Another attack on the fourth amendment

[Tucker Case]

This is a very slippery slope, Tucker.

What's to keep the DoT from determining that GPS is a safety feature like and mandating their inclusion on all cars? Don't forget that GPS also tracks velocity. Would you be OK with getting a speeding ticket based on GPS tracking data? Would you be OK with the government tracking your movements based on your cell phone GPS? Did you know that the FBI (among others) can remotely activate your cell phone and use it as a listening device for any location where you are? Would you be OK with them doing that without a warrant? They don't have to touch your phone to do it, so they aren't violating your property rights to do it, are they? Say they listen in on a conversation you have at a McDonald's. Are you OK with that, since it's a public place?

I'll keep my privacy, thank you very much.

If I am talking on my cell phone at a park, and the government has a recording device in that park to pick up what is said in that park, none of my rights would be violated if they recorded my portion of the conversation..

If I'm talking to someone in person in that park, then neither one of us has had our rights violated.

Teh idea that they can't tap a phone without a warrant is a far cry from not being able to record conversations that occur in public.

 

[OldDominionWhig]

If I am talking on my cell phone at a park, and the government has a recording device in that park to pick up what is said in that park, none of my rights would be violated if they recorded my portion of the conversation..

If I'm talking to someone in person in that park, then neither one of us has had our rights violated.

Teh idea that they can't tap a phone without a warrant is a far cry from not being able to record conversations that occur in public.

Respectfully, your examples are completely inaccurate. The Federal government and State governments have statutory procedures for the authorization to intercept and/or record oral, electronic, or wire communications. The government cannot just lay out a “trap” in public places and see who falls in.

 

[Tucker Case]

Respectfully, your examples are completely inaccurate. The Federal government and State governments have statutory procedures for the authorization to intercept and/or record oral, electronic, or wire communications. The government cannot just lay out a “trap” in public places and see who falls in.

Is it that they "cannot" or they "do not"?

 

[OldDominionWhig]

Is it that they "cannot" or they "do not"?

I’ll address each of your points specifically,

Teh idea that they can't tap a phone without a warrant is a far cry from not being able to record conversations that occur in public.

Not correct, they are often covered by the same statue and have defined procedures, which if willfully violated by agents of the government, are subject to criminal action.

If I am talking on my cell phone at a park, and the government has a recording device in that park to pick up what is said in that park, none of my rights would be violated if they recorded my portion of the conversation..

Not correct, Fed. statues and many state statues do not allow the government to arbitrarily listen to individuals' conversations or in on individuals’ cell phone calls.

If I'm talking to someone in person in that park, then neither one of us has had our rights violated.

Not correct under the facts presented, by statue they are not permitted to just set a listening device up to hear random conversations. There is even applicable case law, Katz V. United States, “…the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, over-heard without any technical trespass under . . . local property law."

 

[Tucker Case]

Not correct, they are often covered by the same statue and have defined procedures, which if willfully violated by agents of the government, are subject to criminal action.

That's false. Public spaces are not uniformly coverd as such. Typically, any such statute only affects situations where there is a reasonable expectation of privacy.

Not correct, Fed. statues and many state statues do not allow the government to arbitrarily listen to individuals' conversations or in on individuals’ cell phone calls.

False. If there is no reasonable expectation of privacy, it is not covered under the 4th. This is why informants and undercover agents can wear wires without there being a need for a warrant. You have no reasonable assurances that they are not wearing a wire.

Not correct under the facts presented, by statue they are not permitted to just set a listening device up to hear random conversations. There is even applicable case law, Katz V. United States, “…the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, over-heard without any technical trespass under . . . local property law."

Nothing in that ruling prevents a listening device in an open area, such as under a park bench. The key aspect of that ruling was that he closed the telephone booth's door.

He would not have been able to do somehting visible in that phone booth without it being evidence, though, as there is no reasonable expectaiton of privacy if one does not take certain steps that would be reasonable if one sought privacy.

Walking in a park =/= taking steps to asure privacy. In such instances, a conversation had there would be admissable in court.

In the case of GPS, the polain view doctrine comes into play. The information that is gathered is something in plain view and no effort is made to conceal it.

 

[OldDominionWhig]

That's false. Public spaces are not uniformly coverd as such. Typically, any such statute only affects situations where there is a reasonable expectation of privacy.

I could not find the “none of this applies if the communication is in public” section in…
U.S.C. Title 18, Part I, Chapter 119;
Virginia Code 19.2-68;
Maryland Code 10-408;
Delaware Code, Title 11, Chapter 24, 2407;
D.C. Statue 23-547;
Kansas Code 22-2516;
New Jersey Statues 2A:156A-8 through 10;
Pennsylvania Code 18 Pa.C.S.A. § 5710;
Wyoming Statues 7-3-705 and 7-3-707;
Wisconsin Statue 968.30;
West Virginia Code §62-1D-11;
Tennessee Code 40-6-304;
Utah Code 77-23a-8 and 77-23-10;
South Carolina Code 17-30-70 and 17-30-80;
Oregon Code 133.724

Sorry, I got tired of reading the same verbiage as the federal statue time and time again.

None of these statues gave the government carte blanche to intercept private non-criminal conversations in public. Could you please let me know where you found the statues to support your claim that “Typically, any such statute only affects situations where there is a reasonable expectation of privacy”?

One thing these statues did have in common is they required warrants obtained by sworn affidavit for the interception of oral communication. I believe the 4th Amendment requires warrants to only be issued when obtained by sworn affidavit?

 

[OldDominionWhig]

False. If there is no reasonable expectation of privacy, it is not covered under the 4th. This is why informants and undercover agents can wear wires without there being a need for a warrant. You have no reasonable assurances that they are not wearing a wire.

Yes if a criminal speaks to other criminals (or agents posing as criminals) they have no expectation of privacy, but that is a far cry from you declaration that…

If I am talking on my cell phone at a park, and the government has a recording device in that park to pick up what is said in that park, none of my rights would be violated if they recorded my portion of the conversation.

 

[OldDominionWhig]

The key aspect of that ruling was that he closed the telephone booth's door…

Actually Katz is important provided a “test” to determine if the 4th amendment applies to particular cases. The “test” is: (1) Is there a subjective expectation of privacy? (2) Would society agree the expectation of privacy is reasonable?

To limit the case to Charles Katz closed the phone booth door as the bright line rule would be the equivalent to proclaiming criminal suspects need to be read their constitutional guarantees only in cases where they are arrested for kidnapping and rape. (i.e. Miranda V. Arizona)

 

[Tucker Case]

Yes if a criminal speaks to other criminals (or agents posing as criminals) they have no expectation of privacy, but that is a far cry from you declaration that…

Did you miss the part where I said "my portion of the conversation"?

 

[Tucker Case]

I could not find the “none of this applies if the communication is in public” section in…

It doesn't need to be there. Caselaw has made it so that a reasonable expectation of privacy is the metric that is used, not "none of this applies if the communication is in public".

None of these statues gave the government carte blanche to intercept private non-criminal conversations in public. Could you please let me know where you found the statues to support your claim that “Typically, any such statute only affects situations where there is a reasonable expectation of privacy”?

You've already cited teh case that proves my point.

 

[Tucker Case]

Actually Katz is important provided a “test” to determine if the 4th amendment applies to particular cases. The “test” is: (1) Is there a subjective expectation of privacy? (2) Would society agree the expectation of privacy is reasonable?

To limit the case to Charles Katz closed the phone booth door as the bright line rule would be the equivalent to proclaiming criminal suspects need to be read their constitutional guarantees only in cases where they are arrested for kidnapping and rape. (i.e. Miranda V. Arizona)

Nobody is doing such limiting. The reaosnable expectation of privacy in that case came because he closed the door. In other cases, it comes from taking postive actions to ensure a reasonable expectation of privacy.

 

[OldDominionWhig]

No, I did not miss your statement about the government can record your portion of the conversation in public. Looking at U.S.C. 18-119

Except as otherwise specifically provided in this chapter any person who— intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication…whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both.

Agents of the government are allowed to record you IF they are investigating the crimes outlined in U.S.C. 18-119-2516(or by specific exclusions outlined in 18-119-2511) AND they follow the procedures outline in U.S.C. 18-119-2518.

You had previously stated that conversations are fair game for the government to record anyone who speaks in public. When informed of the statues that make it unlawful to conduct en masse surveillance and arbitrarily intercept cell phone conversations, you countered the statues typically affect situations where there is a reasonable expectation of privacy. When asked to provide where you found the statutory backing for your statement you declared it did not have be in the statue and that it was grounded in Katz.

There is the problem with your logic. Katz v. United States was decided in 1967, the case deals with warrantless “searches” through interception of oral communication. In Justice Stewart’s opinion of the court, declared the 4th amendment extends to the warrantless recording of oral statements. The court’s opinion was not limited to the closing of the telephone booth door as you imply, the court’s opinion stated

These [4th amendment] considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.

relying on Katz alone is in direct contradiction to your assertion, because the court found the government should have obtained a warrant to authorize the interception.

Additionally, the federal statues regulating electronic intercepts were passed into law by the Omnibus Crime Control and Safe Streets Act of 1968. The findings of the Church Committee and the rulings in the Katz and Berger cases ushered along the passage of the “Wiretap Act” to limit, not increase, the ability of government to conduct warrantless electronic interception of communication. Most states then passed similar laws (if not verbatim) in their own legislatures to protect against the government laying an arbitrary “trap” in public to see who falls in. Wearing a wire in an investigation is not analogous to interception of random conversations.

 

[Tucker Case]

No, I did not miss your statement about the government can record your portion of the conversation in public. Looking at U.S.C. 18-119

Agents of the government are allowed to record you IF they are investigating the crimes outlined in U.S.C. 18-119-2516(or by specific exclusions outlined in 18-119-2511) AND they follow the procedures outline in U.S.C. 18-119-2518.

You had previously stated that conversations are fair game for the government to record anyone who speaks in public. When informed of the statues that make it unlawful to conduct en masse surveillance and arbitrarily intercept cell phone conversations, you countered the statues typically affect situations where there is a reasonable expectation of privacy. When asked to provide where you found the statutory backing for your statement you declared it did not have be in the statue and that it was grounded in Katz.

There is the problem with your logic. Katz v. United States was decided in 1967, the case deals with warrantless “searches” through interception of oral communication. In Justice Stewart’s opinion of the court, declared the 4th amendment extends to the warrantless recording of oral statements. The court’s opinion was not limited to the closing of the telephone booth door as you imply, the court’s opinion stated

relying on Katz alone is in direct contradiction to your assertion, because the court found the government should have obtained a warrant to authorize the interception.

Additionally, the federal statues regulating electronic intercepts were passed into law by the Omnibus Crime Control and Safe Streets Act of 1968. The findings of the Church Committee and the rulings in the Katz and Berger cases ushered along the passage of the “Wiretap Act” to limit, not increase, the ability of government to conduct warrantless electronic interception of communication. Most states then passed similar laws (if not verbatim) in their own legislatures to protect against the government laying an arbitrary “trap” in public to see who falls in. Wearing a wire in an investigation is not analogous to interception of random conversations.

You need to reread the ruling on the case:

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210 ; United States v. Lee, 274 U.S. 559, 563 . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. [389 U.S. 347, 352] See Rios v. United States, 364 U.S. 253 ; Ex parte Jackson, 96 U.S. 727, 733 .

Even more importantly:

The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye - it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, 10 in a friend's apartment, 11 or in a taxicab, 12 a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

If I make no reasonable effort to conceal something in public whatsoever, it is not subject to the 4th amendment.

 

[Ikari]

I wonder what would happen if we do this to the cops? Would we get in trouble? I bet dollars to donuts you do.

But I also think that this is one toke over the line. Driveway and car are my property. I have expectation that the government respect my property rights and not augment my property to behave or operate in manners I do not wish them to behave or operate under unless they can get a warrant approved to allow them to do so. Technology will explode, and as it does we have to be sure to restrict its usage by the government. They're going to assume they have the power because it's new and hasn't been commented on, but I think it needs to be the opposite. When it comes to any time of electronic surveillance or data mining, the government needs to get a warrant first. That's all there is to it. That's the best, safest way to ensure proper use of power by the government.

 

[Tucker Case]

I wonder what would happen if we do this to the cops? Would we get in trouble? I bet dollars to donuts you do.

But I also think that this is one toke over the line. Driveway and car are my property. I have expectation that the government respect my property rights and not augment my property to behave or operate in manners I do not wish them to behave or operate under unless they can get a warrant approved to allow them to do so. Technology will explode, and as it does we have to be sure to restrict its usage by the government. They're going to assume they have the power because it's new and hasn't been commented on, but I think it needs to be the opposite. When it comes to any time of electronic surveillance or data mining, the government needs to get a warrant first. That's all there is to it. That's the best, safest way to ensure proper use of power by the government.

I agree that a warrant should be used in such cases, but I'm not convinced it is legally necessary accordingto the fourth as well as previous court rulings.

United States v. Knotts is pretty much the most appropriate precedent for this situation, and in that case the SC ruled that:

Monitoring the beeper signals did not invade any legitimate expectation of privacy on respondent's part, and thus there was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment. The beeper surveillance amounted principally to following an automobile on public streets and highways. A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements. While respondent had the traditional expectation of privacy within a dwelling place insofar as his cabin was concerned, such expectation of privacy would not have extended to the visual observation from public places of the automobile arriving on his premises after leaving a public highway, or to movements of objects such as the chloroform container outside the cabin. The fact that the officers relied not only on visual surveillance, but also on the use of the beeper, does not alter the situation.

 

[Ikari]

I agree that a warrant should be used in such cases, but I'm not convinced it is legally necessary accordingto the fourth as well as previous court rulings.

United States v. Knotts is pretty much the most appropriate precedent for this situation, and in that case the SC ruled that:

I think when it comes to this invasive type of tracking that there MUST be a warrant involved. Especially since your infringing upon property rights as well.

I mean if all this is true, you have no expectation of privacy so much so that you have no expectation that you are not being tracked, this should be a two-way door; right? Do you honestly believe a citizen could huck a GPS device on a cop car when it's parked outside a donut shop and not get in trouble (if found out)? I don't think so, I think he's gonna get arrested. Fine, he tampered with private property. That private property may be in public, so it's not like it is invisible; but it's still private property. Well actually...a cop car may be public property in the sense that we buy those damned cars. But point remains.

I don't think we can just sit back and say "fine" on this one; I think it is important to understand the 4th and why it was there in the first place. Sure, it doesn't speak to electronic surveillance, but that didn't exist. The point was that you have the right to secure all your information and property, that if the cops want to take a look at your information or property they have to get permission to do so. What our information is changes. Back in the day it was just papers mostly; contracts and things of that nature. Now there's well more, there is a lot of digital information as well; and I for one believe we have the right to have that secured against government search. Get a warrant. Data mining should also be heavily constricted; both publicly and privately (meaning government and private company). As our technologies expand, we must be even more diligent in our watch against bad government. And government must continue to be restricted and constrained. For the health and longevity of the Republic.

 

[Caine]

I wonder what would happen if we do this to the cops? Would we get in trouble? I bet dollars to donuts you do.

But I also think that this is one toke over the line. Driveway and car are my property. I have expectation that the government respect my property rights and not augment my property to behave or operate in manners I do not wish them to behave or operate under unless they can get a warrant approved to allow them to do so. Technology will explode, and as it does we have to be sure to restrict its usage by the government. They're going to assume they have the power because it's new and hasn't been commented on, but I think it needs to be the opposite. When it comes to any time of electronic surveillance or data mining, the government needs to get a warrant first. That's all there is to it. That's the best, safest way to ensure proper use of power by the government.

You can't make up rights as you go along.

Can you show me where this restriction on government is enumerated in the constitution?

 

[Tucker Case]

I think when it comes to this invasive type of tracking that there MUST be a warrant involved. Especially since your infringing upon property rights as well.

Change "must" to "should" and I agree with you. Must implies that there is some legal/constitutional impetus for a warrant requirement. According to US v. Knox, there isn't.

I mean if all this is true, you have no expectation of privacy so much so that you have no expectation that you are not being tracked, this should be a two-way door; right? Do you honestly believe a citizen could huck a GPS device on a cop car when it's parked outside a donut shop and not get in trouble (if found out)? I don't think so, I think he's gonna get arrested. Fine, he tampered with private property. That private property may be in public, so it's not like it is invisible; but it's still private property. Well actually...a cop car may be public property in the sense that we buy those damned cars. But point remains.

Actually, that would be a great way to protest the ruling. Set up a website that has all of the cop cars tracked so people know where the speed traps are and such. If they decided to prosecute for tampering with property, they'd screw their own ability to use the method to track otehrs. If they didn't prosecute, you'd know where all of the cop cars in the city are and could speed more often and whatnot.

Until there is legal precedent that this actually is an augmentation or it tampers with the vehecile (if it is only superficially attached using magnets, for example, it does not qualify as a technical augmentation of the vehicle).

I don't think we can just sit back and say "fine" on this one; I think it is important to understand the 4th and why it was there in the first place. Sure, it doesn't speak to electronic surveillance, but that didn't exist. The point was that you have the right to secure all your information and property, that if the cops want to take a look at your information or property they have to get permission to do so. What our information is changes. Back in the day it was just papers mostly; contracts and things of that nature. Now there's well more, there is a lot of digital information as well; and I for one believe we have the right to have that secured against government search. Get a warrant. Data mining should also be heavily constricted; both publicly and privately (meaning government and private company). As our technologies expand, we must be even more diligent in our watch against bad government. And government must continue to be restricted and constrained. For the health and longevity of the Republic.

I think that if we would like to see somehting done about it, we need to use a proper argument that can stand up in court. Simply saying it's an illegal search and seizure fails becuase of the precedents on this exact type of thing (electronic tracking) and the fact that the info gathered falls under "plain view" criteria.

I'm all for disagreeing with it, I'm opposed to doing so with fallacious arguments.

 

[Patria Antiqua]

It's more like the "Bill of Friendly, No-Pressure Suggestions" to be honest.

 

[LaughAtTheWorld]

Yeah, the US government and other governments are all going to hell and crap these days. Partisan politics, partisan justice, clueless cops, stupid judges, hell, no wonder people predicted that the world will be destroyed by 2012 at the rate we're going

 

[LaughAtTheWorld]

With spies, security thugs, criminals doing it, I think the bureaucrats at their plush offices feel envy and want to join on the ship. Welcome aboard, new member of the crew. This guy's name is The Government.

 

[Ikari]

You can't make up rights as you go along.

Can you show me where this restriction on government is enumerated in the constitution?

The 9th and 10th amendment

 

[Ikari]

Change "must" to "should" and I agree with you. Must implies that there is some legal/constitutional impetus for a warrant requirement. According to US v. Knox, there isn't.

No, Must implies that there must be some legal/constitutional impetus for a warrant requirement. Meaning that it is imperative to have it, it is necessary to have it, that if we don't have it then we have to install it. That's what the MUST refers to. It's essential to our freedom and liberty.

Actually, that would be a great way to protest the ruling. Set up a website that has all of the cop cars tracked so people know where the speed traps are and such. If they decided to prosecute for tampering with property, they'd screw their own ability to use the method to track otehrs. If they didn't prosecute, you'd know where all of the cop cars in the city are and could speed more often and whatnot.

Until there is legal precedent that this actually is an augmentation or it tampers with the vehecile (if it is only superficially attached using magnets, for example, it does not qualify as a technical augmentation of the vehicle).

Maybe, but dollars to donuts says you end up in jail. There's no way the authority would allow the common man to abuse property and privacy rights. Only they can do that.

I think that if we would like to see somehting done about it, we need to use a proper argument that can stand up in court. Simply saying it's an illegal search and seizure fails becuase of the precedents on this exact type of thing (electronic tracking) and the fact that the info gathered falls under "plain view" criteria.

I'm all for disagreeing with it, I'm opposed to doing so with fallacious arguments.

It's not fallacious arguments, there is nothing deceptive about it nor have I said something untrue. That car is my property. That driveway is my property. Government is not allowed to just come in willy nilly and plant whatever they want where ever they want. Courts may have said one thing or another, but courts are not infallible. There is a base here that deals with the property and privacy of the average citizen and restrictions upon proper use of government power. While I understand that in public there is no expectation to privacy, I don't think that means the sky is the limit for police. They still are restricted. They can't do whatever they want. I do have expectations to my property, that it is not tampered with or augmented without sound reason; particularly by the government and doubly so for the mafia.

You can't just go and **** with my property, even if it's on public ground. I have every right to secure it and every expectation that it remain secure.

 

[Tucker Case]

No, Must implies that there must be some legal/constitutional impetus for a warrant requirement. Meaning that it is imperative to have it, it is necessary to have it, that if we don't have it then we have to install it. That's what the MUST refers to. It's essential to our freedom and liberty.

We don't HAVE to do anything. That's why you really mean "Should".

Maybe, but dollars to donuts says you end up in jail. There's no way the authority would allow the common man to abuse property and privacy rights. Only they can do that.

It's not illegal to do it, so I can be fairly confident I wouldn't end up in jail for it. Hyperbole's fun and all, but lets not get too carried away.

It's not fallacious arguments, there is nothing deceptive about it nor have I said something untrue. That car is my property. That driveway is my property. Government is not allowed to just come in willy nilly and plant whatever they want where ever they want. Courts may have said one thing or another, but courts are not infallible. There is a base here that deals with the property and privacy of the average citizen and restrictions upon proper use of government power. While I understand that in public there is no expectation to privacy, I don't think that means the sky is the limit for police. They still are restricted. They can't do whatever they want. I do have expectations to my property, that it is not tampered with or augmented without sound reason; particularly by the government and doubly so for the mafia.

Your property would not be tampered with or augmented. That's why you are using fallacious reasoning. It's called 'equivocation". You are using those words to mean something they do not actually mean.

You can't just go and **** with my property, even if it's on public ground. I have every right to secure it and every expectation that it remain secure.

Cops can put tickets ounder your windshield wiper. That's about as much "****ing" with your property as magnetically attaching a GPS is. Like I said, the argument you are presenting is fallacious. It doesn't have a solid logical framework. It's merely hyperbole and equivocation used to make an emotional appeal. It wouldn't even begin to work as a legal argument.

 

[Caine]

Im still waiting for what privacy someone is losing from this............................

While I still say that a warrant is a good idea, in this particular case... the arguments some of you are using are so out of this world when it comes to what rights you think exist.

Im starting to wonder if you folks think the Police should need a warrant to look up registry information for a DMV License plate........