Category Archives: Fourth Amendment

GPS Update – A little future oldthink about this week’s arguments

First, I would like to apologize for my lack of dedication. I am not one of the people who camped out on Monday night/Tuesday morning to see the SCOTUS arguments in U.S. v. Jones, so I do not have a firsthand account of what went down. I am currently reading through the transcripts, but I realized that this late in the game, I probably have very little to add to the interweb conversation.

Thus, to supplement my 2 cents with some real cash, I present in no particular order a variety of links to other writers’ extensive commentary and predictions based on what happened at the Court on Tuesday.

Grits for Breakfast (contains even more links)


Volokh Conspiracy

More Volokh Conspiracy


Above the Law


My personal favorite comment was actually the FB status of a former law school colleague William Jones:

Regarding the GPS case, Scalia sarcastically retorted “well if it’s scary, then it must be unconstitutional.” But maybe his statement was more accurate than he chooses to admit. The fourth amendment prohibits searches and seizures that are “unreasonable”. So a sufficiently scary warrantless search- guess what- might be unreasonable and thus violate the text of the fourth amendment.

Well said, Mr. Jones.

Given the references to Orwell and 1984 by the Court during argument, I am hopeful that at least five of them see that book as a sufficiently scary and cautionary tale. The Chief acknowledged that even they, the mighty nine, could be subjected to constant police tracking if the government gets its way. It’s not every day that the Court explicitly considers the possibility that even big shot Supreme Court justices could be victims of the terrible shit that police do to normal people all the time, so I am cautiously optimistic about where they will come down on this issue (even though the Nine can clearly all afford one of these if they go the other way.)

Despite my hopefulness, we all might want to start learning our next language and practicing our doublethink.

You know, just in case.


Phone Search Update: California governor hates civil rights

Last week, I wrote about a bill that, if passed, would have put California at the forefront of electronic privacy protection. The bill coasted through California’s legislative bodies with little resistance and only the Governor’s signature stood in its way. I’m sure you have already guessed, based on the title of this post, what happened to the bill.

Wired reports that Jerry Brown vetoed the bill, explicitly deferring to the Cali Supremes’ recent decision allowing police to search a cell phone incident to arrest. Brown believes the courts are better situated to answer questions that require application of the Fourth Amendment to new and changing technology. Orin Kerr, at Volokh Conspiracy, was thus prompted to point out why, as he has previously explained, Mr. Brown is wrong.

Kerr notes the problem with his legislature-oriented argument in that Brown was given the power to override a limitation to (his own) executive power. Pretty easy to understand his incentive problem there. (Not to mention the thousands of dollars that flow into his war chests from law enforcement lobbies.) So the glimmer of hope that this bill represented is no more, and California remains a place where, just like in most states (including the ones where I and probably you live and hang out) police get to do whatever they want because to limit them in any way tends to be bad politics and judges are basically an extension of the law enforcement machine. Even our “progressive” president hates civil rights.

On the bright side, the impending total police state will make life so unbearable here that we will eventually welcome our alien/robot/mutant overlords/destroyers or even the zombie apocalypse.









GPS Follow Up: Ohio court can’t wait

With the U.S. Supremes poised to hear oral argument in the GPS tracking case, U.S. v. Jones, in November, most of us can do nothing but sit and wait for the day when the police finally know every movement every person makes. Boy, will I feel safer then. (My previous comments on this issue can be seen here and here.)

But one Ohio court just could no longer bear the anticipation and went ahead and decided to protect the rights of some Ohioans, at least until a higher court smacks them down. (In addition to the pending SCOTUS case that would NOT prevent Ohio from giving greater protections under its state constitution, similar issues are also pending before the Ohio Supremes).

According to the Court of Appeals for the Fifth Appellate District of Ohio, police there, for now, will at least need a good lie reason and a rubberstamp magistrate to allow monitoring of every move a person makes.

Noting “an alarming trend whereby the privacy and dignity of our citizens is being whittled away by sometimes imperceptible steps,” the Ohio court held that BOTH the installation of the device and the monitoring of its movements implicated the Fourth Amendment and thus required a warrant.

It’s at least slightly comforting to know that there still exist in the judiciary decision-makers willing to protect the people from the increasingly terrifying military force that goes by the name “police.” I hope, without being too optimistic, that there turn out to be at least five such decision-makers on the Roberts Court.




Hat tip to the very informative (and often scary for those of us who don’t want police all up in our business)

No officer, you may not touch my baby that way

My Baby







When trying to get one of these blog things off the ground, it’s probably not the best idea to limit your audience too much. Regardless, I have recently posted pieces directed at some pretty exclusive groups, namely, those who have stuff and those who use technology. As evidence of the poorness of that blog marketing strategy, neither of those posts has exactly gone viral.

Anyhow, I refuse to be slave to the masses, and I will write whatever and to whomever I want. So today, I even further restrict my audience to those elite few out there with some sort of smart phone. So as to accommodate at least a marginally larger audience, I will define smart phone as anything that you carry around that makes phone calls and connects to the interwebs.

Now, normally when I write about phones and criminal justice, I’m talking about how your phone can be used against the police. But today, out of a sense of fairness and balance, I address how the police can use your phone against you.

First, a little background:

The Fourth Amendment is supposed to protect us from unreasonable searches and seizures. The Supreme Court has distorted that simple concept to allow police to do all sorts of bad stuff for all sorts of reasons that have very little to do with reasonableness. Today’s example is the “search incident to arrest.”

Basically, the Court has held that if you are lawfully arrested, police may search you. The original reasons for this type of search were (1) officer safety (the police trump card for most 4th Amendment violations) and (2) potential destruction of evidence (also pretty effective police argument in many 4th Amendment violation situations). The Court first decided that officers could search arrestees without a warrant to make sure they didn’t have weapons with which to harm the officers and to make sure they didn’t destroy evidence post-arrest. Not completely insane, right? Just wait.

The Court has since expanded the search incident to arrest to allow officers to search any container in any area that was recently within your control prior to your arrest, just to fish for evidence. You see, the Court likes to make bright-line rules that are easy for police to follow so that police never even have to consider silly abstractions like the reasonableness requirement contained in the Fourth Amendment.

So what does this have to do with your phone (as if you haven’t figured it out already)?

Well, the natural implication of the Court’s logic and holdings is that if you are arrested, police may search your phone (a container) for evidence, without a warrant and without any suspicion that they will actually find anything in there.

Few courts have really tackled this exact issue so far, but most have rubber stamped police intrusion into texts, phone books, and other phone data following a “lawful” arrest. Here in Virginia, there don’t seem to be any state cases directly on point, and the 4th Circuit has allowed searches incident to arrest of electronic devices including phones.

Some of you may be thinking that I wasted your time making you read this far by not limiting the audience even more at the outset to only include criminals.

“Well, I won’t ever get arrested so why should I care?”, you might say.

I would make two points:

1) Criminal laws are so extensive that no one knows everything that is illegal. The Wall Street Journal today lamented the federal government’s overcriminalization addiction and its exclusion of mens rea (criminal intent) from endless numbers of criminal laws, so that more and more people are committing crimes without even knowing it, much less doing it on purpose. As the WSJ article points out, the maxim “ignorance of the law is no excuse” no longer makes sense when no human can possibly know all the laws because the government has criminalized almost everything.

2) Most states allow for arrests for minor offenses (even though arrests may not be all that common). And the Supreme Court has already said it’s okay to arrest someone for something as minor as a seatbelt violation (See Atwater v. Lago Vista). And all states have criminal and traffic codes so extensive that police can follow anyone for a few minutes and pull them over and cite them. AND that means just about everyone who drives could be arrested if some pseudo-military government thug wants to fuck with them.

So basically any of you could be arrested at any time at the whim of a government thug. At that point, according to the logic that follows from the Court’s existing search incident to arrest doctrine, said thug can go through anything and everything on your phone.

One state (unfortunately not one of the ones where most of you, my current readers, live), has taken a huge step toward protecting its people from these unreasonable intrusions into the vast amounts of private information that can be stored in a phone. The California legislature just unanimously passed a bill that, if signed by the governor, will make it illegal for police to search a portable electronic device without a warrant.

It is unfortunate that courts have become so complicit in law enforcement destruction of civil rights that the 4th Amendment no longer protects us from unreasonable searches and that legislatures have to make new laws to fill in the gaping holes that the courts and cops have created in the Bill of Rights. But it is encouraging that at least one elected body has recognized the problem and done something to protect the people it represents.

Every state government (especially the one in the state in which I live) and the feds should do the same.

If the courts will not protect us, we have to take action to protect ourselves. Chances are there is someone who represents you who you can contact with that little machine in your pocket (the phone, I mean) who needs to know that you would like your rights protected (Here is a good place to find their info).

Let ‘em know. And spread the word.


Be the power.

Protect your rights (even if you are completely innocent)

I was creating an informational pamphlet and I thought that I would share these nuggets of wisdom:

1.  SAY NO.

Police will always try to get you to consent to things like searches and interrogations because you voluntarily give up your rights.  Protect your rights.  Just SAY NO.  Other than that . . .

 2.  SHUT UP.

Talking to the police is rarely a good idea.  Nothing you say is going to help.  Just shut up.  Except to . . .


If you say anything other than “NO” to the police, it should probably be “I WANT A LAWYER” and that’s it.

Disclaimer:  This is not legal advice.  Those are your rights.  Do with them as you will.

GPS Follow-Up: SCOTUS-bound

The U.S. Supreme Court has granted cert in U.S. v. Jones, a case that I recently opined was decided correctly even if the logic that supported the decision was questionable.  Now the High Nine will decide whether the government, without consent or a warrant, is allowed to (1) stick tracking devices to our cars, (2) monitor our every move over a “prolonged” period of time, and (3) randomly check our rectal temperatures.

(1) and (3) were not addressed by the D.C. Circuit, but the Supremes added them in for their consideration.  (I’m pretty curious as to how Obama’s DOJ will justify that last one.)

More to come . . .



CORRECTION:   Apparently the third issue I mentioned is not yet being considered by the court.

In Support of Affirming Bad Math

Last August, the D.C. Circuit Court of Appeals ruled that prolonged GPS tracking of a person’s automobile is a search for Fourth Amendment purposes and thus subject to the warrant requirement.

The Obama Administration’s (increasingly intrusive) DOJ, in its petition for certiorari, argues that there is no reasonable expectation of privacy in movements on public roadways and urges the Supreme Court to overturn the D.C. Circuit.

Those who know me could easily guess my kneejerk reaction to this level of discretionary police intrusion:  HELL NO.  It is scarily Big Brother-ish, and police don’t know the meaning of restraint.  Due to the ease and minimal expense of engaging in this type of surveillance, it would allow the continuous tracking of any person for an unlimited amount of time, based only on some police officer’s “reasonable” suspicion. So it won’t be long before some officer of some law enforcement agency knows the whereabouts of all of us at any given time.  (I don’t want anyone knowing how often I eat Taco Bell.)

However, in pondering Fourth Amendment precedent and attempting to ignore the police-phobic voice in my head, I wondered how a court could get around the fact that a person’s movements in their vehicle are openly exposed to the public.

I am new to this blogging thing, but I am pretty sure, based on a wide sampling of other bloggers’ work, that I am allowed to comment (and if need be throw fits) about stuff that I haven’t actually read.  Regardless, I read the D.C. Circuit panel’s opinion in U.S. v. Maynard, 615 F.3d 544 (to my chagrin, I’ve been told I should provide citations – pincites, however, are asking a bit much), and learned that they just had to fudge the numbers a little.



Essentially the D.C. panel ruled, with regard to GPS tracking by police, that (1) the whole is greater than the sum of the parts and that (2) some undefined multiple of nothing equals something.

Much of the analysis in this case revolves around the SCOTUS decision in U.S. v. Knotts, 460 U.S. 276.  In Knotts, the Court considered the use of a “beeper” (the 1980s’ version of a GPS tracker) to track the movements of a barrel from the place where the defendant purchased it to defendant’s secluded cabin where he cooked meth.  The Court held that Knotts’s Fourth Amendment rights were not violated, because he had no reasonable expectation of privacy in his “movements from one place to another” along “public thoroughfares.”  Anyone who wanted to look could see where he came from and where he went.

The Court recognized that visual surveillance could have revealed to police the information gleaned from the beeper and held that “nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.”  The Court explicitly declined to answer whether prolonged 24-hour surveillance like in Maynard would require a different constitutional analysis, although the broad language of the opinion seems to suggest that it would not.



Presented with SCOTUS’s unanswered question of prolonged surveillance, the Maynard court did apply a different constitutional analysis, based in part on some inventive mathematics.

I.  The whole is greater than the sum of the parts:

The court held that the totality of the defendant’s movements in Maynard were not actually exposed to the public because the likelihood that someone would monitor all of the movements over the 28 day monitoring period was “essentially nil.”

Then, although the issue was not raised by the government, the court went on consider whether the movements were “constructively exposed” because clearly each individual trip would fall under the Knotts rule.  The court explained that that the whole picture of defendant’s movements over a month is greater than the sum of the parts.

“Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.  These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one‘s not visiting any of these places over the course of a month.  The sequence of a person‘s movements can reveal still more; a single trip to a gynecologist‘s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story.”

The math is wrong, but the resulting analysis rings true.  Much more information is gained from continuous observation of a person’s public movements than from the observation of a single trip.

II.  Some multiple of nothing equals something.

The court is less explicit in its application of this faulty formula.  I, on the other hand, will show my work.

SCOTUS found no expectation of privacy in the single trip at issue in Knotts.

Single trip (T) = 0

The D.C. Circuit found a reasonable expectation of privacy in however many (x) trips occurred in the 28-day period at issue in Maynard.

x (T) > 0

Simple math tells us, and the DOJ points out in its cert petition, that there is something wrong with this equation.  The court had a gut feeling (like mine) that a line should be drawn somewhere, so it attempted to draw a line.  The main problem with the line it drew, was that it did not define x.

The D.C. court repeatedly uses the word “prolonged” for what I have represented with the variable x.  “Prolonged” does not really lend itself to principled interpretation or mathematical application.  Nowhere does the court say how big x must be to give a person an expectation of privacy, and so courts and police are left for now to fill in x as they see fit.  The failure to define the “prolonged” variable is the most obvious problem with the rule laid down in this opinion.  Freedom becomes discretionary when police are left with ambiguous guidelines.


The courts look to society to ultimately determine what expectations of privacy are reasonable.

The Maynard court cites several recently-enacted state laws against prolonged warrantless GPS surveillance as evidence of our societal expectation that the totality of our movements deserves some protection.  However, there are still forty-something states that do not have such laws, and most of us are left with only the Fourth Amendment and our state constitutions to protect us from this type of police overreach.

I think most of us at least pause at the notion of police being able to track our every movement without any sort of court approval or oversight.  Regardless of the constitutional implications, to many of us it seems sci-fi future-style creepy if not completely effing terrifying (I’m in the latter camp.)  It is completely reasonable to expect that in the land of the free, we can go wherever we want whenever we want without being constantly monitored.  The D.C. Circuit’s calculations may be wrong, but their conclusion feels correct, and our feelings on the subject are what define or expectations of privacy.  (None of this paragraph applies to anyone who thinks it’s a good idea to constantly post their whereabouts on some social networking site.  You deserve to be followed.)

Today in The Daily, Judge Kozinski of the Ninth Circuit mourned the death of the Fourth Amendment, and he is correct that we have voluntarily exchanged a great measure of our privacy for the conveniences of modern technology.  The Maynard decision strays from simple math and prior privacy precedent to try to breathe some life into the Fourth Amendment by protecting us from prolonged 24-hour electronic police tracking.  I personally enjoy my freedom.  I am not ready to say my goodbyes to the Fourth Amendment, so I don’t mind the court fudging the numbers a little to protect it.  I can only hope that the Supreme Court uses a similar equation.