Appeals Court Says Feds Need To Get A Warrant To Attach GPS Device On A Car
from the this-is-good dept
One of the more annoying things about the current Supreme Court is how it always seems to figure out ways to avoid actually tackling the key questions that people are asking. For example in the Jones v. US case, the court very carefully tiptoed around actually answering the question of whether or not law enforcement putting a GPS on a car required a warrant. Some of the Justices suggested it should, but it wasn't part of the official ruling. So, it gets left out there in the ether for people to try in other lawsuits. And now an appeals court has ruled on the issue, saying that a warrantless GPS tracking of someone's car is a 4th Amendment violation. The court goes into a full exploration of the 4th amendment and how it applies here. It's well worth reading (starting around page 18). Law enforcement's argument is in for a tough time:We therefore begin with the following observation: under the physical intrusion theory of the Fourth Amendment, the police actions in this case — i.e., physical entry upon and occupation of an individual‟s house or effects for purposes of ongoing GPS tracking — are highly disconcerting.It then goes through a thorough look at each of the government's arguments for why a warrantless GPS search could be deemed "reasonable" and finds each one wanting. The main one is that the government insists that if there's a "reasonable suspicion," they should be able to do a warrantless search. The court's not buying it.
While the interests the police wished to further in this case are certainly important, the same interests arise in every investigation where the police have a potential suspect. We are hard pressed to say, therefore, that the police can — without warrant or probable cause — embark on a lengthy program of remote electronic surveillance that requires almost no law enforcement resources and physically intrudes upon an ordinary citizen‟s private property.This is in the third circuit and I'd imagine that there will be an appeal to the Supreme Court. Given the Court's avoiding the question in the Jones case, hopefully it will take it and support the argument that the 4th Amendment does apply to GPS searches and a lack of a warrant is unconstitutional. Of course, what I still don't understand in all of this is why law enforcement seems so averse to actually going out and getting a warrant. Is it really that difficult?
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Filed Under: 3rd circuit, 4th amendment, gps, reasonable, search, supreme court, warrantless
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I'd assume that, considering the warrant application goes before a judge in a courtroom type setting, there is a penalty for perjury on a warrant application.
Note that I'm not saying that I believe law enforcement is lying about why they want to track someone, just saying they'd be a lot less willing to track someone on a "hunch" if there was a possibility of being penalized later because the court decides their assumptions were more like fabrications.
Of course, that's the whole point of the warrant process: to make sure extraordinary measures are only used in cases where they are warranted.
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But warrants also work both ways, if something is seized during a warrant, the cops can't turn around and say "What? I never received that, you're crazy. I never took X evidence". Same goes with anything taken during a warrant, it's meant to preserve evidence and if a policeman wants a conviction, they will want the case to rely on evidence as little as possible and hearsay (that is to say, the RIGHT word of the CORRECT police) as much as possible.
It also is their name on something that could be found to be a gross violation or something that was obtained with malice or ill-proceedings. Which they don't like either because they love flashing their badge when it comes time to own up to their mistakes. A warrant specifically says "This policeman in representing this investigation of this county was given permission by this judge to do *THESE ACTIONS*". Which they don't like one bit, because if it ever comes out that they were done maliciously, there is no denying who authorized it or where it came from.
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Ever read PINAC's Blog?
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Warrants
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You just don't understand POWER, Mike. --Warrants are asking permission.
Thugs accustomed to using gov't power at their arbitrary whim (or more often its "color of law" appearance) don't like any limits being placed on them. You can see this in any video of traffic stop or other "police" action: any little show of resistance and the attack dogs start threatening, and many now go into berserker rage, up to outright murdering people who are no threat at all.
As for the dig: it's actually a back-handed compliment. -- You're welcome. -- I think you'd be wise to muse on that. You are NOT typical of even the general populace, Mike; you seem to believe that reason and persuasion will eventually win the day because most people are rational and only need the case laid out. But that's definitely not true among gov't types.
The world is ruled by thugs who use attack dogs in human form as their muscle.
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Isn't the whole process of getting a warrant supposed to be a way to vet the "reasonable suspicion" as reasonable by a court of law?
I'm sure the cops want to be able to define "reasonable". I know it's worked out reasonably well for the NSA, but that doesn't mean we just get to avoid the 4th Amendment.
If you have "reasonable supicion", go show it to a court, get your warrant, and then spy/track/search. This way there is no question on if it's needed, reasonable, or right as it's already vetted in a court of law.
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No. Not at all.
The Fourth Amendment provides:
While “probable cause” may sometimes be confused with “reasonable suspicion”, they are different standards.
“Reasonable suspicion” is not mentioned in the Fourth Amendment. Instead, “reasonable suspicion” is something the Supreme Court came up with in Terry v Ohio (1968) in order to justify a veteran police officer's unprovoked assault and battery upon some suspicious characters who were probably up to no good, and who thus deserved to be assaulted.
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Alternative
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Maybe they know that the court will refuse to grant a warrant.
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It's probably not that. The courts tend to be eager to approve search warrants. However, a search warrant does mean there's a public record of things like: why they're searching, what they're looking for, where they're looking, when they looked, etc.
In other words, it's a mechanism of transparency. And we know how much they love transparency.
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The only explanation is what you just gave and it provides further evidence to why the 4th Amendment is damn important.
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Look how the FISA courts give the NSA the same ability - all without due cause or concern for the 4th amendment. Or look to the FBI and their abuse of national security letters. It is unfortunately the status quo / modus operandi.
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Why law enforcement doesn't want warrants.
On the other hand, something that is "warrantless" can be applied to everyone, all the time.
My general rule of thumb when I see a method of surveillance that does not require a warrant is to assume that it is already being used on everyone, all the time. That assumption has proven to be conclusively true many times in the last six months or so.
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The spirit and function of the 4th was to make sure people were not laid bare in front of capricious people with the power to harm them on a whim.
Physically putting a GPS is no different than tracking someone using cellphone towers in the end the same information with varying degrees of visibility is obtained, and so the 4th should be there to protect that data no matter how it was collected.
We can see law enforcement and other government branches abusing their power on a daily basis they didn't stop being vindictive, capricious, overboard or whatever other reason that exist, human nature didn't change in thousands of years it is still the same.
So why are we having all those debates about if it is physical, third party or from the ether the origin of the information should make no difference, the spirit of the constitution is clear on what it should protect, maybe is time for everyone to start caring once again, because that rule there is important.
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Accountability
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They wanted a loophole. They can't have it.
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Score 1 for the good guys!
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If only...
Attorney: Objection! They did not have a warrant for that!
Judge: Is that true?
Police: That would have taken time and the FISA court just agrees with whatever we tell them with no oversight.
Judge: True dat. Objection overruled!
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How much is on the Courts?
But, I also have to wonder how much has to do with the courts as well? Many courts seem to be backed up with cases, and judges love to clear their dockets. So adding warrants to a judges docket has the potential, I would think, to back things up even more. That means more waiting for everyone. Hard to say how much this factors in, but it is my $0.02 worth.
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