Can Big Brother Track You?

 

On November 8th, the Supreme Court will hear oral argument in United States v. Jones.  I only know the bare details of the case, but it’s so interesting, I wanted to see what the Rico Community has to say. 

The question is whether the Constitution allows police to put a GPS tracking device on a car without either a warrant or the owner’s permission; and whether the Constitution is violated when police use the tracking device to keep track of the car’s whereabouts.  That’s right, in this case, law enforcement agents installed a GPS device in a suspect’s car when he wasn’t looking.  They then followed his movements until they found illegal drugs (a lot of them, apparently).

Personally, I don’t want the police installing things in my car without my permission (unless doing so would stop that weird knocking sound I’ve been getting).  The question is whether the Constitution forbids this.  (See Orin Kerr’s essay at Scotusblog).  Here’s what the Fourth Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The police can observe my house and my car from the outside without triggering a “search,” but once they go inside my car?  Isn’t that like going inside my house?  Thoughts?

There are 38 comments.

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  1. Profile Photo Inactive
    @Nyadnar17

    Sadly I think they can. It has been show that replacing a human police officer with a machine is not an invasion of privacy(i.e. security cameras). As far as I know it is not illegal to place those stupid brochure/ads in your window wiper. Therefore as long as the Police Officer did not actually enter the car I don’t think it will be ruled unconstitutional for them to place a tracking device on the car with a warrant.

    I think Congress would have to pass a separate law banning the practice without a warrant. IMO the Constitution does not protect us from this.

    • #1
  2. Profile Photo Member
    @Misthiocracy
    Adam Freedman: The police can observe my house and my car from the outside without triggering a “search,” but once they go inside my car? Isn’t that like going inside my house? Thoughts? ·

    In my humble opinion, placing a tracking device on the outside of a vehicle is not the same as searching the inside of a vehicle.

    I presume that most people would have no objection if a police officer happened to notice a suspect’s car outside a suspicious location and wrote a note in a notepad regarding the location.

    I also presume that most people would have no objection if a police officer physically follows a suspect.

    IMHO, placing a tracking device on a suspect’s vehicle is simply a more efficient method of achieving the same end.

    The vehicle is not being searched. Rather, the vehicle’s location is merely being noted. As such, I do not believe it violates the Fourth Amendment.

    If it’s illegal for police to track a vehicle electronically, then it should also be illegal for police to physically follow a vehicle and take note of its location.

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    @wilberforge

    Some states have upheld the practice to date. The other issue is the comfy relationship OnStar has developed with law enforcement and the FBI. The cell phones in the autos are activated without the owners knowledge for eavesdropping.

    At least that still requires a warrant. The FBI has nabbed some big fish in this way.

    A very uncomfortable circumstance when function creep is factored in.

    • #3
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    @ShawnB

    I cannot recall whether the Supreme Court equated a car to a home, or if it limited searches of cars becauase our “papers and effects” are in our cars. If it were equated to a home, it is a phony construct under the 4th amendment and a policy preference. Certainly the Founders had the equivalent of cars that could have been alluded to if not mentioned expressly. To the extent the protection of the car is to protect the “papers and effects” within the car, attaching a locator to a car does not invade that province of “privacy.” It does not give the government access to my papers and effects anymore than photographing my car running a red light does. The goverment could easily dedicate a satellite in geo-synchronous orbit to track my car overhead everyday, all day if it chose to, and while that would be an incredible waste of resources and unwise, no one would say it was unconstitutional or a “search.”

    Where I am at any given point in the day when I am out on the street is not private, it is quintessentially public.

    • #4
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    @JimChase

    Might there be an equivalency between GPS-tracking and domestic wiretapping? In other words, since domestic wiretapping usually requires a warrant, couldn’t the same argument be made for GPS tracking?

    • #5
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    @JerrytheBastage

    If I find the GPS and take ownership, am I required to remove it, or can I simply wait and charge the police officer with theft when he recovers it?

    • #6
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    @Anon

    And if the police used a bloodhound to track a car or a person, would that, too, be unconstitutional? Is there a constitutional distinction between the two tracking methods?

    • #7
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    @Misthiocracy
    Jerry Broaddus: If I find the GPS and take ownership, am I required to remove it, or can I simply wait and charge the police officer with theft when he recovers it? · Oct 24 at 1:09pm

    You just broke my fragile little mind.

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    @midnightgolfer

    We now live in a time when realtime tracking of anyone, by anyone, at a very affordable cost, means that what we had developed as a society as a ‘reasonable expectation of privacy’ in public is changing. Qik, Ustream, cellphone video, FLIR, facial-recognition, gesture-recognition, red light cameras, automated speeding traps, easy-pass rfid tracking, drones, dirigibles… all are becoming ubiquitous, and not just for law-enforcement use, but for everybody.

    I wish that the government would limit itself, and recognize it all as ‘unreasonable’ and require the issuance of a warrant before using any of it, and that the people should be allowed to use all of it to watch the police, whenever they want.

    Was it illegal for me to place one of these trackers on the squad car of the officers who made me erase the memory card of my camera, last time I was in a public place, filming before they even arrived on the scene, before they accused me of filming them on purpose?

    Unreasonable for me to have bought an old Audi A8, specifically because it has an aluminum frame and body?

    • #9
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    @CoolHand

    Would they not need a warrant to come onto your property to plant said device?

    Just ’cause they’re cops doesn’t mean they get to sneak around people’s property willy nilly.

    If you park on the street, that’s one thing, but around here, they’d have to come several hundred feet onto someone’s private property to get to their car/truck/tractor/etc. Probably through at least one gate.

    If the action requires trespassing of that nature, wouldn’t it require the issue of a warrant?

    • #10
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    @JeffY

    This seems very simple and obvious to me. Do I have the right to attach a number sticker to my neighbor’s car, to make it easier to follow him? No. It’s a criminal violation of his property rights.

    Can the state attach a device to my property, to make it easier for them to follow me? No. It’s a criminal violation of my constitutional rights under the 5th and 9th amendment.

    Under the 5th, private property cannot be “taken for public use” without due process and just compensation. That includes the public use of carrying a government owned tracking device.

    Under the 9th, common law rights apply against the government. The government may not dump anything, including any device, on private property without the owner’s permission or due process as a taking under the 5th amendment.

    • #11
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    @wilberforge
    Misthiocracy

    Jerry Broaddus: If I find the GPS and take ownership, am I required to remove it, or can I simply wait and charge the police officer with theft when he recovers it? · Oct 24 at 1:09pm

    You just broke my fragile little mind. · Oct 24 at 1:13pm

    Actually, if you find a GPS device planted by the police and remove it…..You will be charged with theft of police equipment. And they will win the case, it has been done already.

    • #12
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    @JeffY
    wilber forge

    Actually, if you find a GPS device planted by the police and remove it…..You will be charged with theft of police equipment. And they will win the case, it has been done already. · Oct 24 at 2:20pm

    I believe you. It is completely insane, unjust, and unconstitutional. Did I mention unconscionable?

    • #13
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    @M1919A4

    Around here, at least, we don’t like people (including the police) messing with our families, dogs, or pickups. My hunch is that juries would not respond well to evidence gathered by means of sneaking a transponder onto a vehicle and “following” it in that fashion.

    I reckon that most people have nothing to hide, but nobody whom I know wants the law or anybody else keeping a record of where he goes and how long he stays. I hope that the Court holds the evidence unconstitutional.

    • #14
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    @KCMulville

    Is tailing someone -anyone- against the law? The movement of a car seems to be a public event that anyone can witness.

    On the other hand, if you find the device on your car, I also see nothing unconstitutional about putting it on your neighbor’s car, or in a public toilet, or simply crushing it to dust under the wheel – and then have your lawyer demand to know why you’re being investigated.

    • #15
  16. Profile Photo Coolidge
    @FakeJohnJaneGalt
    M1919A4

    I reckon that most people have nothing to hide,

    I do. Given the number of laws and the breath of their scope in our current society almost everybody violates the law sooner or later. The fact that some government agency has not used them against you yet does not mean that they will continue to do so. Want some examples try this link.

    http://www.threefelonies.com/Youtoo/tabid/86/Default.aspx

    • #16
  17. Profile Photo Member
    @

    If you find such a device two methods that you can use to impair it’s use are: throw said device in a microwave then put it back on your car, or you can simply get a magnet and brick the thing.

    A magnet won’t leave fingerprints.

    • #17
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    @JimmyCarter

    If they don’t have a warrant, then have the officers charged with stalking.

    • #18
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    @Foxman

    I believe that part of this case is where the device was attached to the car. I think it goes like this:

    The device was attached to the car while it was parked in the parking lot of an apartment complex. This was deemed a public space and as such a legal placement.

    If the car had been parked in the driveway of the suspect’s house, this would have been illegal because it was done on the suspect private property.

    Being that more lower income people live in apartments, this seems to discriminate based on income.

    • #19
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    @blhbork21

    This is actually a really interesting issue I had to write about for school. I think the best argument I read in a lower court opinion was that the police are allowed to enhance their five senses, for example by using a flashlight. But using a GPS tracker does far more than simply enhance an officer’s senses, it accomplishes what it would be virtually impossible to do: have an officer physically follow a vehicle 24/7 for an extended period of time, which is why that court said it violated the 4th. So, generally there is a lessened expectation of privacy in cars b/c everyone can see them, but is there a greater expectation of privacy in the total movement of your car in an extended amount of time? Also, are there trespass issues about coming onto someone’s property to attach the device? The 9th circuit says no. Very interested to see how this one turns out.

    • #20
  21. Profile Photo Member
    @DuaneOyen

    You have Silverman against Kyllo. I have a sneaking hunch that Kyllo might govern here.

    Interestingly, the FLIR search conducted from the street in Kyllo was upheld by the 9th Circuit, and reversed by SCOTUS on a Scalia opinion. The question here comes down to whether or not your bumper is a place where you have a reasonable expectation of privacy. Maybe the defendant should sue for trespassing.

    • #21
  22. Profile Photo Member
    @Misthiocracy

    Another thought: While I do not believe it would be unconstitutional, I would suspect many judges wouldn’t give much weight to the evidence, because the data would be terribly unreliable from a forensic point of view.

    Look at it this way: If a police officer physically follows a suspect, the office can testify in court that he/she actually witnessed the suspect’s movements.

    On the other hand, if the officer places a tracking device on a vehicle which logs the vehicle’s movements, a good defense attorney would be able to poke holes in the data.

    How does the officer know that the device was on the suspect’s vehicle at all times if the officer did not witness the vehicle’s movements? Could the suspect not have discovered the device and placed it on a different car?

    How does the court know that the officer didn’t simply manufacture the GPS data?

    The GPS data would be constitutional, but I doubt it would be very useful as evidence in court.

    • #22
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    @Illiniguy

    1. Did the mere fact of following the defendant for a month via GPS, when other means of surveillance would provide less information of the defendant’s whereabouts violate his “reasonable right to privacy”? From the Appellate decision:

    “The words “reasonable expectation of privacy” themselves suggest no such element. The expectation of privacy is on the part of the observed, not the observer…[T]he degree of invasion of that expectation may be measured by the invader’s intent, but an invasion does not occur unless there is such a reasonable expectation.”

    Simply because the GPS covered activities not relevant to the investigation, the defendant still had no reasonable expectation of privacy at any time while he was driving. The cops win on this point.

    2. There’s a property-based Fourth Amendment claim that placing the device was a violation of those rights, the Court said:

    In Silverman the Court concluded that installation of a listening device on the defendants’ property (by accessing a heating duct in a shared wall of the defendants’ row house) was subject to the Fourth Amendment.”

    If Silverman’s still good law, the defendant wins on this point.

    That’s my 2 cents worth.

    • #23
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    @WhiskeySam

    I guess that depends on the definition of “papers and effects”. If someone’s automobile is included, then being secure sounds to me like law enforcement has no right to tamper with my vehicle in any way without probable cause in which case they should get a warrant. This sounds like the cops were trying to cut corners and then play semantic games to cover themselves for not bothering to get a warrant.

    • #24
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    @RobertELee

    We’ve already gotten to the point the TSA and police can stop us at random to see if we might be breaking a law without a warrant. It used to be that the rights of the individual were the yardstick these things were measured by. Now it’s the right of the state that is the default and the individual is a distant second.

    • #25
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    @Nyadnar17
    Misthiocracy:

    How does the court know that the officer didn’t simply manufacture the GPS data?

    The GPS data would be constitutional, but I doubt it would be very useful as evidence in court. · Oct 24 at 12:08pm

    Manufacturing GPS data is pretty much the same as lying under oath. Pretty sure that wouldn’t be an issue. As to the rest of it, I don’t think the actual movements are the GPS are used in court. Rather they use the movement to find a pattern and then increase searches/surveillance on the points of interest that stand out. In this case it appears they just noticed the suspect seems to visit a location there was no real reason for them to visit and when they searched that place they found a bunch of drugs.

    • #26
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    @TomPaine

    Yet another reason to end the stupid, futile “war on drugs”, which has turned out, increasingly, to be an assault on privacy.

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  28. Profile Photo Member
    @Misthiocracy
    Nyadnar17 In this case it appears they just noticed the suspect seems to visit a location there was no real reason for them to visit and when they searched that place they found a bunch of drugs.

    They’d need more evidence than “the suspect went there a lot” to get a search warrant or to prove probable cause.

    Nyadnar17 Manufacturing GPS data is pretty much the same as lying under oath. Pretty sure that wouldn’t be an issue.

    The defense doesn’t need to prove the GPS data was manufactured. The defense simply needs to provoke reasonable doubt. The onus would be on the police to prove that the GPS data is genuine and accurate. How would they do that?

    In short, I see it as a potential investigative tool, but not a particularly effective source of direct evidence.

    • #28
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    @StuartCreque

    Pretty much every automobile in America has a tracking device installed: it’s called a license plate. Every movement of your vehicle on the streets and highways can be directly observed. The GPS device — assuming it’s attached magnetically to the outside of the vehicle and not inside the passenger compartment, engine compartment or trunk — only allows a more labor-efficient means of following a vehicle’s movements. And where you go in your car on public roads is not protected private information.

    • #29
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    @Grendel

    Meter maids can chalk your tire. I don’t see any problem with electronic surveillance. The actual data are not likely to be introduced as evidence. They just make it easier for the police to be on the scene when suspected illegal activity is likely to occur.

    • #30

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