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Privacy in Public Places: Does GPS Surveillance Provide a Plain View?

Prof. Mark Tunick

GPS Surveillance

Uses of GPS without search warrant To catch serial burglar (State v. Scott, 2006)

To catch murderer who drove to location of buried body (Washington v Jackson, 2003)

To catch drug traffickers (numerous cases from 1999-2007)

Recent Court opinions on GPS Allowed:

US v McIver, 186 F.3d 1119 (1999)—drug case US v Moran, 349 F. Supp. 2d 425 (2005)—drug case US v Jones, 451 F. Supp. 2d 71 (2006)—drug case US v Garcia, 474 F.3d 994 (7th Cir. 2007); cert. denied Oct.

1, 2007—drug case

Exceptions: Oregon v Campbell, 759 P. 2d 1040 (1988)—radio tracking,

burglary case) State of Washington v. Jackson, 76 P.3d. 217 (2003)

(murder case)

Why should we care about privacy? Being followed is invasive (People v. Sullivan

and stalking)

What’s the problem if you don’t know you’re being followed?

Deceivers and rule-violators have a problem

Why should innocent people care?

The “I’ve got nothing to hide” argument

If you aren’t breaking the law, why care if you are followed or searched?

Hypothetical “divining rod” Actual examples: dog sniffs; FLIR searches Innocent people have an interest in privacy

Why is privacy valuable to innocent people? Innocent people have secrets too Without privacy, we will be more restrained Possible abuses of giving government too

much information: consider a DNA database

4th Amendment

“the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”

What counts as an unreasonable search?

The Reasonable Expectation of Privacy (REOP) test of Katz. v. U.S. (1967) A government search is unreasonable if:

(1) a search frustrates a subjective expectation of privacy

(2) and the subjective expectation is one that society regards as objectively reasonable

When is an expectation of privacy objectively reasonable? John smoking crack in public restroom

The plain view principle: If information about ourselves is in plain view or ear shot of anyone engaged in legitimate means of observation, we can’t reasonably expect privacy in that information. Otherwise we can.

Applying the plain view principle: If information about ourselves is in plain view or ear shot of anyone engaged in legitimate means of observation, we can’t reasonably expect privacy in that information. Otherwise we can.

Use of telescopes? Searches of toilet stalls? Cordless phone calls? Quiet conversation in a public place that only a

lip reader could ‘hear’ Searches of garbage?

California v Greenwood (garbage search)Justice White: “[i]t is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. [M]oreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash....”

But is looking through someone’s garbage a “legitimate means of observation”?http://www.ncpc.org/cms/cms-upload/prevent/files/McGruff_60_QT%20broadband%20Str.mov

Following a car?--Knotts

U.S. v. Knotts (1983): police failed with visual surveillance, so they then used a beeper; beeper allowed, as car “could have been observed” by police following the car.

But is it a legitimate means of observation to follow a car?

IS GPS Surveillance a “legitimate” means of observation

Two criteria for whether a means of observation is legitimate:

(1) Is it prevalent? Shetland Islands But: Nazi Germany and Soviet Union

(2) Ought it to be prevalent?

Is GPS use ‘legitimate’? Taxi/bus dispatchers

LoJack/Onstar

Parents tracking their children

Car rental companies? (American Car Rental, Inc. v. Comm. of Consumer Protection, 273 Conn. 296 [2005])

State laws require disclosure (CA, CO, NH, ME, VA)

Conclusion: GPS not legitimately used without consent, unless there is an employer/employee relationship

Is 24x7 dragnet surveillance a “legitimate” means of inquiry? U.S. v. Cuevas-Sanchez (821 F. 2d 248, 5th

Cir.,1987): can’t install video camera atop power pole to record events in backyard

U.S. v. Lace (669 F. 2d 46, 1982, Newman’s concurrence): 24 officers in 8-hour shifts over 3 weeks is a “tremendous invasion”

Intuition: is it legitimate/normal to be followed by a stranger? See map of Knotts case

But how can we expect privacy in public places? Whispering in an uncrowded restaurant

Schulman v. Group W. Productions, Inc. 18 Cal. 4th 200 (1998, tort case) (accident victim can reasonably expect privacy in her conversation with medics at accident scene)

Conclusion

GPS is used to “follow us” over days and weeks (vs. Knotts), and this is more invasive than being spotted in public

Video cameras in public places OK if camera exposes what anyone can see? What if our movements are tracked?