31 thoughts on “Warrants? We Don’t Need No Stinkin’… Oh, Wait, We Do

  1. And four of the Justices argue in a separate opinion (led by Alito) that the same standard should be needed for wireless tracking of mobile phones.

  2. A SCOTUS decision that favors the protection of constitutional rights? I’m gonna go play the lottery tonight, because clearly the laws of probability are all wonky today. Whoo hoo!

    Of course, the fact that warrants are handed out like comedy-club passes in Times Square makes the difference mostly academic, but hey, it’s good to see some folks not following the Orwellian playbook as literally as others.

  3. @ Improbable Joe:

    Govt was arguing a) attaching GPS beacon isn’t a “search” and b) people don’t have a reasonable expectation to privacy on public roads. Majority said (a) was wrong, minority said (b) was wrong. And to further complicate things, Justice Sotomayor said that maybe she agrees with (b) as well in some circumstances.

  4. Just when I had lost all faith in our Supreme Court to make good decisions. Well, then. So good decisions are possible. That’s at least a tiny bit encouraging.

    The part that sucks, though: it takes having a drug-lord get away with his crime, at least to some degree, to establish that it really does take a warrant to pull this kind of thing.

    But really… would it have been so hard to get the damn warrant in the first place? It’s not like law enforcement officials don’t seek warrants (and receive them) all the time already…

  5. This is GREAT!
    This is one step in preventing 1984 from becoming more of a reality.
    WHEW

    They are starting to crack down on some of the thermal imaging of houses and using drug dogs to argue for exigent searches.

    sigh

  6. I enjoyed reading Alito’s concurrence; his exploration and explantion of why the decision was essentially correct but flawed because it was based on 18th century law was engaging and much more relevant IMHO. Thanks for posting the link John, this wass the first Supreme Court decision I’ve ever read.

  7. I’ve been following this for a while and find it most interesting that during the arguments the thing that seemed to stress the Judges out the most was the fact that something like this could happen to
    THEM. “What do you mean that you could put a tracker on my car without getting a warrant?” Welcome to the future ladies and gentlemen, it’s a whole new world out there these days…
    And working for a law enforcement agency I agree with Stephen A Watkins that warrants aren’t that hard to get. Just a little time consuming and you have to let people know what it is that you’re looking for in the first place, not just fishing.

  8. –E describes warrants as “handed out like comedy-club passes in Times Square.” That’s not correct, or at best misleading. Warrant applications are generally approved, to be sure. However, every officer knows he needs to establish probable cause to search. That means that where no such showing can be made, the police routinely don’t apply for a warrant. They will investigate further, and try to develop probable cause. And even with that, some warrant applications are denied.

    Regarding the opinions, Alito’s concurrence sets forth the most useful way to think about the Fourth Amendment as technology makes it ever-easier to invade privacy. Scalia’s majority opinion doesn’t seem wrong, as such, but fussy and baroque in its reasoning — you know you’re in for some analytical heavy lifting any time you come across language like “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” Okay. Got it.

    Thanks, John, for linking to the opinion. It is often useful to read the actual opinions written by our Supreme Court, rather than just summaries of them.

  9. “I like the part where it’s unanimous.”

    I did, too. I was hoping the Court would decide this way. I was kind of expecting the Court would decide this way. But I had doubts, especially after the two most recent decisions I cared about were decided properly, but on 5-4 votes.

    Having it go not just the way I wanted it to go, but go that way on a 9-0 vote, was just the cherry on top of the ice cream sundae.

    (I haven’t had a chance to email my “Constitutional Criminal Procedure” professor from last semester and do the happy dance in her In box. She’s probably the only other person I know who would be sympathetic.)

  10. The thing that gets me is that the FBI did actually HAVE a warrant to attach the tracker to his car – one that he didn’t dispute the validity of. However it stipulated that the tracker had to be attached (a) within 10 days, and (b) while the car was within the borders of DC.

    It was eventually attached 11 days later, in Maryland.

    If the FBI had complied with the terms of the warrant they were initially issued, the whole thing would never have got to court.

  11. torture ok. wiretapping the phone company backbone ok. indefinite detention without trial OK. assassination without trial OK.

    Gps logging, NOT ok?

    where has this court been the last decade?

  12. @Greg: where has this court been the last decade?

    When you make a decision like Bush v. Gore, it’s only fair that you get to rest on your laurels for a while.

  13. Logically, this should mean that manually following a vehicle or person in public counts as a search too. Was that part already established, or do we have a future court case to look forward to?

  14. Eddie C called this one. All Supreme Court decisions should be taken as precedent only as to the specific facts of the case, and should be interpreted as narrowly as possible. Without the beacon attached to the car, it is not clear that the same result is reached, and it certainly would not have been unanimous. I do not remember the specific case, but this does not appear much different than the case of seeing someone’s pot farm from a helicopter versus disturbing the premises to catch a glimpse (which is why much of CA marijuana is grown in barns under gro-lites, under canopies of other, taller plants, or even under blinds).

  15. To answer Mike Crichton, the plain sight exception allows law enforcement to perform pretty much any activity that does not involve actual incursion on the physical person or her “penumbra” (personal space). So following someone is fine, but planting a tracer on them is not. The more interesting fact pattern (as I believe someone already pointed out) is whether tracking someone’s phone is an unreasonable search, i.e., one that requires a prior warrant. I suspect that the Court would allow this as long as law enforcement restricts itself to tracking signals that anyone can track. So if you leave your mobile’s GPS in the services mode (that is, allow apps and people to find your phone through its GPS) you have given implicit permission to law enforcement to track you without a warrant.

  16. Do read the decision, if you haven’t already. The concurring opinions offer some insight as to how the protection imparted by this decision may end up being lost.

    A campaign to get some statutory relief to prevent this from happening appears to be in order.

  17. this ruling is irrelevent anyway. law enforcement willl just ramp up their acquisition of drone technology. They’ll be able to track a person’s location from 10,000 feet. no gps thingy, no planting anything on their person.

    ya know what’s kind of funny? funny in a stick an ice pick through my skull sort of way? It always gives me a chuckle when I watch movies from ten or more years ago where out-of-control government people try to trample peoples rights and be stood up to by the good guy. Only now, the things the bad guys were doing? thats standard procedure in todays America.

    Blue Thunder (ariel surveillance)
    Enemy of the State

  18. From the linked article: The government had told the high court that it could even affix GPS devices on the vehicles of all members of the Supreme Court, without a warrant.

    And that, folks, is how to get a unanimous decision against you.

  19. And that, folks, is how to get a unanimous decision against you.

    I’d give the Supremes a little more credit than that, but you’d think arguing before the Supreme Court would be a damn good occasion to resist any urges to be a smart alec.

  20. Erbo: isn’t that almost exactly what the Court was saying (in at least one of the opinions): the Legislature needs to codify these things* so that the Court is asked to look at every conviction based on electronic surveillance.

    * in manner consistent with this decision, and thus, the Constitution, otherwise it will end up back in the Court, where there is now precedent.

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