Slashdot Mirror
Supreme Court Rules Warrants Needed for GPS Monitoring
gambit3 writes "The Supreme Court has issued its ruling in the case of Washington, D.C. nightclub owner Antoine Jones, saying police must get a search warrant before using GPS technology to track criminal suspects. A federal appeals court in Washington overturned his drug conspiracy conviction because police did not have a warrant when they installed a GPS device on his vehicle and then tracked his movements for a month."
They got one right?!?!
Hopefully that'll bring this BS to an end, along with ending the jobs of the officers that continue to pull this stunt.
Is getting a search warrant on someone really that time consuming?
What do I know, I'm just an idiot, right?
What amazed me was it was a unanimous decision.
A brief read of Justice Sotomayer's concurring opinion seems to characterize the differences in the justice's reasoning as follows:
1.) Scalia, Sotomayer, Roberts, Thomas, and Kennedy formed the majority in the opinion of the court, which relied on the fact that a trespass occured when the physical device was planted on the car. The majority did not look at any issues other than the trespass one because the trespass issue was sufficient to decide the case. Sotomayer describes it his way: "By contrast, the trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum: When the Government physically invadespersonal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case."
2.) Alito, joined by Breyer, Kagan, and Ginsburg, focused more on the impact of obtaining the knowledge - that is, whether GPS tracking data, regardless of whether it's obtained via physical trespass or some other way, falls within the expectation of privacy protected by the fourth amendment. Alito would hold that trespass is irrelevant to 4th amendment law, and that only the expectation of privacy issue is relevant.
3.) Sotomayer (who joined the opinion of the Court), thinks that Alito's dismissal of the trespassory test would do harm to the constitutional protections, but emphasizes that, in other cases where no trespass occurs, the Court should also analyze expectation of privacy.
In sum, we have 5 justices who are willing to apply a trespassory analysis (which means physically attaching a device to a car is subject to the warrant and reasonableness requirements of the 4th amendment), 5 justices who think the expectation of privacy involved in one's movements should provide 4th amendment protection when long-term electronic tracking is used, regardless of whether trespass occurs, and at least 1 who thinks both apply.
It should be noted that, if I'm reading Sotomayer's concurring opinion correctly, the 4 in the majority other than Sotomayer should not be viewed as having rejected the application of the expectation of privacy test to electronic location tracking. Rather, they've emphasized that the expectation of privacy test is in addition to the trespassory test, and expressly declined to evaluate it because the trespassory test was conclusive.
A couple of other notes:
(1) The government did obtain a warrant in this case, but the placed the tracker on the car outside the time and physical location the warrant gave permission for. The Court did not consider the government's argument that the technical violation of the warrant's strictures rendered the search unreasonable, holding that the government waived those arguments. Therefore, we don't have any insight into how strictly the requirements of warrants will be applied.
(2) The Court did not address this, but it's not hard to imagine scenarios where the Court might allow tracking without a warrant. For example, if an officer witnesses a crime but cannot effect an arrest, the Court might allow an officer to plant a device without a warrant due to exigency, and thereafter apply for a warrant. Similarly, the Court might allow a device to be planted during the course of a high-speed chase without warrant, if the means to do so are invented. I want to emphasize this is total speculation on my part, but fourth amendment law goes far beyond "did a search occur?"
(3) Although there's no holding yet, there's very good reason to believe that obtaining GPS data from non-trespassory means, such as from OnStar or a cell phone, will also require a warrant.
It was 9-0.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Sotomayor, JJ., joined. Sotomayor, J., filed a concurring opinion. Alito, J., filed an opinion concurring in the judgment, in which Ginsburg, Breyer, and Kagan, JJ., joined.
Cookies should require warrants.
As most cookies are not installed by Law Enforcement, you're not quite following the plot.
See, I as a private eye, could install a GPSr device on your car or cookies on your computer to serve me in my private investigations (or even my nefarious plot to take over the world) which has nothing to do with the 4th Amendment -- unless Law Enforcement tries to use any of the data I've gathered.
Your computer is only yours in illusion.
A feeling of having made the same mistake before: Deja Foobar
No, because of the exclusionary rule. (see Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920)). The courts have held (rightfully so) that the law itself is more important that ultimate justice. To hold otherwise just encourages misconduct.
He might or might not be found guilty .. but if he is, it won't be based "dirty" evidence.
An important thing to note that this case was obvious to the justices because a tracking device was placed on the suspects private property. This ruling is very limited in time constraints, and methodology. Can they use GPS tracking on things already present on the vehicle? No answer on that yet.
"Fruit of the poisonous tree." The problem is that since police and prosecutors are hardly ever prosecuted for unreasonable search and seizure themselves, pretty much the only incentive for them to follow the Fourth Amendment is to see their evidence thrown out of court if it's illegally gathered. If they routinely went to jail for such violations, it might be a different story -- but they don't, and they never will, so this is what we're left with.
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
Why bother?
Everything you just said above is supported by our the current President's administration.
Remember it was President Obama's guys arguing in favor of this...not Newt's.
Just saying..
----
The difference between GWB & BO. A "GW" on the left, and an "O" on the right. All the policies are still the same as Reagan and Clinton's.
I am glad this decision came down from the Supreme Court. I am also glad to find it here already on the news page at /. .
I am providing a link to the NY Times article on this same subject it is more informative IMHO.
http://www.nytimes.com/2012/01/24/us/police-use-of-gps-is-ruled-unconstitutional.html
From the NY Times link above by Adam Liptak
Though the ruling was limited to physical intrusions, the opinions in the case collectively suggested that a majority of the justices are prepared to apply broad Fourth Amendment privacy principles unrelated to such intrusions to an array of modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance and records kept by online merchants.
Further into the article are the juicy bits. I paste them here for you /.ers who are RTFA imparied.
Justice Sotomayor joined the majority opinion, agreeing that many questions could be left for another day “because the government’s physical instruction on Jones’s jeep supplies a narrower basis for decision.”
But she seemed to leave little doubt that she would have joined Justice Alito’s analysis had the issue he addressed been the exclusive one presented in the case.
“Physical intrusion is now unnecessary to many forms of surveillance,” Justice Sotomayor wrote. In the case of G.P.S. devices, she wrote, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”
She went on to suggest that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”
“People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers,” she wrote. “I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site they had visited in the last week, or month, or year.”
Justice Alito listed other “new devices that permit the monitoring of a person’s movements” that fit uneasily with traditional Fourth Amendment privacy analysis.
“In some locales,” he wrote, “closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.
“Perhaps most significant, cellphones and other wireless devices now permit wireless carriers to track and record the location of users— and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States.”
For every benefit you receive a tax is levied. - Ralph Waldo Emerson
.. he wasn't trafficking in pirated movies, or the judge would have been merciless.
Currently hooked on AMP
Nope. Innocent until proven guilty. If a society deems itself worthy enough take away liberty. The least it can do up uphold its own rules. By not doing so, people who are obviously guilty can and will go free. Those people may kill and murder again, maybe someone I love. GET IT RIGHT FIRST TIME. I pay a lot of tax into the system for that money I want a guilt and innocent verdicts which can trusted.
While the court did rule 9-0 that the tracking was too extensive and had to be thrown out, the court split 5-4 on the reasoning and scope of the ruling. The majority opinion held that the tracking was invalidated by the fact that police used the defendant's private property (his car), in violation of the 4th amendment. This largely sidesteps the much broader questions about stake: police use of GPS tracking in cellphones, camera networks backed by face/vehicle/license plate recogniztion software, etc. The minority opinion sought to invalidate the tracking on more broad grounds such as the duration (one month), continuous nature, expectation of privacy in the modern age, etc. But, being the minority opinion, it doesn't exactly have the same force behind it. Their opinion, however, is likely to form a blueprint for how these things can get argued going forward. It is certain that these issues will come up again and again in the Court.
More information and explanation of the ruling can be found at the NYTimes, wikipedia, and the court's opinion text (PDF).
There are two interesting facts about this ruling. First all nine Justices agreed that the use of the GPS without a warrant in this case was unconstitutional. However, 4 of the Justices felt that it might have been Constitutional if done for a shorter period of time. What is interesting about that is that the divide was not along the usual divide. The majority opinion was supported by Scalia (who wrote it), Roberts, Thomas, Kennedy (the "swing" vote) and Sotomayor (generally considered a "liberal" vote). While the minority opinion was written by Alito (generally considered a "conservative" vote) and joined by the rest of the Court's "liberals" (Ginsburg, Breyer and Kagan).
The truth is that all men having power ought to be mistrusted. James Madison
Why?
They are voluntary. Don't like cookies? Disable them. It is your computer. Heck, super paranoid about that? Don't use a computer or don't use a web browser.
Guess what? Every browser made since the early 90s has had an option to disable cookies. There are even tools to make your browsing close to anonymous. There is a huge difference between something you voluntarily consent to, and something that you absolutely do not.
Taxation is legalized theft, no more, no less.
Cops under your system: That dirty SOB, I know he's guilty of (horrific crime.) It'll be worth going on unpaid suspension for a month just to beat a confession out of him.
Esp. since there will probably be some charitable giving to the cop during his discipline from other members of the force.
Your ad here. Ask me how!
Depends on the judge (I do a lot of subpoena work, on boths sides).
.. I have seen some where the judge says "Apartment #3 is not sufficient to identify the residence" and "Computer equipment does not sufficiently identify the property sought" and the police had to go back and get permission (from the landlord) to take a picture of the door and go back to the judge along with serial numbers and such of the devices.
.. because what if the police work is sloppy and the stolen computer is serial number AB123456 and you have a computer that's DE78910 but the same exact model .. guess which defendant is getting their stuff back.
I have seen some that are "rubber stamped" with only a vague description of what they're after (eg: "computer equipment")
The judge in the 2nd case is doing it right
re (2) : these exist. http://www.starchase.com/
Double jeopardy applies, I expect.
And if it doesn't, it should.
"I do not agree with what you say, but I will defend to the death your right to say it"
Unfortunately, the exclusionary rule doesn't punish the cop who broke the law. What we need is a doctrine that says any search, arrest, detention, etc that oversteps legal authority is a crime just as if any non-police officer had done it. Then it's just a matter of prosecuting police misconduct as assault, breaking and entering, etc. You can keep the evidence, but the person who broke the law to get it is going to jail. This is the exact same way evidence is treated if it's collected illegaly by a non-cop, btw.
Of course, prosecutors are going to be poorly-disposed towards prosecuting the cops they work with daily. So we'd need an independent meta-justice system to keep tabs on that.
Give me Classic Slashdot or give me death!
From Volokh: [http://volokh.com/2012/01/23/what-jones-does-not-hold/]
What Jones Does Not Hold
Orin Kerr January 23, 2012 12:50 pm
A lot of the early press reports on United States v. Jones are reporting that the Supreme Court held that the government needs a warrant to install a GPS device. But that’s not correct, actually. The Court merely held that the installation of the GPS was a Fourth Amendment “search.” The Court declined to reach when the installation of the device is reasonable or unreasonable. As the opinion explains on page 12 of the slip opinion:
The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and in-deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. See 625 F. 3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002).
So we actually don’t yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment “search.”
Your computer is only yours in illusion.
That's akin to saying that your car is not yours because other people can walk up to it and look through the windows.
The decision was the same, the reasoning by which some members arrived at the decision was different. As I see it, that makes it unanimous.
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
Your GPS receiver can only be used against you if you are arrested and it is confiscated, at which point any history stored in the device may (depending on the warrant) be obtained and admitted as evidence.
They cannot be used to track you.
Ouch. Your post has got to sting. 5-4 split was over the "rationale" behind the 9-0 decision.
For every benefit you receive a tax is levied. - Ralph Waldo Emerson
Are you an idiot, or just trolling?
They're talking about attaching a covert tracking device that uses GPS to record your location. It is placed covertly by law enforcement and retrieved covertly (they hope) by law enforcement. You have no access to the device and it is a criminal act if you tamper with it.
They are NOT talking about the navigation unit in your car or phone.
Learning HOW to think is more important than learning WHAT to think.
Sorry, but that dog won't hunt, monseigneur.
An enigma, wrapped in a riddle, shrouded in bacon and cheese
This court didn't create corporate personhood, it just clarified that aspect of it.
http://en.wikipedia.org/wiki/Corporate_personhood
Corporate personhood isn't the problem anyway, though for all it's vilification in the media you'd never know it. If you want to sue AT&T, you want to be able to sue AT&T and not some individual who works there - personhood makes sense in a lot of scenarios.
Citizens united just let corporations and unions be more honest about funneling money to candidates - now that it's more open we can address it. I call that at least a partial win.
Pretty much. Even if you see someone stealing your car, you're not allowed to shoot or taser or hit them in order to prevent the act.
Welcome to reality. You've left the matrix and now your eyes are opened. ;-)
My AC stalker: " I personally agree with your posts most of the time, but that won't keep me from modding you troll"
No, traditionally "the location of your car, driving around in public places" is not reasonably considered private. ("A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." United States v. Knotts, 460 U. S. 276, 281 (1983)). The interesting thing about Justice Sotomayor's concurrence is that she left the door open to revisiting this in a future case. ("[B]ecause GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility." Slip. Op. concurrence at 3 (citation omitted)). She ultimately agreed with Justice Scalia that because there was an actual physical trespass here, the Court didn't need to reach that. ("We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here." Maj. Op. at 12.)
Traditionally if you were walking around on a public street you would expect that it would be possible for you to run into one of your friends, acquaintances, co-workers, or indeed, a police officer. If you were on your way to or from robbing a bank when that happened and that person ended up being a witness against you, you would call it bad luck, but you wouldn't say it was unreasonable invasion of privacy by the state: although possible, the improbability being meaningfully observed while in public colored our expectation of privacy. The police could follow your every public movement, of course, but the crushing cost of paying officers to follow you round the clock is beyond what most police departments could afford for any but the most serious offenders.
However, with omnipresent surveillance cameras, gps-enabled devices, and complete electronic records of our every transaction, we are fast leaving the realm where your public movements' being observed could be chalked up to bad luck and entering the era where the state can know everything about you with minimal cost or expense. And from reading this opinion, it seems like all the justices are in agreement that they are going to have to grapple with this soon.
How many police officers would be willing to do their jobs or properly pursue criminals if they didnt get at least some accomodation under the law?
They get accomodation under the law. They are allowed to do all sorts of things normal people can't do, as long as they follow the proper procedures. If you expect to be unable to follow those procedures, I don't really want you as a cop.
cops are pushing suspected criminals because it is their job. I don't think we would get better justice by making a habit of pursuing those that pursue suspects.
The problem occurs when the criminal in question is a cop. If a cop breaks the law, he's a criminal. He deserves to be treated as such. Protecting bad cops is enforcing criminality.
Give me Classic Slashdot or give me death!
Yep, watch my karma disappear :)
We have actual laws that violations of civil liberties under color of law are crimes.
The problem with such laws as a remedy to police misconduct is that prosecutors almost never prosecute under them even now, and if you remove the exclusionary rule, you'd have even less incentive for prosecutors to prosecute violations (with the exclusionary rule, police habitually overstepping their bounds is a problem for prosecutor's ability to secure convictions, which gives them some incentive to deter police misconduct of this type, which would be missing without the exclusionary rule.)
And then another independent meta-meta-justice system to keep tabs on misconduct in the meta-justice system, etc., etc., etc., ad nauseum, ad infinitum.
Actually, in Texas you can. Texas Penal Code - Section 9.42. Deadly Force To Protect Property
-Unresolved symbol? Byte me!
4 said warrantless tracking via GPS was illegal. period.
9 said warrantless tracking via a attached GPS was tresspass, and thus illegal.
5 out of the 9 did not say if you could warrantless track via GPS WITHOUT tresspas. i.e. via a person's cell phone or GM's On-Star. It may well still be perfectly legal - or not. (I hope not, but....)
How feasible would it be to build a 'GPS faker' that could feed false data to such a tracking device? It'd be fun to see what they made of a car that apparently levitated, flew across the Pacific ocean at Mach 3, then returned to its starting point...
PHEM - party like it's 1997-2003!
I am not surprised by the ruling and agree with the decision. I imaged the discussion to focus on public versus private information. Police do not need a warrant to "tail" a suspect as they move through public streets. However, they need a warrant to follow the suspect into private property as their entrance would be trespassing.
It is good to know that the court viewed the attachment of the device to the vehicle as trespassing. While the court did not explicitly say that a warrant is required in all cases, it is clear the the trespassing issue has implications in both long term and short term use of implantable or attachable technology for surveillance.
Depends on the laws of your state...I believe TX for instance will allow you to use deadly force to protect your property.
A few years back...they tried to convict a guy here in LA who shot some kids robbing his car outside his apt. The jury would not convict him of homicide on the youth that was killed.
Also, some areas extend your car to be considered part of your home...and in most any area I've lived in, if they are in your home illegally and you feel threatened...you don't have to retreat and can blow them away. Hell, I've known tales of NOLA cops helping to drag the dead bodies back into houses after they made it out after being shot...just to keep it 'clean' on what the outcome would be.
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
And you are exactly correct. If you want the contents your car/computer to remain completely private, you need to "park it on your own private property"/"keep it off the public Internet".
No. Wrong. Very bad wrong. Today's ruling states that the goverment cannot impinge on my property (i.e. my car) even if I DO park it on the public streets / drive on the public road.
On the other hand -- looking in the windows of a parked car on public property is usually allowed -- if there's a reason to be looking in windows. One of the suburbs around Chicago (Palatine for those that care) instituted a policy whereby officers are trained to look through windows in parking lots to see if the owners left cell-phones, wallets, big piles of coins, etc, where they can be seen by thieves. The officer then writes a warning or waits to advise the owner that there is a risk of Breaking and Entering in Palatine, and that such valuables shouldn't be left out in plain view. (I have actually been the recipient of such a warning). As a side effect they also get to do a visual search of every car in the parking lot. Then, when they come up to give you the warning, they also check for signs of drug use / anything that would give them an excuse to pat you down.
In effect its abusive, but on paper it looks okayish under a traditional 4th amendment analysis.
-GiH
The basis of Oliver was that the open field was not a person, house, paper, or effect. Therefore, the trespass doctrine did not apply. The Oliver court also held that there was no reasonable expectation of privacy in an open field.
In today's opinion, the court ruled that the car is an effect. Therefore the trespass doctrine applies. The court explicitly distinguished Oliver:
Finally, the Government’s position gains little support from our conclusion in Oliver v. United States, 466 U. S. 170 (1984), that officers’ information-gathering intrusion on an “open field” did not constitute a Fourth Amendment search even though it was a trespass at common law, id., at 183. Quite simply, an open field, unlike the curtilage of a home, see United States v. Dunn, 480 U. S. 294, 300 (1987), is not one of those protected areas enumerated in the Fourth Amendment. Oliver, supra, at 176–177. See also Hester v. United States, 265 U. S. 57, 59 (1924). The Government’s physical intrusion on such an area—unlike its intrusion on the “effect” at issue here—is of no Fourth Amendment significance.8
[Footnote] 8 Thus, our theory is not that the Fourth Amendment is concerned with “any technical trespass that led to the gathering of evidence.” Post, at 3 (ALITO, J., concurring in judgment) (emphasis added). The Fourth Amendment protects against trespassory searches only with regard to those items (“persons, houses, papers, and effects”) that it enumerates. The trespass that occurred in Oliver may properly beunderstood as a “search,” but not one “in the constitutional sense.” 466 U. S., at 170, 183.
Also, some areas extend your car to be considered part of your home.
Since late 2008, your car is your home for much of the US.
Ceci n'est pas un sig.
Recently (within the past year) they passed an update to the Castle Defense in PA. The updated law states that you are allowed to use deadly force to defend yourself when in any location you are legally allowed to be. I'm not sure how long ago your example happened, but we had a case where a man shot and killed his wife's boyfriend with a bow and arrow and wasn't charged because of the new law. All you need to do is feel threatened and I don't know about you, but I find someone trying to steal my car very threatening. The new law puts the burden on the prosecutors to prove that you were not acting in self-defense.
Oddly they specified that shooting law enforcement personal is not protected, at least according to the mailing I got from my state representative explaining the changes.
Here, if somebody tries to steal your car, you can shoot them dead. And no, I do not live in Texas.
What a strange concept. How about if someone steals your lunch? Your bicycle? Your wallet? A pity that we now value personal property more than human life. That means everyone's life is worth less, not just the perp's.
Is it legal to shoot the person after they've been arrested, maybe on trial? It's a crazy and inconsistent law if you, the victim cannot shoot and kill the person at any time afterward.
The shepherds did so well protecting the flock that the sheep no longer believed that wolves existed.