The Supreme Court gets one right. But some have the wrong reason.

[Sallow]

Whoo boy..

WASHINGTON -- The installation of a GPS tracking device onto a suspect's car constitutes a search -- and therefore could require a warrant -- the Supreme Court unanimously held on Monday morning. The justices, however, employed radically different rationales to come to their answer, leaving unsettled the question of how much protection one may expect from the Fourth Amendment in the digital age.

The case, United States v. Jones, arose from the Washington, D.C., police department's use of evidence gathered from Antoine Jones' car that tied him to a stash house in Maryland. A trial court convicted Jones and sentenced him to life in prison, but the U.S. Court of Appeals for the D.C. Circuit reversed, finding that the police's gathering of evidence after its warrant for the GPS tracking had expired violated the Fourth Amendment.

When Jones arrived at the Supreme Court, the justices faced the difficult question of how far the government can go in monitoring a person's movements in an age when modern technology may have eroded a person's reasonable expectation of privacy, which is the linchpin of modern Fourth Amendment case law.

But Justice Antonin Scalia, commanding five justices' votes, sidestepped the question altogether by resorting to the more narrow view of the Fourth Amendment that prevailed prior to 1967, when Katz v. United States introduced the "reasonable expectation of privacy" test.

"The text of the Fourth Amendment," wrote Scalia, "reflects its close connection to property, since otherwise it would have referred simply to 'the right of the people to be secure against unreasonable searches and seizures'; the phrase 'in their persons, houses, papers, and effects' would have been superfluous."

Because a vehicle is an "effect," Scalia wrote, the government committed a “physical intrusion [that] would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

Scalia was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Sonia Sotomayor, but his reasoning met stiff opposition from Justice Samuel Alito, who wrote a separate concurrence on behalf of Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.

Acting out a division exposed during oral argument in November, Alito called Scalia's decision to apply "18th-century tort law" to 21st-century technology "unwise."

"It is almost impossible to think of late-18th-century situations that are analogous to what took place in this case," wrote Alito. In a parenthetical that closely resembled his sarcastic attacks from the bench on Scalia's originalist jurisprudence, Alito wrote, "Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?" To do so, Alito answered in a footnote, "would have required either a gigantic coach, a very tiny constable, or both -- not to mention a constable with incredible fortitude and patience."
Warrantless GPS Tracking Unconstitutional, Supreme Court Rules

And what this really comes down to is that at some point an amendment needs to be added, spelling out for the ages that American citizens, do indeed have the explicit right to privacy.

 

[George Costanza]

Whoo boy..

WASHINGTON -- The installation of a GPS tracking device onto a suspect's car constitutes a search -- and therefore could require a warrant -- the Supreme Court unanimously held on Monday morning. The justices, however, employed radically different rationales to come to their answer, leaving unsettled the question of how much protection one may expect from the Fourth Amendment in the digital age.

The case, United States v. Jones, arose from the Washington, D.C., police department's use of evidence gathered from Antoine Jones' car that tied him to a stash house in Maryland. A trial court convicted Jones and sentenced him to life in prison, but the U.S. Court of Appeals for the D.C. Circuit reversed, finding that the police's gathering of evidence after its warrant for the GPS tracking had expired violated the Fourth Amendment.

When Jones arrived at the Supreme Court, the justices faced the difficult question of how far the government can go in monitoring a person's movements in an age when modern technology may have eroded a person's reasonable expectation of privacy, which is the linchpin of modern Fourth Amendment case law.

But Justice Antonin Scalia, commanding five justices' votes, sidestepped the question altogether by resorting to the more narrow view of the Fourth Amendment that prevailed prior to 1967, when Katz v. United States introduced the "reasonable expectation of privacy" test.

"The text of the Fourth Amendment," wrote Scalia, "reflects its close connection to property, since otherwise it would have referred simply to 'the right of the people to be secure against unreasonable searches and seizures'; the phrase 'in their persons, houses, papers, and effects' would have been superfluous."

Because a vehicle is an "effect," Scalia wrote, the government committed a “physical intrusion [that] would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

Scalia was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Sonia Sotomayor, but his reasoning met stiff opposition from Justice Samuel Alito, who wrote a separate concurrence on behalf of Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.

Acting out a division exposed during oral argument in November, Alito called Scalia's decision to apply "18th-century tort law" to 21st-century technology "unwise."

"It is almost impossible to think of late-18th-century situations that are analogous to what took place in this case," wrote Alito. In a parenthetical that closely resembled his sarcastic attacks from the bench on Scalia's originalist jurisprudence, Alito wrote, "Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?" To do so, Alito answered in a footnote, "would have required either a gigantic coach, a very tiny constable, or both -- not to mention a constable with incredible fortitude and patience."
Warrantless GPS Tracking Unconstitutional, Supreme Court Rules

And what this really comes down to is that at some point an amendment needs to be added, spelling out for the ages that American citizens, do indeed have the explicit right to privacy.

This case presents a fascinating issue. Forgetting for a moment Alito's "rationale" for this decision, let's consider the contemporary test for 4th Amendment application - the "reasonable expectation of privacy" test. Basically, this test says, that if a person has a reasonable expectation of privacy in the area searched, then, absent one of the exceptions to the requirement for a warrant (exigency or consent), a warrant must be obtained prior to a search.

What this means is, that if I am packing up some baggies of greass in the bedroom of my home, I have a reasonable expectation of privacy. If I am doing the same thing on a picnic table in a public park somewhere, I don't.

OK - all well and good. But what impact does the electronic, technical age have on this? Nowadays, there are hundreds of ways in which your privacy can be violated without your ever being aware of it. As we progress more and more into the high tech age, are we going to be charged with more and more knowledge as to how our privacy can be invaded? And, if so, what effect will that have on the "reasonable expectation of privacy" test?

When I post something on the Internet, do I have a reasonable expectation of privacy? At first glance, it would seem obvious that I do not. But what about something that is SUPPOSED TO BE private - a PM on an Internet message board, for example? What about something that I simply put onto my computer? Surely I have a reasonable expectation of privace there, right? Well, perhaps right; perhaps not. When you go somewhere, you figure that's your own business, right? If you want to go to a seedy motel and bang your girl friend without your wife finding out about it, you used to be able to do that, secure in the knowledge that if you first made sure the coast was clear (no wife or private eye tailing you), you could get away with it. Today, if you want to do that, go ahead - but you might want to leave your cell phone at home.

And so it goes. I'm not too sure that the amendment you discuss here would be that easy to write up, Sallow. At least, not in this tech age in which we now find ourselves.

 

[Leweman]

The supreme court is only right because they say they are. Nothing else backs them up.

 

[George Costanza]

The supreme court is only right because they say they are. Nothing else backs them up.

You might disagree with The Supremes - God knows I do quite often - but I wouldn't say that "nothing else backs them up." United States Supreme Court justices are not stupid, regardless of their politics.

 

[Leweman]

The supreme court is only right because they say they are. Nothing else backs them up.

You might disagree with The Supremes - God knows I do quite often - but I wouldn't say that "nothing else backs them up." United States Supreme Court justices are not stupid, regardless of their politics.

I don't claim that they are stupid by any stretch of the imagination. Do they have an agenda? Absolutely. Doesn't change my original statement. The only unbiased way to interpret the law is to interpret it as it is written. The constitution allows for constitutional amendments. That is the only way changes should be addressed.

 

[George Costanza]

The supreme court is only right because they say they are. Nothing else backs them up.

You might disagree with The Supremes - God knows I do quite often - but I wouldn't say that "nothing else backs them up." United States Supreme Court justices are not stupid, regardless of their politics.

I don't claim that they are stupid by any stretch of the imagination. Do they have an agenda? Absolutely. Doesn't change my original statement. The only unbiased way to interpret the law is to interpret it as it is written. The constitution allows for constitutional amendments. That is the only way changes should be addressed.

I agree with you that The Supremes are not stupid. I also STRONGLY agree with you that they have an agenda. The USSC is highly political - something it did not used to be, at least not to the degree of today's Court.

You say: "The only unbiased way to interpret the law is to interpret it as it is written." The problem with that is that one man's interpretaion is not the same as another man's interpretation. Much of the law is open to interpretation. That's why we have courts and, if they cannot satisfy the litigants, then we have appelate courts and, ultimately, the United States Supreme Court, whose job it is to interpret the law. As it is written? Well, yes - but what happens when the law is written in an ambiguous manner, or the subject matter of a particular law requires interpretation, even though the law itself is perfectly clear?

Not all that simple, sad to say and, in these contentious times,with partisan factions constantly at each other's throats, it really doesn't matter which way any court goes - it is going to cause an uproar on the losing side.