Court Rejects Warrantless GPS Tracking

[Wild Cobra]

I never claimed that you did not. I actually debated you on both. I don't even know how that escapes you.

Yes we did, and when you interpret federal law to castrate the executive branch, I fail to see how you accept such a premise.

There's nothing grey about conducting an investigation when a judge is involved and a warrant issued. That's why the decision of what's reasonable or not is normally left to the judicial, and not arbitrarily determined by law enforcement (with clear and concise exemptions). That's what check and balances is all about.

I agree with that. In the case of the OP, the FBI was clearly out of line. When we changed topics, and I specifically point out "executive," that's where we drift apart the most. You really confuse me when you apply lower laws to limit the presidential powers. Laws cannot superseded the cons ution. You seem to think otherwise.

As far as data mining goes, since the introduction of the Patriot act, and as far as email is concerned, there's no need for a warrant or a subpoena anymore.

And I only agree with that when the data is freely given rather than by the service provider. I will say it is illegal to compel them to give any information without a warrant. I have also pointed out that "terms and conditions" agreements say that the information may be shared with third parties. I have never seen "terms and conditions" that do not have a law enforcement clause. Have you?

I do personally would like to see the Patriot Act and other laws that reduced that standard done away with, and requiring warrants again to allow access to such do ents. Unfortunately, the idea that we should adjust our interpretation of what the cons ution dictates are our personal privacy rights based on the contemporary boogeyman takes further away from that goal.

We will probably always disagree there. The fourth amendment specifically uses "unreasonable" for the reason as not to give absolute protection for people to commit crimes. It 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..."

It does not say:

"The right of the people to be secure in their persons, houses, papers, and effects, against searches and seizures, shall not be violated..."

And again, a warrant is not required by cons ution. It is a tool for when others attest to a chime committed. The courts and congress can tighten the requirements and require a warrant for law enforcement. However, they cannot do that to executive power, as they are not the executor of law, or above the cons ution.

Your understanding of the 4th amendment is entirely built in your own ideas of how it should be interpreted, as opposed to years of jurisprudence determining how it's indeed interpreted. When you do that, the one insulting everybody's else intelligence is you, not me.

You are using jurisprudence for law enforcement, and applying it to the executive branch, which I do not accept. When speaking of the Patriot act, congress effectively removed many of the requirements that go beyond the simple cons utional ones.

And your interpretation of executive power is just as flawed. Under your interpretation of executive power, Congress is irrelevant. A President could merely govern using Presidential Orders. A quick look at Executive Order 10340 should tell you that the Executive cannot make law.

No. Executive orders cannot violate the cons ution, but that's another topic yet. I think we have too much going on in this thread already to add another tangent. Don't you?

Furthermore, Article 2 clearly states that Congress is indeed in charge of impeaching the officers of the executive branch under certain cir stances.

Why are you going off on tangents? Are you doing such drastic changes in to topic because you are losing this debate?

I see what you said. As I said numerous times, your stance on this issue is, however wrong, clear as day.

We disagree. I accept the legal definitions of words like "warrant," from their defined meaning of the 18th century when it comes to the cons ution. We cannot allow modern applications of words to change the meaning of the cons ution. You seem to think we can.

[Wild Cobra]

AMENDMENT 4—SEARCHES AND SEIZURE, page 1283 to 1286:

Scope of the Amendment.—The language of the provision which became the Fourth Amendment underwent some modest changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madison’s introduced version provided ‘‘The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.’’ As reported from committee, with an inadvertent omission corrected on the floor, the section was almost identical to the introduced version, and the House defeated a motion to subs ute ‘‘and no warrant shall issue’’ for ‘‘by warrants issuing’’ in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified cons utional provision.

As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendment’s two clauses must be read together to mean that the only searches and seizures which are ‘‘reasonable’’ are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are ‘‘reasonable’’ searches under the first clause which need not comply with the second clause. This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute which has run most consistently throughout the cases involving the scope of the right to search incident to arrest. While the right to search the person of the arrestee without a warrant is unquestioned, how far afield into areas within and without the control of the arrestee a search may range is an interesting and crucial matter.

The Court has drawn a wavering line. In Harris v. United States, it approved as ‘‘reasonable’’ the warrantless search of a four-room apartment pursuant to the arrest of the man found there. A year later, however, a recons uted Court majority set aside a conviction based on evidence seized by a warrantless search pursuant to an arrest and adopted the ‘‘cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.’’ This rule was set aside two years later by another recons uted majority which adopted the premise that the test ‘‘is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’’ Whether a search is reasonable, the Court said, ‘‘must find resolution in the facts and cir stances of each case.’’ However, the Court soon returned to its emphasis upon the warrant. ‘‘The [Fourth] Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. In the scheme of the Amendment, therefore, the requirement that ‘no Warrants shall issue, but upon probable cause,’ plays a crucial part.’’ Therefore, ‘‘the police must, whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure.’’ Exceptions to searches under warrants were to be closely contained by the rationale undergirding the necessity for the exception, and the scope of a search under one of the exceptions was similarly limited.

During the 1970s the Court was closely divided on which standard to apply. For a while, the balance tipped in favor of the view that warrantless searches are per se unreasonable, with a few carefully prescribed exceptions. Gradually, guided by the variable expectation of privacy approach to coverage of the Fourth Amendment, the Court broadened its view of permissible exceptions and of the scope of those exceptions.

By 1992, it was no longer the case that the ‘‘warrants-with narrow- exceptions’’ standard normally prevails over a ‘‘reasonableness’’ approach. Exceptions to the warrant requirement have multiplied, tending to confine application of the requirement to cases that are exclusively ‘‘criminal’’ in nature. And even within that core area of ‘‘criminal’’ cases, some exceptions have been broadened. The most important category of exception is that of administrative searches justified by ‘‘special needs beyond the normal need for law enforcement.’’ Under this general rubric the Court has upheld warrantless searches by administrative authorities in public schools, government offices, and prisons, and has upheld drug testing of public and transportation employees. In all of these instances the warrant and probable cause requirements are dispensed with in favor of a reasonableness standard that balances the government’s regulatory interest against the individual’s privacy interest; in all of these instances the government’s interest has been found to outweigh the individual’s. The broad scope of the administrative search exception is evidenced by the fact that an overlap between law enforcement objectives and administrative ‘‘special needs’’ does not result in application of the warrant requirement; instead, the Court has upheld warrantless inspection of automobile junkyards and dismantling operations in spite of the strong law enforcement component of the regulation. In the law enforcement context, where search by warrant is still the general rule, there has also been some loosening of the requirement. For example, the Court has shifted focus from whether exigent cir stances justified failure to obtain a warrant, to whether an officer had a ‘‘reasonable’’ belief that an exception to the warrant requirement applied; in another case the scope of a valid search ‘‘incident to arrest,’’ once limited to areas within the immediate reach of the arrested suspect, was expanded to a ‘‘protective sweep’’ of the entire home if arresting officers have a reasonable belief that the home harbors an individual who may pose a danger.

[ElNono]

Yes we did, and when you interpret federal law to castrate the executive branch, I fail to see how you accept such a premise.

Where did I interpret that? Quote please. I merely said that the executive is not above the cons ution, including the 4th amendment and it's interpretation. There's a reason the judiciary is tasked with determining what's cons utional and what isn't.

I agree with that. In the case of the OP, the FBI was clearly out of line. When we changed topics, and I specifically point out "executive," that's where we drift apart the most. You really confuse me when you apply lower laws to limit the presidential powers. Laws cannot superseded the cons ution. You seem to think otherwise.

When I say law enforcement I'm obviously referring to law enforcement, not the executive. You just tried to make a point about what you think executive power is by answering a comment about law enforcement. Who is drifting?

And I only agree with that when the data is freely given rather than by the service provider. I will say it is illegal to compel them to give any information without a warrant. I have also pointed out that "terms and conditions" agreements say that the information may be shared with third parties. I have never seen "terms and conditions" that do not have a law enforcement clause. Have you?

There are privacy laws (or there were prior to the Patriot Act) precluding companies from sharing you personal information, period. That includes explicitly stating which information was going to be shared with third parties and giving you an option of opting out of such information sharing. You really need to brush up on the Electronic Communication Privacy Act. Last, the law enforcement rule has everything to do with collaborating with law enforcement requests under a subpoena or warrant, not aiding in deliberate data mining. Plenty of case law on this if you even care to look.

We will probably always disagree there. The fourth amendment specifically uses "unreasonable" for the reason as not to give absolute protection for people to commit crimes.

The standard for "reasonable" or "unreasonable" has changed wildly over time. You couldn't possibly claim to know exactly what the meaning of that is on a general scope because not even the Supreme Court over time has been able to do so.

That said, it's exclusive to the judiciary to interpret what "unreasonable" means under the cons ution.

It 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..."

It does not say:

"The right of the people to be secure in their persons, houses, papers, and effects, against searches and seizures, shall not be violated..."

And again, a warrant is not required by cons ution. It is a tool for when others attest to a chime committed. The courts and congress can tighten the requirements and require a warrant for law enforcement.

Completely erroneous conclusion. A warrant is absolutely required by the cons ution when the 'reasonable' standard cannot be met and there is probable cause. "No warrant shall issue"...

However, they cannot do that to executive power, as they are not the executor of law, or above the cons ution.

What seems to escape you is that the Judiciary is the only power setting what the "reasonable" standard is, thus, since the cons ution mandates a warrant when that standard is not met, the executive is absolutely tied to that requirement from the cons ution.

You are using jurisprudence for law enforcement, and applying it to the executive branch, which I do not accept. When speaking of the Patriot act, congress effectively removed many of the requirements that go beyond the simple cons utional ones.

No, I'm tying jurisprudence to the law enforcement case. Which is pretty obvious you don't know much about (and while I don't pretend to be an expert in the field, I've done my due diligence to enter in this conversation).

No. Executive orders cannot violate the cons ution, but that's another topic yet. I think we have too much going on in this thread already to add another tangent. Don't you?

This is yet another flaw in your executive power thinking, and theres actual evidence to the contrary of your view on it. That's exactly why I brought it up. But we can skip right over it if it makes you uncomfortable.

Why are you going off on tangents? Are you doing such drastic changes in to topic because you are losing this debate?

This is the typical you going on the defensive when somebody shoots down in flames your flawed premises. I'm not going on a tangent AT ALL. I'm destroying one by one your misconceptions about executive power.

We disagree. I accept the legal definitions of words like "warrant," from their defined meaning of the 18th century when it comes to the cons ution. We cannot allow modern applications of words to change the meaning of the cons ution. You seem to think we can.

This has nothing to do with modern or ancient definition of words. The cons ution created three independent government branches (none more important than the other), assigned them different powers, and granted very specific rights.

[Blake]

Red light traffic cameras are of dubious cons utional legality to begin with. It's been argued successfully in a plethora of states that they violate the confrontational clause of the sixth amendment.

Sure, people have gotten off on the straight definition of having the right to face their accuser.

I'm also aware of all of the problems and glitches that red light cameras have hade, but in practical theory IMO, there's not much difference of having a cop sitting at an intersection watching cars go through than having an unmanned camera do the same job more efficiently.

[Blake]

You're joking, right?

I take it by your view, the police would need a warrant to make an arrest.

Think about that for a moment, before continuing to look the fool.

Police need a warrant to enter and/or search private property. They can arrest someone in public based on probable cause.

I'd like to see one of your examples so that I can figure out exactly what you are talking about.

[LnGrrrR]

They should only be able to read them with probable cause, which would require a sufficient chain to get to yours or my emails.

Are you aware that a few that have worked in that field have explained how it works? That they DON'T have probable cause, or that the probable cause is so small as to be laughable? For instance, let's say you send an email that contains the words al qaeda, NY, and terrorist in it... this means your email gets sent into a queue to determine the content of the message and whether it's nefarious or incidental. Would you say that cons utes probable cause?

[LnGrrrR]

Now what I didn't say is that if this was done by the executive branch, it would be legal. However, without expressed law by congress allowing the FBI to set their own probable cause requirements, or probable cause spelled out by congress, then this does violate other laws that do exist.

Here's my point though... Congress or FBI or whoever could define what they thought is sufficient for "probable cause", but the courts will be the ones to actually determine that. After all, the FBI could deem that anyone with letters in their name was enough evidence for "probable cause" (a hyperbole of course, but used to illustrate a point).

[LnGrrrR]

I mentioned that the user agreements matter.

I would argue that any clause whre you sign away your 4th Amendment rights is uncons utional. Of course, whether that claim is valid or not won't get tested unless it goes to the SCOTUS.

I have specifically said that the executive branch is not beholden to congressional law. It seems to me that you, think congress can tie the hands of the executive branch.

They can in some matters. Potential SCOTUS judges need confirmation, for one thing. I'm sure there's a few examples out there besides that.

[Wild Cobra]

Police need a warrant to enter and/or search private property. They can arrest someone in public based on probable cause.

I'd like to see one of your examples so that I can figure out exactly what you are talking about.

Bull .

they can enter private property without a warrant, if they have some types of probable cause.

Are you telling me if they hear screams of a woman being raped, they cannot enter without a warrant. If they are just outside, they have to wait for a warrant?

[Wild Cobra]

I would argue that any clause whre you sign away your 4th Amendment rights is uncons utional. Of course, whether that claim is valid or not won't get tested unless it goes to the SCOTUS.

I guess joining the military, signing away personal rights is uncons utional then?

[LnGrrrR]

Bull .

they can enter private property without a warrant, if they have some types of probable cause.

Are you telling me if they hear screams of a woman being raped, they cannot enter without a warrant. If they are just outside, they have to wait for a warrant?

The whole point of cops entering in those moments are because it obviously would not make sense to wait for a warrant. But in the majority of cases, warrants are sought-after.

How many emails do they inspect that have a time-sensitive nature to them, do you think? And how would they know it's time-sensitive in nature BEFORE they read the email? The justification is sought after the liberty is violated.

[Wild Cobra]

The whole point of cops entering in those moments are because it obviously would not make sense to wait for a warrant. But in the majority of cases, warrants are sought-after.

How many emails do they inspect that have a time-sensitive nature to them, do you think? And how would they know it's time-sensitive in nature BEFORE they read the email? The justification is sought after the liberty is violated.

And my view about emails isn't so relaxed. Is it.

[LnGrrrR]

I guess joining the military, signing away personal rights is uncons utional then?

Good rebuttal, actually. I would argue that the military is unique as far as some laws go. You and I can both agree that the military disallows some activities that a normal company couldn't, agreed?

Still, a good point, and while the military doesn't necessarily eliminate your rights, it still does restrict them.

[ElNono]

I would argue that any clause whre you sign away your 4th Amendment rights is uncons utional. Of course, whether that claim is valid or not won't get tested unless it goes to the SCOTUS.

No such thing. People give up their 4th amendment protection on a daily basis by consenting to searches even if law enforcement doesn't have probable cause.

The 'user agreement' angle only enter the picture if you use a third party ISP to store your email. The ECPA requires a warrant to tap and trace (aka wiretap) wire, oral or electronic communications WHILE IN TRANSIT.
For example, we use our own email server, and thus even if we access it through the cell phone network or a wired network through any ISP it matter little wether the user agreement contains a clause waiving the 4th amendment protections for stored email. It would be unlawful for the ISP to MiM our communications without a warrant.

[ElNono]

And the standard for probable cause for arrest/search without a warrant has been established for a while. If law enforcement believes to be witness to a crime (prima facie), then it's allowed to search/arrest without a warrant. The standard normally only applies when they're a witness to the potential crime. This is an important distinction. (Obviously, there are minor exceptions, such as searches at airports. But this is the standard that applies day to day).

So, for example, if a captured drug dealer tells LE who their supplier is, LE needs to obtain a warrant to search the supplier's place. Sometimes, when LE cannot get a warrant, it's not uncommon for them to pay a visit anyways, looking to witness some type of crime (ie: observe drugs on the premises, be welcomed with guns blazing, etc) which would automatically waive the warrant requirement.

It's important to know what these standards are in order to protect your privacy.

[LnGrrrR]

Thanks ElNono. I wasn't sure about the specifics of searches regarding the 4th Amendment.

[Winehole23]

I’ve had a few posts recently on new Fourth Amendment decisions that I think are wrongly decided, and I wanted to flag an update on one case that I blogged about back in March: Rehberg v. Paulk, the case holding that there is no Fourth Amendment protection in the contents of e-mails. I wrote a long post on why I thought the decision was wrong, and I ended the post with this note...

http://volokh.com/2010/08/31/whateve...hberg-v-paulk/

[Trainwreck2100]

Old news but Cali Says Blow me DC

Court allows agents to secretly put GPS trackers on cars
August 27, 2010|By Dugald McConnell, CNN
Law enforcement officers may secretly place a GPS device on a person's car without seeking a warrant from a judge, according to a recent federal appeals court ruling in California.

Drug Enforcement Administration agents in Oregon in 2007 surrep iously attached a GPS to the silver Jeep owned by Juan Pineda-Moreno, whom they suspected of growing marijuana, according to court papers.

When Pineda-Moreno was arrested and charged, one piece of evidence was the GPS data, including the longitude and la ude of where the Jeep was driven, and how long it stayed. Prosecutors asserted the Jeep had been driven several times to remote rural locations where agents discovered marijuana being grown, court do ents show.
Advertisement

Pineda-Moreno eventually pleaded guilty to conspiracy to grow marijuana, and is serving a 51-month sentence, according to his lawyer.

But he appealed on the grounds that sneaking onto a person's driveway and secretly tracking their car violates a person's reasonable expectation of privacy.

"They went onto the property several times in the middle of the night without his knowledge and without his permission," said his lawyer, Harrison Latto.

The U.S. Ninth Circuit Court of Appeals rejected the appeal twice -- in January of this year by a three-judge panel, and then again by the full court earlier this month. The judges who affirmed Pineda-Moreno's conviction did so without comment.

Latto says the Ninth Circuit decision means law enforcement can place trackers on cars, without seeking a court's permission, in the nine western states the California-based circuit covers.

The ruling likely won't be the end of the matter. A federal appeals court in Washington, D.C., arrived at a different conclusion in similar case, saying officers who attached a GPS to the car of a suspected drug dealer should have sought a warrant.

Experts say the issue could eventually reach the U.S. Supreme Court.

One of the dissenting judges in Pineda-Moreno's case, Chief Judge Alex Kozinski, said the defendant's driveway was private and that the decision would allow police to use tactics he called "creepy" and "underhanded."

"The vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel's ruling," Kozinksi wrote in his dissent.

"I think it is Orwellian," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, which advocates for privacy rights.

"If the courts allow the police to gather up this information without a warrant," he said, "the police could place a tracking device on any individual's car -- without having to ever justify the reason they did that."

But supporters of the decision see the GPS trackers as a law enforcement tool that is no more intrusive than other means of surveillance, such as visually following a person, that do not require a court's approval.

"You left place A, at this time, you went to place B, you took this street -- that information can be gleaned in a variety of ways," said David Rivkin, a former Justice Department attorney. "It can be old surveillance, by tailing you unbeknownst to you; it could be a GPS."

He says that a person cannot automatically expect privacy just because something is on private property.

"You have to take measures -- to build a fence, to put the car in the garage" or post a no-trespassing sign, he said. "If you don't do that, you're not going to get the privacy."

[Winehole23]

http://papers.ssrn.com/sol3/papers.c...act_id=2021439

[Winehole23]

Secrecy and federal court dockets: On the nuts and bolts of authorizing government surveillance

The second panel at the Yale Law School's March 3 symposium on Location Tracking and Biometrics focused on the question of "Phones and Mobile Privacy: Government Requests to Carriers." (Go here to see the video; the second panel begins at the 3:03:40 mark.)

Kevin Bankston, an attorney at the Center for Democracy and Technology, opened by recounting his "best week" as a lawyer in December 2010, which included the 6th Circuit Court of Appeals decision in US v. Warshak related to whether there exists a "reasonable expectation of privacy" for emails stored by third parties in "the cloud." The 1986 Electronic Communications Privacy Act (ECPA), which allows the government to access emails more than 180 days old without a warrant if they're stored by a third party, was held uncons utional by the appellate court (though regrettably its holding only applies in that circuit).

In that ruling, the 6th Circuit offered up this observation which to me sums up the basis for reconsidering electronic privacy, not just for stored email but on location tracking and many other fronts: “the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.” (I would have added that, if the courts can't or won't do it, legislative bodies must.)

The Obama Administration did not appeal the 6th Circuit ruling, in Bankston's opinion because they feared that the Supreme Court might extend the precedent nationwide. The government argued it didn't need a warrant based on cases from the 70s based on third party doctrine - US v Miller (bank records) and Smith v. Maryland (pen registers) - and if SCOTUS agreed with the Sixth court's ruling it could have profound implications beyond just stored email.

Even though the 6th Circuit ruling applies only in that jurisdiction, Bankston said the result has been that several tech companies have begun asking for warrants every time the government requests stored content. He thinks we're getting close to "a de facto rule of warrants for content" nationwide, even though SCOTUS hasn't taken up the question. (That sounded optimistic to me, but I hope he's right.)

That same week, the 3rd Circuit declined to hold an en banc hearing on a decision by a three-judge panel which allowed (but did not require) magistrate judges to insist upon full-blown probable cause warrants for location tracking data. By contrast to Warshak, the 3rd court's ruling was "cabined and conditional." It provided no "new juice" at the legislative level for restricting location tracking and neither the government nor the cell carriers changed their practices as a result. Moreover, unlike the 6th Circuit case on stored email, the government hasn't been afraid to appeal rulings on location tracking when they lose (as evidenced by a case pending on the topic in the 5th Circuit, whose jurisdiction includes Texas.)

For many years, said Bankston, such orders were issued in secret. It wasn't until 2005 when Stephen Smith, a federal magistrate judge in Houston who was also on the panel, first denied one of these applications that anyone outside the government knew this was going on. (For more background, see Bankston's 2007 article, "Only the DOJ Knows: The Secret Law of Electronic Surveillance.")

http://gritsforbreakfast.blogspot.co....html?spref=fb

[Winehole23]

The President Barack Obama administration is claiming that authorities do not need court warrants to affix GPS devices to vehicles to monitor their every move.


The administration maintains that position despite the Supreme Court’s infamous decision last year that concluded that attaching the GPS devices amounted to search protected by the Cons ution.


The administration is set to make its argument Tuesday before a federal appeals court in a case testing the parameters of the high court’s 2012 decision. If the government prevails, the high court’s ruling would be virtually meaningless.


“This case is the government’s primary hope that it does not need a judge’s approval to attach a GPS device to a car,” Catherine Crump, an attorney with the American Civil Liberties Union, said in a telephone interview.


Crump will square off on the issue Tuesday with the Obama administration before the 3rd U.S. Circuit Court of Appeals in Philadelphia.


The question of whether probable-cause warrants issued by a judge are needed is an open one because the high court stopped short of answering it. The court ruled in January, 2012, that attaching the device amounted to a cons utionally protected search because it was a trespass on a private vehicle.

http://www.wired.com/threatlevel/201...=Google+Reader

[Winehole23]

The government's latest brief (pdf) on subject to the Third Court of Appeals says they should be able to use such trackers to develop probable cause, a notion that turns the Fourth Amendment on its head.

If the court doesn't buy that argument, the feds maintain judges should apply the automobile exception to the Fourth Amendment that allows a lower standard to search a vehicle at a traffic stop than a person's home. The automobile exception, though, was created to let police look for contraband. It's quite another thing entirely to say it justifies continuous tracking over time.

Incidentally, Mr. Jones, of US v. Jones fame, saw his case result in a deadlocked jury earlier this month. The government, after being told it couldn't use information from the GPS tracking device in his car, used tracking data from his cell-phone instead to generate the same location information. So it wasn't the lack of location data that soured the case but the state's failure to provide other, sufficient proof of his guilt. Still, the episode shows the relationship between cell-phone tracking and US v. Jones - if that loophole isn't closed, Jones becomes essentially useless for protecting personal privacy in an era where nearly every adult has a cell phone.

http://gritsforbreakfast.blogspot.co....html?spref=fb

[Winehole23]

These federal cases demonstrate why Rep. Bryan Hughes HB 1608 has received so much supportin the Texas House, along with bipartisan support for a warrant requirement for cell-phone location data in the Senate. Opponents of the measure have been arguing of late that your personal location information does not belong to you, that you've given up any "reasonable expectation of privacy" regarding your location simply by carrying a cell phone. This is the "third-party" exception - an ill-advised, SCOTUS-written carve-out of the Fourth Amendment that Justice Sonia Sotomayor argued should be reconsidered in her concurrence to Jones in an era when so much data about us is now held by private companies. Sotomayor argued that to allow continuous, warrantless tracking by the government would "alter the relationship between citizen and government in a way that is inimical to democratic society." She's right.

same

[Winehole23]

knock on effect:

Prior to hearing oral argument in the Proposition 8 case this morning, the Supreme Court handed down its decision in Florida v. Jardines, the other dog sniff case (Florida v. Harris was decided last month). In an opinion written by Justice Scalia, the Court affirmed the Florida Supreme Court. The Court held a dog sniff at the front door of a house where the police suspected drugs were being grown cons utes a search for purposes of the Fourth Amendment. Justice Kagan filed a concurrence joined by Justices Ginsburg and Sotomayor. Justice Alito filed a dissent joined by the Chief Justice, and Justices Kennedy and Breyer.


Justice Scalia’s opinion for the Court resolved the Fourth Amendment question solely on property rights grounds, holding that bringing a dog to conduct a forensic search on someone’s porch cons utes a trespass at common law and, under the reasoning of last term’s GPS case, United States v. Jones, cons uted a search subject to the limitations of the Fourth Amendment. While the general public, including the police, generally have license to approach a house’s front door (for example, to leave a flier or ask the occupant to answer a question), that license does not include an invitation to bring a dog onto the porch to search for drugs. If a member of the public did that, Justice Scalia observed, it would “inspire most of us to – well, call the police.” For that reason, the majority decision found it unnecessary to decide whether the dog sniff also violated the suspect’s reasonable expectation of privacy.

http://www.scotusblog.com/2013/03/op...da-v-jardines/

[Winehole23]

With Independence Day approaching, Grits still laments this session's near-miss victory for the Fourth Amendment regarding warrants for cell-phone location data, legislation carried by state Rep. Bryan Hughes and state Senators Juan Hinojosa and Craig Estes that nearly passed as an amendment. This NY Times headline yesterday would have looked a lot better with Texas in the le than Montana, that's for sure.

The public faces increasing commercial pressure to utilize cell-phone location data that right now is not covered by Fourth Amendment protections under the Supreme Court's third party exception. But location data is only the spearpoint of the issue. To me, eventually the entire third-party doctrine spawned from the court's Smith and Miller cases in the '70s (see here for an example of an Obama apologist using those cases to justify the NSA gobbling up everyone's cell-phone metadata ) must be reconsidered in light of the advent of cloud computing in the digital age, as Justice Sonia Sotomayor rightly argued in US v. Jones. These were already going to be some of the biggest Fourth Amendment issues of the decade before anyone ever heard of Edward Snowden, though he certainly heightened their profile.

Approaching a holiday celebrating our freedoms, I am gratified the Lege offered its own contribution to the national debate over digital Fourth Amendment protections, making Texas the first state to require law enforcement to get warrants for cloud-based email and other content. Grits expects other states to follow our lead, just as other states are already following Montana's on cell phones. Maybe in 2015 the Texas Electronic Privacy Coalition can convince the Lege to pick up the cell-phone location data bill like a bowler picks up a spare. But it sure would have been nice to get both of them this time. Rep. Hughes and Co. were awfully close to have it peter out at the end.

http://gritsforbreakfast.blogspot.co....html?spref=fb