MEPIS Community Forum

This perturbs me. Not because of what they did, but because of what they didn't do. ie: get a warrant
It's ridiculously easy nowadays to get a warrant. Why not do so? They evidently had probable cause.

http://www.technolog.msnbc.msn.com/tech ... sr=(direct)%7Cutmccn=(direct)%7Cutmcmd=(none)&__utmv=14933801.%7C8=Earned%20By=msnbc%7Ccover=1%5e12=Landing%20Content=Mixed=1%5e13=Landing%20Hostname=www.nbcnews.com=1%5e30=Visit%20Type%20to%20Content=Earned%20to%20Mixed=1&__utmk=148083383

Ordinarily, I'm a huge fan of the Fourth Amendment and privacy rights. However, I tend to agree that the Fourth Amendment didn't really apply in this case. Searching one's home, possessions or automobile without a warrant is one thing. Obtaining information from a phone company is another. The defendant was driving around while transmitting his whereabouts to the world. The fact he was using a throw-away cell phone is irrelevant -- he was using public airwaves and a public phone service. Moral of the story: If you don't want to broadcast your location to the cops, turn off your cell phone.

And the reason that a search warrant wasn't needed? Sorry, as I look at how easy it is to get a search warrant I wonder at the thinking that it's not needed here. After all he could have been followed around physically if suspected of a crime. They obviously have probable cause. Heck, they can fax a search warrant to a squad car at a traffic stop nowadays.
Why do it this way?

Because the items being searched were not covered by the Fourth Amendment, which is quoted in full here:



The cops weren't searching the person, his house, his papers, or his effects. They obtained cell phone company records of him broadcasting his locations over the the public airwaves. Fourth Amendment does not apply here.

have to say i take issue with the lack of a warrant, too...



unfortunately, the judge's argument he makes doesn't wash. using that as the basis for an argument, one could argue that ANY phone call can be tapped since there are 3d parties involved in the transmission and relay of phone packets...

this warrantless search of gps data is akin to using FISA to spy on Americans...

i strongly suspect this is going to the SCOTUS and will be over turned.

Mobile phones didn't exist when the 4th Amendment was written, and I'd argue that "effects" could take into account future technology and devices associated with a person (ditto for language like "papers" as mobile phones, tablets, computers, etc. serve the same function today).

As that article mentioned, the U.S. Supreme Court has already ruled (in a unanimous decision) that warrantless GPS tracking is a violation of a defendant's constitutional rights.

So, I suspect this court's 2-1 decision will be overturned on appeal.

The freedoms guaranteed under the Bill of Rights are not unlimited, and courts have to determine what those limits are.

For instance, the First Amendment guarantees freedom of speech and the freedom to exercise religion. But slander, fraud, and perjury aren't forms of protected speech, and the freedom to exercise religion doesn't include performing ritualistic human sacrifices.

The Second Amendment guarantees the right of citizens to bear ams, but only a lunatic would think it permits civilians to carry around vials of weaponized anthrax in a shopping mall.

The Third Amendment prohibits soldiers from being quartered in someone's house in peace time without the owner's permission. This amendment pertains to a very specific instance -- quartering of soldiers in peace time, which was common in the colonial era but not today. So the courts have since extended that protection to include the right to privacy in general. The Third Amendment, along with the Fourth, which I quoted previously, are the basis for the protection of privacy under the law.

However, even the right to privacy has limits. Clearly, a policeman isn't permitted to walk up and demand to look in your wallet for no reason. But if a bank robber drops his wallet at the crime scene, a policeman can open it and look at the robber's driver's license for a name and address without obtaining a search warrant. Carrying a wallet in a purse clearly indicates an expectation of privacy. Dropping a wallet on the floor of a bank lobby during holdup probably doesn't carry the same protection.

Likewise, cracking open a cell phone to read the GPS chip requires a warrant. Receiving GPS locations transmitted from the cell phone doesn't.

Dropping a wallet during a bank robbery makes a good case for probable cause. If they have probable cause here in the States they can get a search warrant.

Perhaps it would offend you if the police just used GPS/phones to check on a few blocks worth of peoples phones. After all, they know 'someone' is selling drugs or whatever. Showing someone with an unusual number of visitors would narrow things down. Wouldn't it?

I am not a Constitutional scholar and suspect no one here is, although there may be some in the law profession. I was somewhat with you lucky until the last sentence. I think authorities need more than suspicion to proceed. How about some corroborating evidence. Foot traffic is hardly that. Going down a slippery slope with that criteria.

the sheer amount of case law regarding the 4th ammendment fills tomes, and, as rich points out, is likely something that most of us non-con law types are familiar with.

but, at the root of all this is whether the suspect had a reasonable expectation to privacy - THIS is at the heart of the 4th ammendment. whether it's a telephone, cell phone, or gps every single one of us EXPECT that our conversations, data use, etc. are not being actively monitored - especially realtime GPS monitoring and most certainly when one considers FISA, which PROHBITS the spying on US citizens UNLESS they are suspected of espionage.