What is the difference between tailing a criminal's car and putting a GPS tracker on it?

The dividing lines here seem pretty fuzzy. It seems OK to track someone's cell phone calls (can they track the cell phone's GPS?).

Ruling that federal agents erred in attaching a satellite tracking device to a vehicle without a search warrant, a federal appeals court has reversed the life sentence of man accused of running a major Washington drug ring.

The U.S. Court of Appeals for the District of Columbia Circuit on Friday found that the government's use of GPS technology to track defendant Antoine Jones' Jeep violated the Fourth Amendment.

Civil liberties groups that aided in the appeal of Mr. Jones, whose case involved the largest cocaine seizure in city history, called the ruling an important legal victory for privacy rights.

The three-judge ruling called the GPS information key to the federal prosecution of Mr. Jones, who owned Club Levels in Northeast Washington across the street from the Metropolitan Police Department's Fifth District headquarters.

"The GPS data were essential to the government's case," the court ruled. "By combining them with Mr. Jones's cell-phone records, the government was able to paint a picture of Mr. Jones's movements that made credible the allegation that he was involved in drug trafficking." . . .



Blogger TooMuchTime said...

This stupidy is nothing new. In CA, a court ruled that police could not fly over a persons property to find marijuana plants. However, the current ruling in effect that police could drive by the property and just look from the road was not overturned.

So the police can follow the car but they can't track it. Dumb.

8/09/2010 9:44 AM  
Blogger Hank said...

Actually, I don't think he's talking about entitlements in the cited article. He's talking properly about net neutrality, which means blogs like this one cannot be slowed down and sites like CNN cannot be sped up if CNN pays off Comcast. He's saying that theoretically ISPs could receive payments from large corporations like CNN or Disney or Time Warner to make their sites load 300x faster than John Lott's blog. He's saying this is a threat the free speech and to the internet as a whole, which I happen to agree with.

Wouldn't it suck if the only opinions that loaded fast were at nytimes.com? Definitely. Of course, News Corp. would probably get in with the ISPs as well, so Fox News op-eds would load. But my blog would be slow as mud. Just my 2 cents.

Of course, if there was actually competition in the ISP market, this wouldn't be a problem, but generally on company has the rights to bring cable to your home, so you don't have much of a choice.

8/09/2010 10:07 AM  
Blogger Raven Lunatic said...

Well, one of the major differences between tailing and tagging is that a tail is reasonably noticeable, while a gps transponder is not.

Second, in order to plant such a device, they have to have had some form of control over the vehicle, which is what the warrant would be for.

As for flying over vs driving by, it's the difference between what is very nearly trespassing and simple surveillance. What would be the effective difference between a flyover and having a boom truck just off your property holding someone over your property to look around? In both cases, they are specifically moving within the bounds of your property with the explicit purpose of violating the privacy guaranteed by the 4th amendment and those same bounds. Any casual observer (or paparazzo) could examine your property from the street. Hiring a plane to fly over is a step too far.

8/09/2010 1:41 PM  
Blogger John Lott said...

Dear Raven:

You don't need a warrant to "search" the outside of the car. Searches only need a warrant when they involve something that the individual has reasonable expectations of. If someone's car can be followed by either another car or by a helicopter or airplane, why would they reasonably have this expectation?

8/09/2010 2:24 PM  
Blogger Raven Lunatic said...

Do you need a warrant or consent to bug someone's person? In some states you're required to get consent of All parties being recorded.

Again, another difference is that with a tail, it is the tail giving testimony. With a Tracking device, on the other hand, in many ways, the vehicle itself giving the testimony. And yeah, I think it's perfectly reasonable to expect that your car (which isn't equipped with GPS Navigation, On*Star, etc) would not be feeding data to the police.

8/09/2010 3:05 PM  
Blogger John Lott said...

Dear Raven:

There are two issues here. Is there a consistent legal logic here? Do I want something as a matter of policy?

Is there a consistent legal logic here? No, not even close, as noted above.

Do I want something like this as a matter of policy? Probably not. But the question that I started this heading off was a logical question, not a policy one. The judges here though seem to care more about policy than legal logic, which would be fine if they were legislators.

8/09/2010 3:58 PM  
Blogger Raven Lunatic said...

Dr. Lott, I would argue that there Is consistent legal logic presented. As stated in the article "The decision simply tells law enforcement agents that they need a judge's decision before trespassing on a person's car and attaching a device that tracks and records him or her relentlessly over time and space."

There is no expectation that your movements would be private when there is a car, plane, helicopter, pedestrian, bicyclist, or other entity following you. There Is a reasonable expectation of privacy when no-one is around, and the only way that someone would remotely know where you are is if they had Trespassed on your vehicle.

As to your question about the cell phone, first the article does not say anything about Tracking cell phone use (an active, ongoing process) simply comparison to the phone records (passive, data collected by the cell phone company as part of the course of their lawful business with the defendant). Second, given that the court is not reported to have complained about the government's possession of those records, it is reasonable to presume that said records were subpoenaed from said phone company.

So you have on one hand, without the authorization of a judge, constant, active data recording of an individual who has no reasonable way of knowing he is being tracked, even if he does due diligence in being aware of his surroundings, and on the other, you have the requisition of existing records, which was almost guaranteedly authorized by a judge.

As to GPS data via cellphones, yes, possibly, but that still allows a suspect to turn off their phone to prevent their company from collecting that data. Even if they did not, it would require the government subpoenaing data that a private company was already collecting, or subpoena the collection of such data. Again, the difference is that there would be interaction with a judge before acquisition of the data, not afterward.

8/09/2010 4:45 PM  
Blogger TooMuchTime said...

What would be the effective difference between a flyover and having a boom truck just off your property holding someone over your property to look around?


Suppose the plane is flying but not over your property? Maybe over your neighbors property or over public property? The police see the marijuana plants without violating your property.

What about satellites? You can filter satellite photos to determine what crops are being grown. The US Dept of Agriculture had better numbers on Soviet grain production than did the Politburo. If a satellite takes a photo of someone's property and they filter it to determine if marijuana is being grown, what's wrong with that? You can't claim a person's property extends to 300 miles in space. Sorry. Your "trespassing vs. surveillance" argument doesn't hold water.

And what if the person being tailed has their cellphone on and they are being tracked that way? Do the police need a warrant for that, too? Please! The 4th 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 searched and the persons or things to be seized.

The police were not searching or seizing. That's a pretty big stretch. Or course, liberal judges think the constitution is made of rubber.

8/14/2010 5:52 PM  

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