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Thread: Court of Appeals allows WARRANTLESS GPS Tracking on Virginians

  1. #1
    Regular Member Repeater's Avatar
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    Court of Appeals allows WARRANTLESS GPS Tracking on Virginians

    This is a serious breach of freedom.

    This could give the green light to allow GPS tracking on vehicle outside gun shows -- the excuse being policing gun trafficking.

    This case involves the Fairfax Police -- imagine what they can do now:

    Based on all the information that they had collected, the police decided to monitor appellant’s movements by attaching a GPS system to one of his vehicles. The police did not obtain a warrant.

    On February 1, 2008, the Fairfax County police attached a GPS system to appellant’s work van, which was parked on the street in front of appellant’s home. The GPS system used three satellites to give the police information on the van’s location. The GPS device itself operated on an independent battery and, therefore, did not draw any power from the van. To install the GPS device, an officer “reached [his] hand sort of underneath the bumper to a place that is not observable [from] the public street.” The bumper on the van was “a long tube” with plastic ends and holes in it. The GPS device was attached to the left side of the rear bumper using a magnet and “a sticky substance.”

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    Hasn't this been allowed for a long time?

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    Regular Member virginiatuck's Avatar
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    RAS was a significant factor in this decision. I don't think this case has much bearing, if any, on gun-trafficking dragnets using GPS devices placed on random vehicles parked outside of gun shows. The court was pretty careful to distinguish that from this case. That's just my initial reaction to this. I'm not a lawyer so maybe I'm missing something.

    Here are some excerpts from the ruling:

    "Before addressing the specifics of his argument, we note that appellant raises several dire predictions of law enforcement officers attempting to track the whereabouts of every citizen in Virginia, if this Court finds the trial court did not err here. Several other appellate courts have acknowledged a very legitimate concern that, if the police are allowed to randomly track whole sections of the population without probable cause or reasonable suspicion, then privacy rights may well be violated. See, e.g., United States v. Knott, 460 U.S. 276, 284 (1983) (“f such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.”); Garcia, 474 F.3d at 998 (“It would be premature to rule that such a program of mass surveillance could not possibly raise a question under the Fourth Amendment . . . .”). However, this case does not involve dragnets and mass surveillance, so these warnings are not as relevant here. See Dow Chemical Co. v. United States, 476 U.S. 227, 239 n.5 (1986) (“Fourth Amendment cases must be decided on the facts of each case, not by extravagant generalizations.”)."


    "We find the police did not violate the Fourth Amendment of the United States Constitution or Article 1, section 10, of the Virginia Constitution by installing a GPS device in the bumper of appellant’s work van while it was parked on a public street or by tracking the van with the GPS system on the public streets, especially given that, before installing the GPS device and tracking the van, the police had reasonable, articulable suspicion that appellant was involved in a series of sexual assaults."

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    Regular Member sccrref's Avatar
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    If the RAS was sufficient, I do not see why a warrent was not obtained. It sounds to me like they were not sure of the RAS, tried the end around, got caught in the wrong and the courts let them get away with it. The ends evidently justified the means. I think we continue to slide down the slippery slope.

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    Campaign Veteran skidmark's Avatar
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    Sad to say, but the four corners of "search" and "intrude" have been marked by SCOTUS for quite some time now. This came nowhere near the 4th Amendment.

    Anybody else remember the flap when SCOTUS first said you had no expectation to privacy regarding the trash you put out? Nowdays nobody even gets excited about the notion that once it's out on the street you have no privacy, even to the extent that the cops can sit on the street trying to match up all the shredded strips as they pull them from your trashcan.

    At least so far, if you keep it inside your dwelling, or in a locked garage/shed you have some expectation of privacy.

    The kicker was it was not his truck, so he really had no expectation of privacy at all, per the current rules. His employer might have some expectation of privacy of the innards of the van.

    stay safe.

  6. #6
    Regular Member simmonsjoe's Avatar
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    Quote Originally Posted by sccrref View Post
    If the RAS was sufficient, I do not see why a warrentwarrant was not obtained.
    Interesting question. They could have simply tailed him old-school until it was issued.
    Last edited by simmonsjoe; 09-07-2010 at 10:13 PM.
    illegal ≠ immoral legal ≠ moral
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    Regular Member Virginiaplanter's Avatar
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    United States v. Maynard (2010)

    On August 6, 2010, the United States D.C. Court of Appeals ruled that GPS tracking is unconstitutional.


    http://pacer.cadc.uscourts.gov/commo...30-1259298.pdf

    GPS analysis and the 4th Amendment starts at page 15. Looks like they will have some new caselaw for the appeal.

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    Hee, hee. Well, if there is no warrant, there is really no record that the police put it there, right? So, if it suddenly falls off, or gets re-attached to a semi full of watermelons headed for Quebec, nobody can prove I did it. Right?

    "Oh! Was that your GPS tracker I stomped into the pavement, Officer? I'm sorry."

    No! Wait! What if I find a GPS tracker on my car, then promptly drive to the nearest 7-Eleven or donut shop and attach it to a police cruiser? "Hey! That guy is following our patrol cops around to all their calls!"


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    Founder's Club Member Jim675's Avatar
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    Every car should carry a first aid kit. Every first aid kit should have gloves.
    I'm just saying...

  10. #10
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    Randy Beales wrote the opinion

    Quote Originally Posted by skidmark View Post
    Sad to say, but the four corners of "search" and "intrude" have been marked by SCOTUS for quite some time now. This came nowhere near the 4th Amendment.
    I don't trust Beales. As Attorney General, he opined that guns could be banned in state parks.

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by Virginiaplanter View Post
    On August 6, 2010, the United States D.C. Court of Appeals ruled that GPS tracking is unconstitutional.


    http://pacer.cadc.uscourts.gov/commo...30-1259298.pdf

    GPS analysis and the 4th Amendment starts at page 15. Looks like they will have some new caselaw for the appeal.
    All this does is put four District Courts of Appeal (DC in one corner, 7th, 8th & 9th in the other) in controversy with each other. One of the cases will go to SCOTUS and they will decide. I'm not sure that Foltz will have as much to stand on in making an appeal, as the vehicle in question was not his.

    I'll start the popcorn.

    stay safe.

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by Repeater View Post
    I don't trust Beales. As Attorney General, he opined that guns could be banned in state parks.
    Agreed that Beales deserves close watching. But I'm hard pressed to see how his opinion in this case (Foltz) can impinge on guns - unless you are going to get into transporting them. Even then ....

    stay safe.

  13. #13
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    The problem is, GPS is a 'Secret Weapon'

    Quote Originally Posted by skidmark View Post
    Agreed that Beales deserves close watching. But I'm hard pressed to see how his opinion in this case (Foltz) can impinge on guns - unless you are going to get into transporting them. Even then ....

    stay safe.
    Police Turn to Secret Weapon: GPS Device

    The break in the case relied largely on a crime-fighting tool they would rather not discuss.

    "We don't really want to give any info on how we use it as an investigative tool to help the bad guys," said Officer Shelley Broderick, a Fairfax police spokeswoman. "It is an investigative tool for us, and it is a very new investigative tool."

    Across the country, police are using GPS devices to snare thieves, drug dealers, sexual predators and killers, often without a warrant or court order. Privacy advocates said tracking suspects electronically constitutes illegal search and seizure, violating Fourth Amendment rights of protection against unreasonable searches and seizures, and is another step toward George Orwell's Big Brother society.

    With the courts' blessing, and the ever-declining cost of the technology, many analysts believe that police will increasingly rely on GPS as an effective tool in investigations and that the public will hear little about it. Last year, FBI agents used a GPS device while investigating an embezzlement scheme to steal from District taxpayers, attaching one to a suspect's Jaguar.

    "I've seen them in cases from New York City to small towns -- whoever can afford to get the equipment and plant it on a car," said John Wesley Hall, president of the National Association of Criminal Defense Lawyers. "And of course, it's easy to do. You can sneak up on a car and plant it at any time."

    Without obtaining a warrant, Jack Kirk, a detective from the Fairfax police department's electronic-surveillance section, placed a GPS device on Foltz's van while it was parked in front of his house, Kirk testified. He said it took three seconds. Another vehicle was not targeted because it was on private property, he said.

    Detectives began actively monitoring the van four days later, when it appeared to be moving slowly through neighborhoods, Kirk said. Foltz was caught the next day.

    In preparing to defend Foltz, Leibig filed Freedom of Information Act requests with every police department in Virginia, asking about their use of unwarranted GPS tracking. Most departments said they had never used the device. About two dozen refused to respond, including Loudoun and Prince William counties, Alexandria and the Virginia State Police.

    Barry Steinhardt, director of the American Civil Liberties Union's technology and liberty program, considers GPS monitoring, along with license plate readers, toll transponders and video cameras with face-recognition technology, part of the same trend toward "an always-on, surveillance society."

    Paul Marcus, a law professor at Marshall-Wythe School of Law at the College of William and Mary in Williamsburg, said the debate will only grow stronger as more departments substitute old-fashioned manpower for better and cheaper electronics.

    "It is going to happen more and more," he said. "No question about it."
    It will likely become tempting to use this technology on dissidents and on a variety of unpopular groups, including gun owners.

    That is cause for concern. The police needs supervision; that's what the courts are for.

    Unsupervised cops soon become out-of-control cops. That is not good for Virginians or gun owners.

  14. #14
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    "In preparing to defend Foltz, Leibig filed Freedom of Information Act requests with every police department in Virginia, asking about their use of unwarranted GPS tracking. Most departments said they had never used the device. About two dozen refused to respond, including Loudoun and Prince William counties, Alexandria and the Virginia State Police." (emphasis by Citizen)
    Now, that is alarming. Since when do police have an option to refuse all information connected to an FOIA (Freedom of Information Act) request?

    There are exceptions in the FOI Chapter (2.2-3700 -3714) for on-going criminal investigations, but surely there is also general information that is not directly connected to a specific investigation.

    VA FOIA is here. Check out 2.2-3706.

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    I see a future for a new business opportunity...GPS tracking device detection, removal, and destruction!

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    1) If the cops had done exactly the same time by assigning a team of officers to follow the vehicle on a twenty-four hour basis visually, it would have been perfectly legal. I don't see anything about the change in technology that makes it any different, except that the lesser cost of implementation of surveillance plans thereby makes it feasible to track greater numbers of persons.

    2) What I do have a problem with is the use of a "sticky substance" to attach the device. That's a crime called "destruction of private property". If someone had done the same thing with a cop car, there's no question in my mind that he'd have been prosecuted. Whether it's private or public property, the degree of "damage" required is really minimal, and it's still a misdemeanor.

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    Campaign Veteran skidmark's Avatar
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    And now the 3rd Circuit weighs in http://www.eff.org/files/3d%20Circui...ll%20Site).pdf with a decision that the cops can without a warrant get records from your cell phone provider about where your cell phone was. They decide that a cell phone is not a "tracking device" although there is not a cell phone currently on the market that is not GPS-enabled - thanks to federal law!

    The decision is very technical. The laws cited are for the most part amendments to previous laws, so trying to understand them may require literal cut&paste jobs to see what happened when and to what/whom.

    The bottom line is that the 3rd Circuit says the cops can see even so far as which "face" of the specific cell tower handled you call, and from which face the hand-off to the receiving phone was made.

    Pretty much the only way to disable the GPS portion of your cell phone is to remove the battery. What's at least as scary is that the cops merely have to say in their petition for a court order to make the phone company release records is that the information is related to an ongoing investigation of (some specified type of) criminal activity - no RAS or better needed.

    This one scares me, as just about everybody has a cell phone. And folks who have an employer-issued cell phone generally also have a personal one, so as not to get caught up in boundary issues between work and private calls and if the boss can see who you are calling on your own time.

    stay safe.

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by user View Post
    1) 2) What I do have a problem with is the use of a "sticky substance" to attach the device. That's a crime called "destruction of private property". If someone had done the same thing with a cop car, there's no question in my mind that he'd have been prosecuted. Whether it's private or public property, the degree of "damage" required is really minimal, and it's still a misdemeanor.
    User - isn't that an issue for the employer, who is the owner of the van? If they don't complain (and given the nature of the case I do not see them wanting to be involved in any way) then by default the issue never gets decided. Right?

    stay safe.

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    Quote Originally Posted by skidmark View Post
    User - isn't that an issue for the employer, who is the owner of the van? If they don't complain (and given the nature of the case I do not see them wanting to be involved in any way) then by default the issue never gets decided. Right?

    stay safe.
    True - basic criminal law - no complaint, no foul. What bothers me is the hypocrisy inherent in the system. A system of justice that relies on the status of individuals for determination of judicial outcomes is not a system of justice.

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    We will be lucky if warrantless GPS tracking of vehicles is ultimately constrained by this "reasonable articulable suspicion" (RAS) standard as a matter of federal constitutional law. Though i would like to see a reintroduction of the tresspass to chattle angle to unreasonable intrusion, this is not the direction the law has taken for some time now.

    Many or most appeallate courts are simply allowing it without even an RAS showing; some state courts, e.g., Washington, are holding state constition requires a warrant.

    Meanwhile, I wonder if someone will develop a GPS tracker detector that could be used to identify GPS bugs placed upon our vehicles or persons??

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by skidmark View Post

    Pretty much the only way to disable the GPS portion of your cell phone is to remove the battery. What's at least as scary is that the cops merely have to say in their petition for a court order to make the phone company release records is that the information is related to an ongoing investigation of (some specified type of) criminal activity - no RAS or better needed.

    .
    No, some phones can have the GPS hacked. I have two that I've disabled GPS functions.
    Of course, the easy answer if the law allows GPS tracking...is just make sure your carrier doesn't know who you are.

    Who's worried about 2012, it's only 1984

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    Quote Originally Posted by skidmark View Post
    And now the 3rd Circuit weighs in http://www.eff.org/files/3d%20Circui...ll%20Site).pdf with a decision that the cops can without a warrant get records from your cell phone provider about where your cell phone was. They decide that a cell phone is not a "tracking device" although there is not a cell phone currently on the market that is not GPS-enabled - thanks to federal law!

    The decision is very technical. The laws cited are for the most part amendments to previous laws, so trying to understand them may require literal cut&paste jobs to see what happened when and to what/whom.

    The bottom line is that the 3rd Circuit says the cops can see even so far as which "face" of the specific cell tower handled you call, and from which face the hand-off to the receiving phone was made.

    Pretty much the only way to disable the GPS portion of your cell phone is to remove the battery. What's at least as scary is that the cops merely have to say in their petition for a court order to make the phone company release records is that the information is related to an ongoing investigation of (some specified type of) criminal activity - no RAS or better needed.

    This one scares me, as just about everybody has a cell phone. And folks who have an employer-issued cell phone generally also have a personal one, so as not to get caught up in boundary issues between work and private calls and if the boss can see who you are calling on your own time.

    stay safe.
    By the way, the "E" in the "E911" "improvements" to cell phone regulations doesn't just provide for the ability to track movements by means of the GPS function built into the phone. The really scary part is that the microphone and the camera (if equipped) can be turned on remotely even when the device is "off". Oh, and by the way, the GPS can't be turned off, either. The option in the setup function for turning off the GPS is only to turn it off for your own purposes. And there are cases holding that the Eavesdropping, Wiretapping, and Electronic Surveillance Act doesn't apply to LEO surveillance, either - the Telecommunications Act of 1933 authorizes any person to receive radio transmissions from any source. And microwaves are "radio transmissions". You can either put the cell phone in a metal (microwave proof, such as steel - aluminum may work depending on the thickness) box, or take out the battery. Otherwise, you're "on", and "they're" listening.

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    Regular Member wylde007's Avatar
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    Angry

    Quote Originally Posted by peter nap View Post
    Who's worried about 2012, it's only 1984?
    Indeed.

    I say if they contend I have no expectation of privacy about my personal vehicle in front of my own home or business then they should have no expectation of not being shot for trespassing.

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    Quote Originally Posted by Citizen View Post
    Hee, hee. Well, if there is no warrant, there is really no record that the police put it there, right? So, if it suddenly falls off, or gets re-attached to a semi full of watermelons headed for Quebec, nobody can prove I did it. Right?

    "Oh! Was that your GPS tracker I stomped into the pavement, Officer? I'm sorry."

    No! Wait! What if I find a GPS tracker on my car, then promptly drive to the nearest 7-Eleven or donut shop and attach it to a police cruiser? "Hey! That guy is following our patrol cops around to all their calls!"
    Heh, as fun as that might be, I'm sure I could scavenge some great electronic parts out of one of those things for one of my projects.
    Why open carry? Because 1911 > 911.

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    Regular Member SAvage410's Avatar
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    Wink Meh ...

    Quote Originally Posted by user View Post
    By the way, the "E" in the "E911" "improvements" to cell phone regulations doesn't just provide for the ability to track movements by means of the GPS function built into the phone. The really scary part is that the microphone and the camera (if equipped) can be turned on remotely even when the device is "off". Oh, and by the way, the GPS can't be turned off, either. The option in the setup function for turning off the GPS is only to turn it off for your own purposes. And there are cases holding that the Eavesdropping, Wiretapping, and Electronic Surveillance Act doesn't apply to LEO surveillance, either - the Telecommunications Act of 1933 authorizes any person to receive radio transmissions from any source. And microwaves are "radio transmissions". You can either put the cell phone in a metal (microwave proof, such as steel - aluminum may work depending on the thickness) box, or take out the battery. Otherwise, you're "on", and "they're" listening.
    When not "in use", my cell phone is usually tucked away in my pants pocket. They can listen to me farting (and take the requisites pictures) all they want. Not the GPS thing could be an issue: "Hey - he spent the last 2 hours in the can, man!"

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