A Stitch in Haste
December 2, 2007

Depressing Fourth Amendment decision from a lower court:

Plaintiff’s car was suspected of being at the scene of several burglaries in 2002, and the police decided, after consultation with supervisors, to plant a GPS with a cellphone transmitter on the car. Plaintiff’s Fourth Amendment claim failed[.]

Interesting that the officers had time to consult with “supervisors,” but not with a judge (i.e., to obtain a warrant based on probable cause).

From the decision:

A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” United States v. Knotts, 460 U.S. 276 (1983). The use of the GPS Device did not permit the discovery of any information that could not have obtained by following an automobile traveling on public roads, either physically or through visual surveillance (e.g. through the use of cameras or from a helicopter), conduct that neither requires a warrant nor implicates Fourth Amendment rights. “Nothing in the Fourth Amendment prohibit[s] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afford[s] them.” Id. at 282.

This is, of course, utter nonsense.

First of all, the owner of the container in Knotts consented to the placement of the beeper in the container that he sold to the defendant in that case. So clearly Knotts is distinguishable. The additional pesky fact that the beeper in Knotts was placed in the container before it was loaded onto the vehicle, rather than on the vehicle itself, was brusquely dismissed by the trial court as irrelevant.

Note also the astonishingly absurd cognitive leap from Knotts (which I actually think is a reasonable decision) to this gobbledygook. The fact that the police may — from a distance — watch you drive along public roads, and the corollary that they may “augment” their “sensory faculties” — from a distance (e.g., via binoculars or a helicopter) — now somehow means that the police may also trespass upon your chattel property, without a warrant (and perhaps without any individualized suspicion at any level). “From a distance” suddenly becomes “from the innards of your own vehicle.” Splendid.

There are analogues elsewhere in the law: the notion that a sniff dog is not a “device” and therefore triggers little or no Fourth Amendment scrutiny; the notion that taser use triggers no heightened scrutiny and that this sometimes lethal weapon may be casually used whenever an officer deems it convenient.

The common thread across these fact patterns is the chilling doctrine that anything that makes police incursions upon people or property easier is presumptively valid. If you give law enforcement an inch, then the yard they later demand must be constitutional too? That simply cannot be right.

The case is Morton v. Nassau County Police Dep’t, 2007 U.S. Dist. LEXIS 87559 (E.D.N.Y., November 27, 2007).