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

[JoeTheJuggler]

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.

There was a warrant, but it had a time deadline and was limited to D.C. They actually affixed the device a day after it expired and in Maryland. As has been pointed out, there was no warrant to do what they actually did.

Of course, it may turn out that no warrant is ever necessary to do so.

I think that's likely to be the decision.

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.

No. The appeal was on the issue of using the GPS device over an extended period of time. There was no warrant for using the device at all. (Only the expired warrant for affixing it.)

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".

They'll lose that. As I've shown by the case law, there's strong established law that using technology to gather information for which there is no reasonable expectation of privacy does not comprise a search or a seizure at all.

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.

They haven't been using that name in the news, but that is exactly what the defense is arguing. (I've linked to their briefs earlier.) They're saying that following the car continuously for 3 weeks can deliver a pattern of information about the vehicle's movements in public. Even though there is no reasonable expectation of privacy for the movements of the vehicle in public, they're arguing that there is a reasonable expectation of privacy about the pattern of movements that emerges over some period time of continuous observation.

According to NPR, it was the defense that added the objection to the affixing of the device itself as a component of their argument.

If that's what NPR said, they're wrong.

Again, I've linked to the court documents. This was not a part of the appeal. (I'm not sure, but it may have been argued at trial, but for whatever reason the defense abandoned it on appeal.) This issue was explicitly added in by the SCOTUS when they certified the case.

According to their argument, this differes substantially from other uses of existing technology such as surveilance cameras, etc.

They'll lose that argument. There are 2 other SCOTUS cases involving warrantless use of electronic tracking devices on vehicles (they were radio beeper trackers). Those decisions said clearly that the question is whether or not the information gathered is something for which there is a reasonable expectation of privacy. It's not about the technology (unless, as in the case of using IR scanners to gather evidence of activity going on inside a house, the technology gives you access to information for which there is a reasonable expectation of privacy).

I've cited all these cases (most of which, curiously, have an initial "K" in the name, Knotts, Knox, Kyllo, Katz) throughout this thread.

 

[JoeTheJuggler]

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.

Insurance companies aren't the government. This is not a 4th Amendment issue. If anything, there might be a commerce clause authority of Congress to regulate insurance companies if they're doing something coercive.

Or are you saying that the police can then force the insurance companies to share the use of their monitoring devices without a warrant? Insurance companies could voluntarily share that info, but why would they?

Even so, there are different niches in the auto insurance market. Some market to safe drivers, and it is indeed in the interest of those safe drivers to show the insurer that they are safe drivers. But there are other companies that specifically market to high-risk drivers (SR-22s).

At any rate, none of these issues are before the court. The court doesn't need to consider them. Even if the court does address these issues in its decision, anything they say about them will only be obiter dictum.

 

[JoeTheJuggler]

One more minor clarification: the issue of affixing the device (as opposed to using it) is not at all likely to be decided to be a violation of the 4th Amendment (since nothing was searched or seized during the affixing--that is, no evidence gathered at all).

If it's ruled to be some other misbehavior on the part of the police (someone used the word "tampering"--or some notion of violation of the owner's property rights to the vehicle), since this is not a 4th Amendment issue, the evidence gathered from the subsequent use of the device will probably not be suppressed.

 

[JoeTheJuggler]

Here's a transcript of today's oral arguments:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1259.pdf

I've always heard that it's no good trying to guess the justices positions based on what questions they ask, but it's always fun anyway.

ETA: So far (page 11 of 74) the most striking thing I'm seeing is a tendency on the judges to dislike the privacy test altogether (going back to Katz) because it narrows the scope of the 4th Amendment. (I wish the lawyer would point out that most seizures these days are warrantless seizures, so the world has indeed changed dramatically since those days.) Kennedy says explicitly he doesn't like it and disagrees with it, but that it's long established law, and he wouldn't overturn it.

Also, so far, they very quickly moved to the issue of attaching the device.

ETA: Page 16, Roberts brings up the mosaic theory.

ETA: Page 30 Kagan offers a great hypothetical separating the two issues: what if you place a non-working device in the vehicle. (IIRC, in the Jones case, police had to change batteries on the device, so there were two examples of the "trespass" issue as distinct from the tracking issue.)

ETA: Page 33ff, in trying to argue that this was an unlimited search (and not a limited intrusion which can be done with just reasonable suspicion and not probable cause/warrant) Jones' lawyer argued that the GPS device is cost free (meaning much lower cost than putting a team of tails on the guy or even the older beeper technology to follow him for 3 weeks). Kennedy says, "And it seems to me what you're saying is that the police have to use the most inefficient methods." Basically how does cost affect the constitutional issue?

ETA: Page 40--It really looks bad for Jones' lawyer. A couple of justices have very nearly said he's wasting his time. Scalia's response to the mosaic argument is, "100 times zero equals zero."

ETA: Page 44: Jones' lawyer keeps trying to urge the court to decide the case on the narrower issues (trespass for attaching the device), but Alito repeats the earlier hypothetical, asking if there would be a lawsuit if police attached an inert device the same size and shape as the GPS, and now the lawyer says, no, it's about the tracking of movements. (He's been going in circles for a while on this.)

ETA: page 48: Sotomayor's reaction to the mosaic theory applied to intersection cameras: "What an unworkable rule tethered to no principle. A thousand video cameras may or may not be okay, depending on how large the city is?"

ETA: page 55: Alito points out that there was a warrant, and violating the terms of that warrant don't carry an exclusionary penalty (that is, even if the cops were wrong in violating its terms, that's not a 4th Amendment issue that would cause the evidence gathered to be suppressed).

ETA: Page 58: the prosecution's lawyer addressed a point raised in this thread some time back: what if a non-cop private citizen attached the device, wouldn't it be a tort? Answer: probably, but that's not a 4th Amendment issue, and cited a case where "the Court accepted that and said tort law doesn't define the boundaries of the Fourth Amendment." That is, "the fact that something may be a tort for a private person doesn't mean it's a problem for the police to do it."

 

[sarge]

There was a warrant, but it had a time deadline and was limited to D.C. They actually affixed the device a day after it expired and in Maryland. As has been pointed out, there was no warrant to do what they actually did.

I think that's likely to be the decision.




No. The appeal was on the issue of using the GPS device over an extended period of time. There was no warrant for using the device at all. (Only the expired warrant for affixing it.)




They'll lose that. As I've shown by the case law, there's strong established law that using technology to gather information for which there is no reasonable expectation of privacy does not comprise a search or a seizure at all.


They haven't been using that name in the news, but that is exactly what the defense is arguing. (I've linked to their briefs earlier.) They're saying that following the car continuously for 3 weeks can deliver a pattern of information about the vehicle's movements in public. Even though there is no reasonable expectation of privacy for the movements of the vehicle in public, they're arguing that there is a reasonable expectation of privacy about the pattern of movements that emerges over some period time of continuous observation.




If that's what NPR said, they're wrong.

Again, I've linked to the court documents. This was not a part of the appeal. (I'm not sure, but it may have been argued at trial, but for whatever reason the defense abandoned it on appeal.) This issue was explicitly added in by the SCOTUS when they certified the case.


They'll lose that argument. There are 2 other SCOTUS cases involving warrantless use of electronic tracking devices on vehicles (they were radio beeper trackers). Those decisions said clearly that the question is whether or not the information gathered is something for which there is a reasonable expectation of privacy. It's not about the technology (unless, as in the case of using IR scanners to gather evidence of activity going on inside a house, the technology gives you access to information for which there is a reasonable expectation of privacy).

I've cited all these cases (most of which, curiously, have an initial "K" in the name, Knotts, Knox, Kyllo, Katz) throughout this thread.

Your logic was impecable, your reasoning sound, and your grasp of the details of the issue seemed solid - yet almost all of your predictions turned out wrong.

The longer we are seperated from 1789, the harder it becomes to anticipate the SCOTUS. Seems the opposite should be the case.

 

[3point14]

Deos this now mean it's easier to be a criminal if you are rich enough to afford a garage on private land to park your car?

Poor and parked on the street - Tracked
Rich and parked in private - Untracked

 

[sarge]

Deos this now mean it's easier to be a criminal if you are rich enough to afford a garage on private land to park your car?

In a word, no.

Poor and parked on the street - Tracked
Rich and parked in private - Untracked

In reading the actual decision, it seems the court holds (properly, even obviously) a car to be an effect, and the 4th amendment guarantee extends to making us free from unreasonable searches of our effects. It is the actual placing of the device that was most violative in this case - although the police also tresspassed on Jones' property when they placed the device on the car while it was parked in the garage. Trespass itself is neither necessary nor conclusive to whether this is a search - and isn't relevent in this case.

Most interesting to me, the court held that the "K" cases are not particularly relevent to this case, and that the "K" cases did not re-define what the 4th amendment was originally intended to do for us. This is the basis of the disagreement between the majority and the concuring minority opinions. The concuring justices believe that Katz redefined the 4th amendment, eliminating previously existing protections against searches of property/person/effects/etc and substituting instead only protections against searches when a reasonable expectation of privacy exists.

Skip the actual decision and read/compare Sotomayor/Alito. These two opinions capture the crux of the matter quite well. Sotomayor is (in my opinion) more precise, accurate, and logical than Alito. Indeed, Alito's commentary seems quite poorly thought out - he completely misses the basis of the majority's decision.

 

[JoeTheJuggler]

Your logic was impecable, your reasoning sound, and your grasp of the details of the issue seemed solid - yet almost all of your predictions turned out wrong.

See either of the other two threads on this topic. I admitted my prediction of the outcome of the case was wrong, but I was right that the court didn't accept the mosaic theory (though it said it might have to deal with that argument at some point).

I find the current decision problematic, though. They said that since there was a trespass they didn't need to apply Katz. By that reasoning, any trespass is equal to a search. That doesn't make sense.

They explicitly didn't deal with the nature of the information gathered (whether there was or was not a reasonable expectation of privacy about the movements of the vehicle over a 28 day period). They explicitly separated the issue of using the device to track the movements of the vehicle from the warrantless attaching of the device to make their decision. Yet if you separate the two, and are only dealing with the attaching of the device, how is that a search? What information (evidence) was gathered by the attaching of the device? In oral argumentation the justices raised this very issue.

It's possible to have a trespass that is not a search (under the 4th Amendment). I don't see how they can get away with not applying Katz to determine whether or not there was a search.

I oral arguments, they raised the hypothetical of attaching a device that does nothing, or attaching a GPS device but never using it. Even if that's a trespass, is it a search?

At any rate, they decided the matter solely on the issue that the court itself added when certifying the case, and not on any of the arguments Jones' lawyers made. (And they carefully neither rejected nor accepted those arguments.)

Nothing in the case dealt with the GPS technology as being significant in itself. Presumably, if you attached the radio beepers used in the earlier cases without a warrant--in those cases, police used trickery to get the subjects to put the tracking device in the vehicle themselves--they would have decided there was a 4th Amendment violation based on the trespass and not bothered to consider what they did in those cases. That is, they wouldn't have bothered considering whether or not tracking the movements of a car in public where there is no reasonable expectation of privacy constitutes a search.

The longer we are seperated from 1789, the harder it becomes to anticipate the SCOTUS. Seems the opposite should be the case.

I don't know. The Supreme Court is always able to reverse cases. Generally the principle of stare decisis means they won't reverse well established laws (except sometimes!).

[ETA: This is a long winded way of saying I don't think it's ever been very easy to predict when the SCOTUS would change directions in its decisions.]

I think that although this decision claims not to have reversed Katz, it effectively did. I'm not sure now what constitutes a search.

 

[JoeTheJuggler]

Trespass itself is neither necessary nor conclusive to whether this is a search - and isn't relevent in this case.

Exactly. They say the Katz test isn't the exclusive determinant for whether or not there was a search, and that they don't need to apply it here, but they seem to whiff on what does constitute a search, and the decision suggests that any trespass is a search.

I guess police will no longer be allowed to put stickers on abandoned cars or chalk marks on tires. Those trespasses on private property ("effects") now constitute warrantless searches under the 4th Amendment. (Maybe those two situations can get away without using a warrant under the cases that say when the evidence is likely to disappear if you must wait for a warrant, police don't need to wait. So I suppose parking legally is probable cause that you will park illegally in time-limited parking spots!)

Most interesting to me, the court held that the "K" cases are not particularly relevent to this case, and that the "K" cases did not re-define what the 4th amendment was originally intended to do for us. This is the basis of the disagreement between the majority and the concuring minority opinions. The concuring justices believe that Katz redefined the 4th amendment, eliminating previously existing protections against searches of property/person/effects/etc and substituting instead only protections against searches when a reasonable expectation of privacy exists.

I find the concurring decision at least more logically consistent. Katz changed the interpretation of the 4th Amendment (narrowed it), and the concurring judges would have explicitly reversed it.

I think the ruling decision effectively reverses Katz (at least for the Jones case), but is worded in such a way that any similar case will get little direction on how to reason from the Jones case.

 

[JoeTheJuggler]

Deos this now mean it's easier to be a criminal if you are rich enough to afford a garage on private land to park your car?

Poor and parked on the street - Tracked
Rich and parked in private - Untracked

I don't think the defining point was whether the car was parked on private property. I think the trespass was that the car itself is the private property.

At any rate, contrary to what the headlines are saying, the court didn't rule on anything unique or specific to GPS tracking.

ETA: For instance, since the decision said nothing that would overturn Knox, if they could have gotten the GPS device attached to (or in) the vehicle without committing a trespass, it would not have been an illegal search under the 4th Amendment to use the device. [AS long, of course, as the only information gathered was about the movement of the vehicle in public.] As a result of this decision, we might see police having to get a warrant (and obey its terms) or resorting to the hypothetical raised in oral arguments: attaching the device to the license plate only.

 

[JoeTheJuggler]

Here's the crux of the problem to me:

"It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information."

But they didn't physically occupy private property for the purpose of obtaining information. When they attached the device, they gathered no information. (If they gathered any evidence when they physically occupied the private property, they didn't use it at trial, and it's not at issue here.)

And that's ignoring the issue of being outside the car and not interfering with any property rights is somehow physically occupying the car, but I'm less worried about that. I don't mind them tightening up what constitutes trespass. I am concerned about characterizing any trespass as a search when there was no searching going on during the trespass.

It seems to me that the only way this is a search is in the use of the device to gather information, and then Knox should apply. (Basically it says you must apply the Katz test to determine whether information gathered was that for which there is a reasonable expectation of privacy.)