http://police4aqi.wordpress.com/2012/01/24/parody-not-legal-advice/

…doesn’t Sotomayor’s reasoning sound like it could be extended to call into question the “crime-stopper” surveillance cameras that some municipalities are installing in their downtown areas?

I used to think that as well but, as the videoing-cops-in-public issue has developed in my head, I realized that, if people can record cops in public then the reverse seems pretty fair. It’s our private lives that are guarnteed minimal scrutiny under the Constitution.

…but unless the police suffer when they break the law they won’t stop breaking the law.

This is what makes this a SCOTUS-worthy case. Regular readers here would tend, I believe, to see this as indipsutably overly intrusive on the part of LEO [ie: some local faction of Big Gov].

But the F#*& Justice! We’re busting us some scumbag ass!
routine escalation of use of force, from SWAT teams breaking up a few dozen peeps playing Texas Hold ‘Em to pepper spraying Occucry Wall Streeters, is really just an extension of the acceptance of the “If you’re not doing anything wrong then you’ve got nothing to worry about.” fallacy of liberty and justice that’s so pervasive in our society.

We’ve given them all kinds of rope. Now they think they’re cowboys.

http://www.cnn.com/2012/01/23/world/americas/mexico-blind-drug-mules/index.html

Good to know that the punishment for doing nothing wrong is six months in jail.

That might be why the other justices didn’t want to open this can of worms (though I for one think it ought to be opened).

The Supreme Court pretended that those things mattered (for the time being). However, under some views of Constitutional law, those things don’t matter. That is because there is a school of thought of Constitutional law (we’ll all it the Kerr school*) that says that the court can only decide if probable cause exists at the time of the warrant application, and that any other onditions they purport to attach to the warrant are non-binding. If the Kerr school is correct, then the device was attached in a way that met all valid terms of the warrant (with the 10 day and DC conditions ostensibly being invalid under the Kerr school analysis). Maybe that is what the state will argue on remand. Maybe the Professor will even do the SOTUS argument for them on the next round. He really seemed to want to see that drugdealer go to prison back in November, and I am sure Alito and Roberts want him there too.

FOOTNOTE(S): EG: http://volokh.com/2011/06/22/vermont-supreme-court-hears-oral-argument-on-case-about-ex-ante-restrictions-on-computer-warrants/. The opposing school is the Kozinski school. That famous 9th cir judge thinks warrant-issuing-magistrate CAN place enforceable restrictions and conditions on the manner of warrant.

I think you are 100% correct. My first though is that this would appear to make police confiscation of a camera followed by erasure of footage unconstitutional. Carlos Miller, call your office.

This is a fundamental change to bedrock constitutional protections in a way that unambiguously *expands* the protection of the citizenry. That’s rare and worth celebrating.

there are lots of cases where the police trespass and then claim that it is okay for the police to trespass, 4A notwithstanding. These are not GPS cases I am talking about, but simple garden variety cases where police go into a home or vehicle where they do not belong. These trespasses often seem to be excused, either by qi or by not being raised at all in the shadow of qi. Now it seems like trespass has been recognized as pretty much a prima facie 4A violation across the board. THAT’S HUGE!!!

You may wonder what I mean by “police trespass.” One example would be the puppycide story I posted about today (that Mr. Balko was kind enough to link). Here is another example with video:

http://youtu.be/kassP7zI0qc

Now, obviously this was a famous video from last year and many of you have seen it before. However, my point is that [] nobody, but nobody, but nobody-but-me criticized the policeman (the nice one, not the mean one*) for hopping into the backseat of the car right off the bat. That is a trespass, but it was totally unremarked upon (except by me).

Despite the fact that police trespasses can vary greatly in their details, the important thing to realize is that policemen trespass all the time (often with guns drawn) because they don’t see trespass as an automatic Constitutional violation. That perception needs to change and Justice Scalia’s opinion is just the thing (although I wish he had gotten 5 votes). In this way, Justice Scalia’s opinion is much broader than mere GPS issues and actually speaks to a more urgent issue. Whatever a new technology is (and there are new things every day), the police need a warrant if they need to break the law pre-existing laws to employ the new technology. The is good to know as a starting point. It is a nice bright line rule that will take care of lots of “easy” cases where the police intrusion is both creepy and a violation of pre-existing law. This will leave the more difficult cases where the intrusion is creepy, but relatively novel. That is basically how courts are supposed to organize and prioritize the new law they choose to make.

FOOTNOTE(S):

* The mean policeman got fired last week because there were other similar incidents that came to light bcs of the linked vid.

The Roberts court is very aware of the implications of the decisions it makes. You can imagine them quaking at headlines that scream “SUPREME COURT SAYS POLICE CAN TRACK YOUR CAR WITHOUT WARRANT”.

It has a bit of a ‘that’s the last straw’ feel about it, doesn’t it?

Instead they now get a “SCOTUS sides with people against police” headline, while allowing EXTENSIVE tracking to be found legal in the future. As far as I can tell, this opinion means if the police put a tracker on your car in a government owned lot, or issue you a plate with a tracker, that’s perfectly fine. It also sets up the stage to continue to regard your private information as unprotected by the 4th the second it goes to a third party and becomes a ‘business record’ of theirs.

They just sensed that they’ve been turning the water temperature up a little too fast.

“and yet there is no penalty to the police (that I know of)?”

I believe the conviction was thrown out, and, if the defendant is retried, the evidence collected through the GPS tracking, as well as all evidence derived from that, cannot be used at trial.

I realize this may not be entirely satisfactory to you. The way I look at it, though; in this case, it wasn’t like the cops went in and said, “Yeah, we know what the law is, but we’re going to defy it anyway. F–k you.” In this case, it seems like it was a new area of law; the cops thought the law said one thing, the defense thought it said another, and the Court came down on the defense’s side.

In retrospect, I think the cops would have been smarter to get a warrant first, if they had any doubt what the law was. That way, they would have been covered. But I can’t attribute what they did IN THIS SPECIFIC CASE to malice, nor am I able to believe that they should suffer because they ended up defining new law.

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 be searched, and the persons or things to be seized.

Accordingly, the question left open for another day is whether placing a gps on a vehicle is a reasonable search. As already noted, a majority of the Court would appear to have already indicated that it would not be reasonable.

“The Supreme Court on Monday unanimously ruled that the police violated the Constitution ”

and yet there is no penalty to the police (that I know of)? The police will continue to violate the law/Constitution until there is a very good reason for them to stop (ie the police receive a public smack down or worse). And sadly, even a ruling from the high and mighty Supremes holds little/no sway down in the dirt where the police live. They are judge, jury and executioner until those roles are forcibly taken from them.

It’s a good ruling, but unless the police suffer when they break the law they won’t stop breaking the law.