Tag Archive for 'car'

Police Need a Warrant for GPS Tracking

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The U.S. Supreme Court’s 2012 term will likely go down in history as one of the most important and eventful Supreme Court terms in decades. It is hearing cases having to do with healthcare, immigration, and many other important topics.

And today, the Court delivered a very interesting and important decision about the 4th Amendment right to be free from unreasonable searches and seizures: it has held that, for police to place a GPS tracker (or, presumably, any other device capable of tracking a car’s location), they must obtain a search warrant. In a rare unanimous ruling, the Court held that tracking a car with a GPS device is a “search” for the purposes of the 4th Amendment. The opinion can be found here (.PDF).

The surreptitious use of tracking devices has been a very important tool for law enforcement for decades. It allows the police to see where a suspect’s vehicle is driven, and when. Obviously, this information can prove extremely useful in some criminal investigations.

The 4th Amendment to the constitution enshrines the right of individuals to be secure from “unreasonable search and seizure,” and it says that search warrants cannot be issued without probable cause. Note, however, that it does not say when a warrant is required to conduct a search, or even if a warrant is required. However, over the years, the courts have carved out a rule that seems to work pretty well: a search conducted without a warrant is presumed to be unreasonable, and therefore unconstitutional, with a few very specific exceptions (consent from the owner or resident of the property to be searched, for example).

So courts often have to determine whether or not a particular act constitutes a “search” for the purposes of the 4th Amendment. For example, courts have ruled that using infrared cameras to peer inside a person’s house constitutes a “search,” and therefore requires a warrant. On the other hand, they have held that a police officer walking by a house, and happening to see illegal activity through a window or open door, does not constitute a search, and that information obtained via such means can be used in court whether or not there was a search warrant.

So, does tracking a car via GPS constitute a search? The Court said yes. Writing for the Court, Justice Scalia boiled down his position to this: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.  We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted. “

The court seems to be focusing on the fact that, in order to obtain this location information, the government had to make a significant intrusion into the private property rights of the defendant. It spent less time dwelling on the question of whether or not the defendant had a reasonable expectation of privacy with respect to his car’s location on a public road.

The Supreme Court has noted that their 4th Amendment analysis doesn’t rest entirely on the law of property. For example, an overnight houseguest at your home has the exact same 4th Amendment rights with respect to the belongings he has in your home as you would. This is the case even though he has no property interest in the home being searched. Instead, it’s the defendant’s privacy rights that the court is looking at.

However, that does not mean that property rights can’t enter the equation, as illustrated in this case.

So, what does this mean? Well, it shows that, when it comes to privacy rights with respect to the 4th Amendment, there is a lot of common ground on a Supreme Court that seems defined by 5-4 decisions falling along predictable ideological lines. Although the Justices differed on their precise reasoning, this very pro-privacy decision was unanimous.

While I’ve been critical of some of the trends the Supreme Court has been taking in recent years, the Roberts court has been pretty consistent in upholding the 4th Amendment. And this is a trend that we should all be happy about.

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The Future Of Speeding Tickets Is Here And Ready To Violate The Sixth Amendment

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It seems like there are fewer and fewer things that people can agree on these days.  Here’s a hint: it’s definitely not presidential policy.  Too vague?  Well, I just figured that during these troubled times of ours, the dearth of common ground found amongst the populace should make the few mutual points of agreement stick out like sore thumbs.  Or maybe I’m just too much of a bipartisan fool to think that new ways to give out even more traffic tickets will still tick everyone off equally regardless of whether they’re in the 99 or 1 percent.

Hopefully hearing me mention this new strike against your speeding-down-the-highway-loving ways roused you guys from your respective angry stupors.  Because in case you didn’t catch it in my intro paragraph, a photo radar technology company is coming out with a new piece of hardware to catch everyone in the act of speeding.  The device is named Cordon and is being developed by Simicon, AKA everyone’s new public enemy number one.

Cordon is essentially an advance photo radar system and is set to be released in 2012.  It works similarly to the automated speed surveillance systems in place in some cities today.  The only difference is that those systems can only track one car at a time.  Cordon puts them to shame by being able to monitor up to 32 vehicles at once across four lanes of traffic.  But that’s not all; Cordon is also able to simultaneously identify each car’s license plate number, snap and upload pictures of the car and its plate to a secured government server while measuring the car’s speed and location, and the device itself is small enough to be mounted on a road sign.  Talk about hellish.  Click here to see Cordon in action.

As mentioned earlier, automated speed surveillance isn’t necessarily a new idea.  But Cordon and systems like it raise a number of interesting ethical, privacy, and, most importantly, legal issues.  Aside from the fact that the whole thing is quite creepy and big brother-ish, dishing out speeding tickets based on the photo evidence provided by Cordon might very well be unconstitutional.  Specifically, it could be in violation of the confrontation clause in the Sixth Amendment.

In short, the confrontation clause assures citizens that should they ever be prosecuted for criminal charges, these citizens have a right to confront the witnesses being called against them.  It’s an important constitutional right because it ensures fairness in that it prevents the government from going around building wild cases against people using witness testimony that the defendant can’t rebuff.

But how does the confrontation clause apply to Cordon and its ilk?  Well, we can all thank a little case call Melendez-Diaz v. Massachusetts.  The US Supreme Court held in that case that when forensic reports sworn to be true by the signing expert are used against a defendant, the defendant is entitled to cross-examine the expert.  Extrapolating this further, the case could theoretically apply to all case where an expert swears by electronically produced data, such as the photos and speed readings given off by machines like Cordon.  When a defendant is given a speeding ticket based off of this type of automated photo evidence, he or she should have the right to examine the expert who processed it.  The government always has the burden of proof and as such should be required to have to show each time that the evidence they’re using against any defendant is true and accurate.

The evidence produced by Cordon and similar systems also creates another problem in that the technology is still unable to identify the drivers inside the car at the time that the speeding violation is recorded.  Most states have laws in place that don’t allow cars to be given tickets, but rather the person inside the car must be ticketed instead.  So if it can’t be proven that you were actually the one behind the wheel at the time your car was going 100 mph in a 40 mph zone, then is it fair that you should really have to pay the ticket?  What if your car was stolen or being driven by a desperate friend at the time?  The exclusionary rule tells us that evidence gathered in violation of the constitution should be kept out of a defendant’s case.  I would think that automated speed surveillance records sworn to be true by an analyzing expert would be no exception to this rule.

But what do you guys think about all of this?  Do you think it’s fair for the government to use systems like Cordon to hand out speeding tickets?  As always, sound off in the comment section.

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Is There a Constitutional Right to Play Loud Music in Your Car?

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A lawyer in Florida is making a big issue out of what would ordinarily be a minor annoyance: he was driving to work, and he got ticketed for playing music (Justin Timberlake, in case you were wondering) from his car stereo too loud.

Now, most people would simply pay the (very small, at $73.50) fine, and move on with their lives. But this guy was a lawyer, and has apparently decided that the state of Florida will have to pry his pop music from his cold, dead hands.

He went to court to challenge the ticket. Now, many people challenge tickets for minor traffic violations and related infractions, usually on the grounds that the state can’t prove that they engaged in the conduct they’re accused of. This lawyer, however, is arguing that the very law he was ticketed under is unconstitutional.

The Florida statute makes it an infraction for anyone to play music in their car that’s “plainly audible” at 25 feet or more. The lawyer is arguing that this is an infringement upon his First Amendment right to freedom of expression, and a violation of his right to due process because the law is unconstitutionally vague.

Now, I’m a very strong believer in free speech. When the Supreme Court ruled that Westboro Baptist Church had a right to protest the funerals of American soldiers killed in Iraq and Afghanistan, I reluctantly agreed with the ruling (though I found the conduct of the protesters absolutely repulsive). However, I’m not sure that the right to freedom of speech carries with it a right to make meaningless noise in a manner that seriously disturbs the peace.

After all, free speech generally means the freedom to convey information, or express ideas. Making noise just for the purpose of making noise probably doesn’t count. That’s part of the reason why noise ordinances and laws against disturbing the peace are constitutional.

In this case, the lawyer was playing his music really loud. This blurs the line between noise and expression. However, I think we should err on the side of allowing free expression, and any law that restricts it should be narrowly tailored and as clear as possible, to minimize its impact on speech which is clearly protected by the constitution.

In this case, the law that the lawyer was ticketed under is pretty vague. Furthermore, the statute has an exception for amplified advertisements or political speech. The Supreme Court has repeatedly held that commercial speech (like advertisements) is subject to weaker constitutional protection than other speech. So, any statute which provides more protection to commercial speech than to other forms of constitutionally-protected speech is a major constitutional no-no.

If the Florida Supreme Court ends up overturning this statute, I predict that a lot of pundits will deride it as another example of judicial activism, and the success of another frivolous lawsuit. The fact that the plaintiff is a lawyer will just make it an even juicier target.

This is unfortunate, because I think that this case is far from frivolous. It may seem trivial, but it only takes a trivial violation of a constitutional right to snowball into something more significant. While the actions of this lawyer may seem silly when viewed on their own, it is cases like this that prevent little restrictions of speech from accumulating into big ones.

And it’s not like the lawyer is even arguing that all noise regulations are unconstitutional. That’s not the position I’m taking, either. He’s simply making the valid point that this one happens to be vague and overbroad. If it’s overturned, the state legislature, if it wants to enact a new noise ordinance that’s constitutional, will have to actually put some thought into it this time.

This constitutional violation, like most of them, was probably not the result of a deliberate attempt on the part of the state legislature to deprive citizens of their right to free speech. Instead, it’s simply the result of poor drafting, resulting in a statute that’s so vague that no reasonable person can be sure when they’re violating it and when they’re not, making it unconstitutional.

Ordered liberty requires laws that are clear and well thought out. Sometimes, the only way to ensure that that happens is to have a few sloppily-written laws overturned by the courts.

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Red-Light Cameras Do Not Violate the Constitution

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I came across an article discussing something that most people dread—that little camera above the traffic light that tickets you!  Apparently a dozen cities and nine states have banned traffic cameras for financial and political reasons.  Although these little devices successfully catch more speeders and produce more tickets, which in turn brings in more revenue, they are expensive.  With the economy being the way it is, it is hard for many states to spend money on such devices.  Further, a lot of voters just hate the device.

What is interesting is that opponents of these small cameras have used the United States Constitution to substantiate their point.  Opponents claim that these cameras violate due process rights and invade one’s privacy.

After the mention of the due process violation, the article goes on to state that opponents feel there is a violation of due process because the cameras “don’t capture images of those who actually are behind the wheel.”  I completely disagree with this statement.  I have gotten a ticket in the mail before because I was caught speeding by a camera.  As I opened the envelope and took out my ticket, the next page displayed a large picture of me in the car, driving.  I was actually shocked to see how focused and clear the picture was.  My face was clearly shown and pictured from a very close angle.  This is why I do not believe the claim that the cameras do not capture the image of the driver.  The close angle and clarity at which those cameras take pictures leave no room for any mistakes as to who the driver is.

Even if the picture was not the best, does this camera really infringe upon our due process rights?  A violation of one’s due process rights would be when a person was deprived of life, liberty or property without going through some sort of legal proceeding.  In our situation, when a person receives a citation, they have the opportunity to go to court and contest it.  A citation by a camera is no different than a citation personally given by a cop on the side of the road.  Both allow individuals the opportunity to have their day in court.  Therefore, I see no violation of due process rights even if the picture was not completely clear.

Additionally, these cameras do not invade one’s privacy.  Now, for an invasion to occur, a person first needs to be in a place where they can reasonably expect privacy.  When you are on the road in your car, you are in a public area.  Photos taken of people in public areas are not seen as intruding upon people’s privacy because people are out and about, not isolated in a private area.

Now, opponents may argue that one has a reasonable expectation of privacy in their own car.  Sure, I can see that point.  However, our individual car is on a public road.  Our individual car has windows where people can see into them.  Our individual car is amongst many other cars.  Overall, our individual car does not constitute a small private world of our own.  Rather, we are just beings in our car, which is on a public road amongst other cars.  There is no privacy on the road.  Therefore, the claim that these cameras violate people’s privacy is without merit.

Even though I am not a fan of these cameras because I have been a victim to them, I do think they are a great idea.  They instill fear in people because people can get caught speeding even if a cop car is not nearby.  Whenever people see these cameras, they tend to slow down.  Drivers who drive cautiously are less likely to get into accidents.  Overall, the roads become safer.  The other side to this is to just implement small measures, like making the time for the yellow light longer so people slow down and have ample time control their speed.  This can have an adverse effect.  With longer yellow lights, more people can attempt to rush though the light by increasing their speed.  This is very risk and likely to result in an increase in accidents.  Rather than people using the extra time to slow down and stop, they will likely speed up and try to beat the light, overall endangering the lives of those around them.

With so many other issues in our world, such as our rising unemployment rates or increase in home foreclosures, I say we leave the little camera alone and let it do its job.  We, as citizens, can the focus on more important issues.

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Supreme Court to Consider Whether GPS Tracking a “Search” Requiring Warrant

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Anyone else following the new search and seizure Fourth Amendment case pending before the U.S. Supreme Court?  The Justice Department’s petition for writ sounds like something straight out of The Wire and has set the legal industry abuzz.

This case may sound like legal nerd stuff, but I assure you that unlike a lot of the corporate nonsense cases that the court has been entertaining as of late, the outcome of United States of America v. Antoine Jones could have some really board implications on how the police and other law enforcement agencies monitor and track criminal suspects.

The case in question was decided last year by a D.C. Circuit Court.  The defendant, Jones, was arrested and charged with drug trafficking by the police.  The cops suspected Jones was a narcotics distributor and placed an electronic GPS tracking device on his car.  Using satellite technology, the police were able to follow Jones’s movement about town and collect enough evidence against him to charge him.

The problem was that the cops did this without a warrant and when prosecutors tried to put Jones away, Jones raised a Fourth Amendment defense claiming that the GPS tracking device was tantamount to an illegal search and seizure of his car.  Jones faced a life sentence for his alleged crime, but the circuit court agreed with Jones’s argument and vacated his sentence.

Under the exclusionary rule, any evidence gathered that stemmed from an unconstitutional act (in this case the police’s alleged illegal search and seizure) must be excluded.   Therefore, Jones was able to escape the slammer.  Cops and prosecutors didn’t like this though, as they argued that GPS monitoring technology is an essential method of criminal investigation and that requiring cops to get warrants beforehand would unduely burden law enforcement tactics.

The topic of police GPS monitoring is one that’s ripe for litigation.  It’s one of the most divisive areas of criminal law today as many different state and federal courts have ruled differently on the subject, some for and some against and many with different exception to when and when it can’t be used.  Complicating matters further is the fact that almost every law enforcement agency today possesses this satellite tracking technology and are continuing to use it to help gather evidence for the prosecution of suspects.  That’s why the Justice Department has finally stepped in and asked the Supreme Court to intervene and finally settle this issue once and for all.

How will the court come out?  Who knows?  There are certainly sound legal and public policy arguments on both sides of the debate.  However, from my perspective it’s hard to deny that GPS tracking using is anything less than a violation of the Fourth Amendment.

I say this so definitively for one simple reason: the electronic tracking device.  Under US v. Karo, a seizure of one’s property occurs once police attach anything to the property that meaningfully interferes with the property’s use.  The facts in Karo are almost exactly the same as in Jones’s case.  There, cops had planted an electronic beeper in barrels that they suspected were being used to transport cocaine.  The Supreme Court struck this down clearly as unconstitutional.

Therefore, the GPS tracking device here is in and itself a search and seizure because it must be implanted onto a car or person in order to perform its function, which is to track a suspect’s whereabouts.  That’s restricting a person’s use of their property if I ever heard of one.  Not to mention that commercial tracking devices like the ones the police use probably aren’t as readily available to the public since they probably are special government issued devices.  Kyllo v. US states this as one of the factors that when present, implicate the Fourth amendment protections.

But what of the government’s argument that it’s not a search because they are only tracking his car from the public street.  The government relies heavily on Florida v. Riley, which stated that a helicopter in public airspace could track a suspect traveling on a public road because it didn’t meaningfully interfere with the suspect’s person or property.  Essentially, that this was equal to watching the same suspect in a stakeout ala The Wire.

However, the government’s argument falls apart because of the tracking device, which, again, must be implanted onto a suspect’s car.  This interferes with the suspect’s use of their car and furthermore, once the suspect takes their car into their garage, the device would then be inside private property and not on public roads anymore.

However, it will nonetheless be interesting to see how the Supreme Court comes down on this one.  Who knows?  Maybe they’ll pull another Citizens United and make another bonehead move with are civil liberties.

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