http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

Could this indicate how the Court might rule on cell-phone searches?????

[This message was edited by John A. Stride on 01-23-12 at .]

I have concerns that issue-advocates will try to morph this in many ways. Sotomayor's concurrence is somewhat scary regarding her views of a "reasonable expectation of privacy" applying to matters exposed to the public. The other four justices are equally disturbing--would they require a warrant merely to follow a suspect? Why not require such before even investigating a suspect--after all, a criminal investigation is such a violation of privacy. The majority might cause advocates to re-examine otherwise settled matters of search and seizure law to apply a property analysis. All in all, it looks like more work for lawyers. That can't be good, can it?

I thought the composition of Scalia's majority and Alito's concurrence was interesting as well.

It could be that this is merely the opening salvo in a big debate about the future of search and seizure law. It certainly makes you wonder where Sotomayor and Alito fall in the "original intent" and "living constitution" debate.

[This message was edited by JohnR on 01-23-12 at .]

Well, some might think that the Court's opinion provides some sort of job security for criminal lawyers in the years ahead.

But the fact that EVERY justice, however they got there, held that the action was a search was remarkable.

I admit that I spent a lot of time working as a public defender before being hired by the State of Texas. However, I am surprised that prosecutors are surprised by this ruling. This is not "someone following"; it is a governmental entity putting a tracking device on a car. That's a lot different. I agree with Scalia's opinion--it is closer to having a constable concealing himself in the back of a coach.

And, like I tell lots of other attorneys, I think you have to pick your battles. This, unfortunately, was the wrong one to pick.

You have law enforcement getting a warrant to begin with and then not abiding by the terms of the warrant as to location and time and then coming to the court with a "King's X, we didn't need a warrant" argument.

Sorry, but I think SCOTUS got this one right.

"Surprise" at the result may be overstating things. GPS tracking has been increasingly used in court, so a High Court "test" case was inevitable at some point. Here, the result is clarity in the law--at least on the bottom line--which is something not always obtained from opinions. (I concede that the methods for reaching the result substantially diverge). Also, the unanimity of the court (to the extent there are no dissents) on a search and seizure issue seems very unusual (though I conducted no research to test my statement).

I am intrigued that on SCOTUSblog there is commentary that Alito's concurrence (joined by three others) really did not declare a search had been conducted. Maybe I need more time to reflect on the contents of the decision. Stealing from the legislative updates, I'm going to "give it a ponder."

But with your take on this decision, do you have theory about cell-phone searches that you are willing to share?

[This message was edited by John A. Stride on 01-23-12 at .]

Well, Alito and his group joined the judgment. Therefore, they must have found a search or seizure.

The surprise to me is not the unanimous result. It is disunity in the Court on "core concepts" in search and seizure law. Professors have been teaching search and seizure law solely on the basis of government intrusions on "reasonable expectations of privacy." Now we have the Court split down the middle with one Justice straddling both camps. Cell phones, data in the hands of 3rd parties, cell phone location data, and contents of cell phones all may be in play. Or, perhaps the Court may abdicate its role to Congress. Interestingly, neither side talked about existing State statutes. In Texas, the Legislature had specified a "warrant-light" process based on reasonable suspicion rather than probable cause. CCP Art. 18.21 Sec. 14.

State CCP 18.21 has the reasonable suspicion standard needed for a felony offense in order to obtain an order for a mobile tracking device from a District Judge. Does this federal ruling requiring PC for a SW change this?

Currently in Texas, searching a cell phone incident to arrest if the phone is on the person or within reach has been held lawful. While the Fifth Circuit hasn't yet actually had to applyGant to cell phone searches since the cases they are currently addressing arose pre-Gant, I believe that the Fifth will eventually rule that Gant does apply. However, I will not be surprised if the US Supreme Court tightens the law on cell phone searches and requires a search warrant given the fact that the increased use of smart phone effectively puts a computer on the user's pocket.

Janette A

Love the reference to ancient English cases. I was surprised that the Court upheld the sanctity of property rights, when they wouldn't do the same in eminent domain cases where corporate, not state, interests benefit.

I assert there is no reasonable expectation of privacy in a moving vehicle, or in the exposed underbelly of the same. I say this is not a search.

Our laws provide for a judicially sanctioned, reasonable exercise of police power with the "reasonable suspicion" standard on tracking devices. Unnecessary,in my view, but it's there. Let's face it, you could have a drone track a vehicle for months on end. No one would assert that is a search. Does the attachment of a device really change the outcome?

Let's carry everything to the extreme. Take, for instance, "facial recognition" software? Is the comparison of one's face appearing in a private venue subject to some warrant requirement before you do the comparison? After all, you are trying to "gather information". Ridiculous, I know. But, with the skewed reasoning the Court has been wont to delve in (like in the Crawford line of cases), nothing surprises me.

So there may have been a technical trespass. Would 38.23 of the Code of Criminal Procedure trump 18.21, since there often is a trespass onto private property in the dead of night to attach the damn thing? No, I think not. The Court can authorize the intrusion. So, doesn't our "warrant light" protect a citizen (unnecessarily) enough? Apparently not.

I am just advising going the warrant route until we hear better news. Or buy more drones, or get better satellite technology.

Ugh.........Can't really even think straight.

I'm with JohnR on this in that what I find demoralizing about the opinion is not the ruling itself but rather that this Court has now gotten to the point where they seem more and more comfortable adjusting well-established law to fit the moment while simultaneously claiming "that's what we always said." It bothered me about the Gant-Montejo term and it continues here. I would not be optimistic at all about cell-phone searches going forward.

David, one of the best lessons I learned from one of my favorite law professors, Dean Frank Newton, is that the Supreme Court habitually "revises" the law silently or even while claiming they are not. Whenever they start summarizing prior opinions, go back and look at the actual opinion and you can see it. Rules based upon two facts become rules based upon one, concurring opinions become holdings. And they get to do it because they are Supreme. Stare decisis is so important when the cameras are rolling during confirmation but it is hard to enforce when they are Supreme. I predict we will see future revisions to this case given what amounts to a 5-5 tie.

We may see the Court expound upon some other words in that list of protected things in the future. Although the Court has stayed out of the cell-phone cases so far, I don't believe this decision bodes well for opinions allowing searches incident to arrest of cell phones on the theory they are "just containers."

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Originally posted by CIDSgt:
State CCP 18.21 has the reasonable suspicion standard needed for a felony offense in order to obtain an order for a mobile tracking device from a District Judge. Does this federal ruling requiring PC for a SW change this?
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Yes

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That isn't necessarily an inevitable result. Jones certainly doesn't say that probable cause would be required for installation of a tracking device -- it only holds that such an action is a "search" under the Fourth Amendment. Obviously, there are other "searches" that don't require PC, just reasonable suspicion (probationer's home, public school student, etc). The government certainly argued that before the Court. They just didn't bother to bring it up in a lower court. Pity.

I'm not saying that CCP 18.21 is completely safe. It may indeed be held in a future case that tracking an automobile may require probable cause. But there is an argument to be made that the trespass itself is so minimal, and the information gleaned from that trespass is not particularly private, that a lower standard may suffice.

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Our laws provide for a judicially sanctioned, reasonable exercise of police power with the "reasonable suspicion" standard on tracking devices. Unnecessary,in my view, but it's there. Let's face it, you could have a drone track a vehicle for months on end. No one would assert that is a search. Does the attachment of a device really change the outcome?

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It doesn't change the outcome -- it changes what it is. If that drone is getting information because a policeman has secretly hidden in the backseat (all right, it's a big car) and is relaying info about the car's location every minute, that's pretty much a search. That's the situation here: the government has intefered with private property and gained information as a result of that trespass. The fact that you don't have a "reasonable expectation of privacy" in the undercarriage doesn't really matter (although it would if, for instance, the policeman merely stuck his head under the car to look at the undercarriage; I don't think that would be a search).

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Let's face it, you could have a drone track a vehicle for months on end. No one would assert that is a search.

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Alito and his side seem to assert that: "But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy."

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Originally posted by Jimbeaux:
I'm not saying that CCP 18.21 is completely safe. It may indeed be held in a future case that tracking an automobile may require probable cause. But there is an argument to be made that the trespass itself is so minimal, and the information gleaned from that trespass is not particularly private, that a lower standard may suffice.

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There will be cases already in the pipeline using 18.21 where we can try that idea. I say go cautious--use PC as the standard until we get a case that says otherwise.

A drone tracking a vehicle, assuming there is no officer or device in the vehicle, is just tracking the vehicle. When you are out in public, your reasonable expectation of privacy is GONE. To take the argument that long investigations impinge on your expectations of privacy to me, is specious. No one is forcing you out in the public venue. I drive about 3,000 miles a month in my job. I imagine most DPS troopers and local law enforcement on I35 from the border to Temple know my vehicle (no, not from getting stopped all the time). What if they got an anonymous tip that I was doing something bad - could they not relay information about my whereabouts to people "up the road" during my frequent trips? Let's say it's a corruption case that will take months to make. Is the Court saying they have to get a warrant now to watch me for so long? I get my picture taken twice a week at the border checkpoint. Will sharing that information without a warrant be forbidden?

All I am saying is - if you put yourself out there, you live with what people observe. The "trespass" associated with the attachment of a tracker is minimal, and in Texas, must be judicially authorized. It is a means to an end. It's not like you are tapping into someone's phone and listening to their conversation. Which, if you think about it, someone talking loudly at a phone booth (yeah, some still exist) doesn't have a reasonable expectation of privacy in what he or she says that can be heard by the public, nor does someone on their cell walking down the street. So, if an undercover started shadowing these people and listening in to what they have to say - warrant time?

This is one of those decisions where I can see why a court may be concerned about abusive intrusions, but a less draconian outcome is warranted.

Let's hope it gets refined.

I agree that -- generally speaking -- even long term visual tracking of a car shouldn't constitute a search. (Although, post-Kyllo, one could argue that use of non-publicly-available military-type drones and whatnot might make it violate the Fourth Amendment).

But here, the formula is trespass + tracking (or information) = search. At least in the majority opinion.

Just makes little sense. The opinion(s) are torutured.