in about attaching the device?]

Their specific argument wrt to the use of the GPS (not the affixing of it, which was an issue they didn't raise on appeal but was added back in by the court) is the one using the mosaic theory--that at some point in time gathering information for which there is no reasonable expectation of privacy (movements of a car in public) becomes information for which there is a reasonable expectation of privacy. As I've said, that novel theory opens a can of worms, and the court is almost certain to reject it.

ETA: At any rate, this will not turn out to be a landmark case unless the SCOTUS were to accept the novel mosaic theory argument (which I'm confident they won't do). The issue about attaching the device is relatively minor. They can still get the devices in the vehicle through trickery or by properly using a warrant such as they originally obtained. (It really was just the fact that a good opportunity to attach it within the city limits never arose within the time limit.) They could also have gotten a warrant for a more invasive attaching (like breaking into the home garage or some such).

ETA2: And I still think there's at least a decent chance the SCOTUS will rule that a warrant isn't necessary to affix the device under the circumstances I've mentioned before: essentially that affixing it is done in a place where there is no reasonable expectation of privacy and in a manner that doesn't interfere with any property rights. (That is, it can't prevent the subject from enjoying all the aspects of owning the vehicle. It can't interfere with how the vehicle works or looks in any way.)

 

[JoeTheJuggler]

1. The full panel ruled in unanimity to uphold the three judge panels ruling that placing a GPS device without a warrant was unconstitutional. Mildly suprising, but as Joe has pointed out almost irrelevent as soon as the prosecution appealed to the supremes.

Oh--that happened some time ago. Basically the full appellate court declined the prosecution's motion to review the 3 judge panel's decision. They did not actually issue a decision on the appeal as a full court.

But that was water under the bridge ever since the SCOTUS certified the case.

 

[mikeyx]

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.

you are making an alarmist argument under a misrepresented call for privacy. Nothing new.

 

[sarge]

Which I think is the same as saying there was a warrant for affixing the device, but not for the time and location where it was actually done.

Going only by what I heard on NPR this morning, there was never a warrant to affix the GPS device to the car, and never a warrant that could have been construed to allow such. Of course, it may turn out that no warrant is ever necessary to do so.

But there was at least at some point in time and in some limited jurisdiction probable cause.

It appears that that is very much in doubt. The demonstration of probable cause to the satisfaction of a warrant issuing authority would have precluded the appeal.

Even so, if the SCOTUS rules the affixing was unconstitutional, it doesn't mean necessarily that they will require the evidence from the use of the device to be thrown out.

True - but it seems likely that should the Supremes rule the affixing unconstitutional, they are likely to also uphold the appeals court tossing the conviction. That would not necessarily preclude the prosecution from attempting to use the same eveidence again in a subsequent trial - although I can imagine the defense having at least an even chance of supressing it.

That's just a generic description of any 4th Amendment case. [ETA: Or do you mean they're abandoning their novel mosaic theory argument about the use of the GPS and instead only arguing that issue that the court added back in about attaching the device?

So far as I could determine from the NPR version of events this morning, the defense has two points:

1. The use of a GPS tracking device amounts to a "search".
2. The use of a GPS tracing device amounts to a "seizure".

Both of these are 4th amendment issues. I am unfamiliar with their previous "mosaic" theory, and there was no mention of it by that name this morning.

Their specific argument wrt to the use of the GPS (not the affixing of it, which was an issue they didn't raise on appeal but was added back in by the court) is the one using the mosaic theory--that at some point in time gathering information for which there is no reasonable expectation of privacy (movements of a car in public) becomes information for which there is a reasonable expectation of privacy. As I've said, that novel theory opens a can of worms, and the court is almost certain to reject it.

According to NPR, it was the defense that added the objection to the affixing of the device itself as a component of their argument. The defense is arguing that even if the use of a GPS receiver/transmitter is simply an acceptable substitute for visual surveilance, affixing it to private property is an unwarranted intrusion on the 4th amendment. According to their argument, this differes substantially from other uses of existing technology such as surveilance cameras, etc.

 

[JoeTheJuggler]

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.

I suspect you're right about there being no difference in placing a device on a car or on clothing. However, there would be a huge difference in using those two. A device attached to a person's clothing would ONLY legally be used while the person is in public where there is no reasonable expectation of privacy. I believe it was the Knotts case where the court said that once the tracking device left the vehicle and was carried into a place where there was a reasonable expectation or privacy, it could not be used (without a warrant).

So they could probably attach a small device to clothing (though I'm not sure such things are small enough not to interfere with the rights of the person to use his clothing normally--it might cause damage to clothing when it's tossed in the laundry, for example), but its use would probably require a warrant.

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?

None. [ETA: wrt the 4th Amendment, that is.] The speed of your vehicle in public is also something for which there is no reasonable expectation of privacy. Police can already gather that information by pacing, by radar/sonar, by aerial observation, etc.

However, I don't think we need to worry about cops affixing GPS trackers on cars to catch speeders. There's simply not a good cost/benefit ratio there! [ETA: Remember just because something is constitutional doesn't mean it's a good idea!]

 

[sarge]

However, I don't think we need to worry about cops affixing GPS trackers on cars to catch speeders. There's simply not a good cost/benefit ratio there! [ETA: Remember just because something is constitutional doesn't mean it's a good idea!]

Nor will there be a need. Insurance companies will soon coerce insured drivers to submit to remote driving habit monitoring IOT avoid higher premiums. At least one insurance company already touts the practice as a good idea for drivers, claiming that submitting to the monitoring will result in lower premiums.