GPS tracking, cars, and warrants

[88GT]

I apologize if this is a repeat. I did a search for the latest coming out of the courts on this issue and only found This.

But in light of This here bit o' news, where does the power to track vehicles with GPS stand?

The meat of the article, unedited, bolding mine to highlight the details.

The appellate court's ruling essentially gives law enforcement agencies in the nine Western states under the Ninth Circuit's jurisdiction the legal authority to surreptitiously enter personal property and attach a GPS tracking device on vehicles parked there without first obtaining a warrant.

Over a four month period, DEA agents repeatedly monitored Pineda-Moreno's movements using different GPS tracking devices without obtaining a warrant. On two occasions, agents sneaked into his driveway before dawn to affix the tracking devices to the undercarriage of his Jeep.

Information gathered from the tracking led to Pineda-Moreno's subsequent arrest and indictment.

Pineda-Moreno pleaded guilty to the charges in an Oregon district court on the condition that he would be allowed to appeal the ruling to the Ninth Circuit court. The district court had rejected his request that the evidence obtained from the GPS devices be suppressed.

A three-judge Ninth Circuit panel of judges upheld the district court's ruling.
The decision was not unanimous. In a strongly worded dissent, Chief Judge Alex Kozinski said that because of the ruling, "1984 may have come a bit later than predicted, but it's here at last."

In the 10-page ruling, two of the Ninth Circuit judges held that the DEA agents did not violate Pineda-Moreno's constitutional rights. The judges ruled that because Pineda-Moreno's had not taken specific steps to exclude passersby from his driveway -- by installing a gate por posting no trespassing signs, for instance -- he could not claim reasonable privacy expectations.

The Ninth Circuit panel ruled that the actions by the agents were comparable to the delivery of newspapers to the house, or the retrieval of a ball accidently thrown under the vehicle by a neighbor.

Dissenting Judge Kozinski, however, contended that most people in the U.S don't expect that a car parked in their driveway "invites people to crawl under it and attach a [tracking] device. There is something creepy and un-American about such clandestine and underhanded behavior."

Basically, Massachusetts says GPS is okay if a warrant is obtained, but a federal Court of Appeals has ruled that warrants are unnecessary. What's the deal with contradicting opinions in different areas at different levels? Are only the states in the 9th Circuit affected by this most recent ruling? Is MA's SJC ruling limited to MA? I'm not sure how these things play out practically.

I've been discussing this with a FB friend who also happens to be a lawyer. He's not at all concerned since the "location of a car on a public street is public information."

Seems to me that the trespass and entry into a car without permission would at least violate the spirit of the 4th, if not the letter. IMO, it's not about the tracking of the vehicle since my lawyer friend is technically correct and such information could be ascertained the good old-fashioned way. What I find deplorable is the idea that private property rights are considered moot in this case, except for only the rich, as the dissenting judge illustrated in his opinion.

I'm also concerned with opportunity for rampant abuse since the normal check to this kind of power is exactly what the courts have now ruled is unnecessary: the warrant.

 

[E5RANGER375]

WOW!!! EPIC JUDICIAL FAIL!!!! When are they gonna quit interjecting personal opinion in the law? for all he could have known the guy was trying to blow up his car ..... plurp, plurp, go go gadget car flame thrower

well im going out tonight and putting NO TRESSPASSING signs on both my properties. so after I do then do i have the right to kick someones ass if they walk onto my property?

a shotgun shell trip line with rock salt wont kill you but it will hurt like a mo fo. and tomorrow I will have my new GSD, who im gonna train to kill anyone uninvited to my house.

 

[RichardR]

Chief Judge Alex Kozinski said that because of the ruling, "1984 may have come a bit later than predicted, but it's here at last."

I agree with Chief Judge Alex Kozinski, I cannot believe that any court, not even the 9th Circuit would uphold such a blatant, outright violation of the 4th Amendment.

I wonder what George Washington & Thomas Jefferson would think?

 

[E5RANGER375]

I wonder what George Washington & Thomas Jefferson would think?

I think the general would be crossing tha patomic again.

 

[Fargo]

Fortunately this precedent doesn't bind in Indiana and I doubt the Indiana supreme court would find it constitutional under Indiana's constitution. I agree, the opinion is BS.

Joe

 

[Denny347]

I would agree that Indiana Supreme Court nor our Circuit Court here would use this ruling as a standard. The 9th I believe is the most overturned Circuit in the Nation. I doubt this will survive a USSC review and is an asinine ruling. Get a warrant (not hard) and all is well.

 

[Bill of Rights]

Just curious... is everyone upset about this because they put the GPS tracker on the car or because they did it in his driveway instead of in the Wal Mart parking lot? In other words, would you be as upset if they'd not come onto the car owner's property to do the job, considering they did not have to enter his car? The information could be readily obtained, it just would have involved a cost of manpower to "tail" the driver over that period of time. I still think it's sneaky and underhanded, but I'm not sure placing the tracker violates any laws. I'd love to be wrong about that.

Blessings,
Bill

 

[Ironsights]

I can't speak for anyone else, but I'm upset at the thought of the cops being able to trail someone for weeks on end without a warrant. I'd call that harassment.
This law ruling essentially gives them the right to monitor all movement in their state, without consent, with or without reasonable suspicion.
And, yes, it does violate law. Constitutional law.

From: Fourth Amendment to the United States Constitution - Wikipedia, the free encyclopedia
Definition of "search"

In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that a search occurs only when 1) a person expects privacy in the thing searched and 2) society believes that expectation is reasonable.
In Katz, the Supreme Court ruled that a search had occurred when the government wiretapped a telephone booth.[21] The Court's reasoning was that 1) the defendant expected that his phonebooth conversation would not be broadcast to the wider world and 2) society believes that expectation is reasonable.
This is a threshold question in Fourth Amendment jurisprudence, since the Fourth Amendment only protects against unreasonable searches and seizures. If no search or seizure has occurred, the court ends its analysis.


I'm almost certain that Pineda-Moreno did not expect his location to be broadcast.

 

[E5RANGER375]

Just curious... is everyone upset about this because they put the GPS tracker on the car or because they did it in his driveway instead of in the Wal Mart parking lot? In other words, would you be as upset if they'd not come onto the car owner's property to do the job, considering they did not have to enter his car? The information could be readily obtained, it just would have involved a cost of manpower to "tail" the driver over that period of time. I still think it's sneaky and underhanded, but I'm not sure placing the tracker violates any laws. I'd love to be wrong about that.

Blessings,
Bill

Im upset that they placed the device and also how they did it. secret police ring a bell?

 

[Bill of Rights]

Ironsights, what was searched? What was seized? In a phone booth, you close the door and you expect your conversation to be private. Could Katz have made the same claim if he'd been on a cell phone walking through a store or riding a bus?

They didn't bug his conversations, that we know of. If the 4A has been taken to regard seeing something in plain view IN a car to be enough for PC or RAS for a cop to either search immediately or to detain pending a search warrant (abrogating the expectation of privacy), then certainly where that car went on public roads was similarly not private.

I think this is going to come down to the same thing as installing motion-sensors and cameras in gov't buildings rather than hiring more live guards. It's just automating the task.

Ranger, I don't like either one of those things either, but does a cop have to have a warrant to follow you on public roads?

Blessings,
Bill

 

[88GT]

I think this is going to come down to the same thing as installing motion-sensors and cameras in gov't buildings rather than hiring more live guards. It's just automating the task.

The failure in this logic is in the assumption that the scenarios are equal in terms of the person of interest actually being there. In your example, I can avoid by choice the "intrusion" of my "privacy" by avoiding places that have them. No such avoidance is possible when MY CAR has become the vehicle of said intrusion.

Ranger, I don't like either one of those things either, but does a cop have to have a warrant to follow you on public roads?

Blessings,
Bill

No, but there is something to be said for the trespass and possible entry into the vehicle to affix the device. The standard of privacy deemed by the court to be non-existent regarding the level of access to one's driveway is a farce. I invite the mail to be delivered by having a mailbox, just as I invite the newspaper to be delivered by having a subscription. The ability to walk onto someone's property without impediment (gates, fences, signs prohibiting, etc) does not make it acceptable to the property owner. And the state doing so for criminal prosecution purposes makes it even less acceptable. Had they affixed the device while the car was parked in public or in some parking lot, and assuming entry into the vehicle is not necessary, I'd be a lot more comfortable with it.

That is, of course, until one recognizes the gross opportunities for abuse and the extension of power/authority of the state over the citizenry this ruling provides.

This isn't about police tracking a suspected criminal. This is about police not having to justify tracking anybody. The warrant requirement means police have to provide justification of a reasonable nature to track someone in this manner. Not requiring the warrant eliminates any proof of justification and leaves it completely up to the whims of the individual to determine how to wield that power.

 

[Fargo]

Ironsights, what was searched? What was seized? In a phone booth, you close the door and you expect your conversation to be private. Could Katz have made the same claim if he'd been on a cell phone walking through a store or riding a bus?

Both you and your vehicle are being surveilled. As long as they are in public, there isn't a constitutional question. However, the moment you pull it in your garage and close the door, drive it into a warehouse, drive it up a private drive, a search certainly is occurring; surveillance is being conducted in a place where you have an expectation of privacy.

The logical conclusion of this opinion is that it would be constitutional to attach such a tracker to your person. After all, they could follow you around and watch you couldn't they?

They didn't bug his conversations, that we know of. If the 4A has been taken to regard seeing something in plain view IN a car to be enough for PC or RAS for a cop to either search immediately or to detain pending a search warrant (abrogating the expectation of privacy), then certainly where that car went on public roads was similarly not private.

Cars are not limited to public roads.

I think this is going to come down to the same thing as installing motion-sensors and cameras in gov't buildings rather than hiring more live guards. It's just automating the task.

Not even close. For one, cars leave public space. For two, at least in Indiana the placement of the tracker would likely constitute the crime of Criminal Conversion.

IC 35-43-4-3
Conversion
Sec. 3. (a) A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a Class A misdemeanor.
(b) The offense under subsection (a) is a Class D felony if committed by a person who exerts unauthorized control over the motor vehicle of another person with the intent to use the motor vehicle to assist the person in the commission of a crime.
(c) The offense under subsection (a) is a Class C felony if:
(1) committed by a person who exerts unauthorized control over the motor vehicle of another person; and
(2) the person uses the motor vehicle to assist the person in the commission of a felony.
As added by Acts 1976, P.L.148, SEC.3. Amended by Acts 1977, P.L.340, SEC.46; P.L.143-2005, SEC.2.

Remember, the 4th Amendment does not GRANT anything to the police, it is solely a LIMITER. Just because something may be permissible under the 4th Amendment does not de facto mean it is legal.

Best,


Joe

 

[SSGSAD]

T A G ...

 

[IndyBeerman]

The Ninth Circuit panel ruled that the actions by the agents were comparable to the delivery of newspapers to the house, or the retrieval of a ball accidentally thrown under the vehicle by a neighbor.

I think this paragraph right here sets up any illegal GPS attachment for appeal because attaching a GPS device is not comparable to a delivery or the retrieval of a newspaper, one is a service that is delivered to you door, the other is a item that landed in your yard.

The attachment of a GPS device is clearly an entry attempt to the property by law enforcement agents. Otherwise peeping toms could use the same exact defense.

 

[rmabrey]

The judges ruled that because Pineda-Moreno's had not taken specific steps to exclude passersby from his driveway -- by installing a gate por posting no trespassing signs, for instance -- he could not claim reasonable privacy expectations.

So if his door is unlocked, he hasn't taken specific action to exclude people from walking in and seeing (insert illegal action here) that otherwise would not have been seen.

Thats what I get out of it anyway

 

[Ironsights]

Ironsights, what was searched? What was seized? In a phone booth, you close the door and you expect your conversation to be private. Could Katz have made the same claim if he'd been on a cell phone walking through a store or riding a bus?

They didn't bug his conversations, that we know of. If the 4A has been taken to regard seeing something in plain view IN a car to be enough for PC or RAS for a cop to either search immediately or to detain pending a search warrant (abrogating the expectation of privacy), then certainly where that car went on public roads was similarly not private.

I think this is going to come down to the same thing as installing motion-sensors and cameras in gov't buildings rather than hiring more live guards. It's just automating the task.

Ranger, I don't like either one of those things either, but does a cop have to have a warrant to follow you on public roads?

Blessings,
Bill

Apparently you missed some of my post, or ignored it. I'll repeat it here, so that you can try to understand.
1) the defendant expected that his phonebooth conversation would not be broadcast to the wider world and 2) society believes that expectation is reasonable.

Now, with that being said, I also should point out that multiple states have Vehicle Tampering Laws.
For instance:
Maryland Transportation Section 27-101

Any person who is convicted of a violation of any of the provisions of the following sections of this article is subject to a fine of not more than $500 or imprisonment for not more than 2 months or both:
(3) § 14-104 ("Damaging or tampering with vehicle");

North Carolina Laws 20-107 - Injuring or tampering with vehicle


§ 20-107. Injuring or tampering with vehicle.
(a) Any person who either individually or in association with one or more other persons willfully injures or tampers with any vehicles or breaks or removes any part or parts of or from a vehicle without the consent of the owner is guilty of a Class 2 misdemeanor.

New York State Court of Appeals has ruled that when state police placed a GPS transponder inside the bumper of a van owned by Scott Weaver of Watervliet in December 2005 and left it there for 65 days. By doing so, decided the court, the state police had "violated a criminal suspect’s rights" under the constitution of New York state. Using a GPS tracking device without a warrant, ruled the court, was an illegal search.



As you can see, some courts already consider this illegal activity. The public at large has a reasonable expectation of privacy concerning their vehicle.

Now considering that these "LEO's" are committing a crime of trespass, consider also that many states, including Indiana, have the Castle Doctrine.

A Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal doctrine claimed by advocates to arise from English Common Law[1] that designates one's place of residence (or, in some states, any place legally occupied, such as one's car or place of work) as a place in which one enjoys protection from illegal trespassing and violent attack.

In general, one (sometimes more) of a variety of conditions must be met before a person can legally use the Castle Doctrine:

• The intruder must be acting illegally—e.g. the Castle Doctrine does not give the right to attack officers of the law acting in the course of their legal duties (This is where a warrant would come in REAL handy.)
• The occupant(s) of the home must reasonably believe that the intruder intends to inflict serious bodily harm or death upon an occupant of the home (If this man's vehicle has ever been tampered with in the past, he has a reasonable belief.)
• The occupant(s) of the home must reasonably believe that the intruder intends to commit some other felony, such as arson or burglary.

Someone finds some idiot under their car in the middle of the night, it wouldn't be crazy to believe that said idiot was trying to commit a felony, or worse yet, kill them.

"Stand your ground" governs U.S. federal case law in which self-defense is asserted against a charge of criminal homicide. The Supreme Court ruled in Beard v. U.S. (1895) that a man who was "where he had the right to be" when he came under attack and "...did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm...was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground."

Now, to answer your questions:
What was searched? His location. (although, legally, one could argue that the police had to "search" for a place to attach the device.)
What was seized? His right to privacy.
Could Katz have made the same claim if he'd been on a cell phone walking through a store or riding a bus? No, but he wasn't doing that,was he? His vehicle (his private property) was tampered with on his private property.

"If the 4A has been taken to regard seeing something in plain view IN a car to be enough for PC or RAS for a cop to either search immediately or to detain pending a search warrant (abrogating the expectation of privacy), then certainly where that car went on public roads was similarly not private."

The LEO's did not see anything IN PLAIN VIEW. They tracked him electronically after tampering with his property. Nor did they search immediately or...detain pending a search warrant. So, your argument is flawed.

 

[E5RANGER375]

Ranger, I don't like either one of those things either, but does a cop have to have a warrant to follow you on public roads?

Blessings,
Bill

I will call 911 on a cop that follows me just the same as I would on another car. police dont have the right to harrass us. either pull me over or move on by. S*** or get off the pot.

I bet if I followed cops around long enough I will eventualy catch ALL of them do SOMETHING either illegal "technically" or at least against policy. no one, and I mean NO ONE is perfect, but do we deserve to get nailed for every mistake? i dont believe so. I dont think thats why we formed law enforcement in this country to be a legal harrassment force. thats what it seems like they are becoming now days and they like it.

 

[SavageEagle]

Just curious... is everyone upset about this because they put the GPS tracker on the car or because they did it in his driveway instead of in the Wal Mart parking lot?

As far as I can think, anytime they enter your property, they would need a warrant. This would include attaching anything to your property. I would think that attaching a device to your car would be the same as attaching a device to a tree sitting on your property line. They didn't have to enter your property to attach the device to your tree, but they still touched your property.

So it would be reasonable to say that they would need a warrant to do ANYTHING to your property, be it home, land, trees, plants, grass, dirt, car, truck, bicycle, dog, whatever, no matter where said property was located.

Chances are the tracker was located either in or under the vehicle. In order to get something attached UNDER the vehicle, they would have to ENTER the undercarriage with their hand. That would be entering said person's property.

So technically, yes, IMHO, they violated his 4th amendment. No, I don't condone what he was doing, but that doesn't mean they went about it right.