The Down Range Forum
Member Section => Politics & RKBA => Topic started by: Dakotaranger on August 26, 2010, 02:11:11 AM
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http://www.time.com/time/nation/article/0,8599,2013150,00.html
Government agents can sneak onto your property in the middle of the night, put a GPS device on the bottom of your car and keep track of everywhere you go. This doesn't violate your Fourth Amendment rights, because you do not have any reasonable expectation of privacy in your own driveway — and no reasonable expectation that the government isn't tracking your movements.
That is the bizarre — and scary — rule that now applies in California and eight other Western states. The U.S. Court of Appeals for the Ninth Circuit, which covers this vast jurisdiction, recently decided the government can monitor you in this way virtually anytime it wants — with no need for a search warrant. (See a TIME photoessay on Cannabis Culture.)
It is a dangerous decision — one that, as the dissenting judges warned, could turn America into the sort of totalitarian state imagined by George Orwell. It is particularly offensive because the judges added insult to injury with some shocking class bias: the little personal privacy that still exists, the court suggested, should belong mainly to the rich.
This case began in 2007, when Drug Enforcement Administration (DEA) agents decided to monitor Juan Pineda-Moreno, an Oregon resident who they suspected was growing marijuana. They snuck onto his property in the middle of the night and found his Jeep in his driveway, a few feet from his trailer home. Then they attached a GPS tracking device to the vehicle's underside.
After Pineda-Moreno challenged the DEA's actions, a three-judge panel of the Ninth Circuit ruled in January that it was all perfectly legal. More disturbingly, a larger group of judges on the circuit, who were subsequently asked to reconsider the ruling, decided this month to let it stand. (Pineda-Moreno has pleaded guilty conditionally to conspiracy to manufacture marijuana and manufacturing marijuana while appealing the denial of his motion to suppress evidence obtained with the help of GPS.)
In fact, the government violated Pineda-Moreno's privacy rights in two different ways. For starters, the invasion of his driveway was wrong. The courts have long held that people have a reasonable expectation of privacy in their homes and in the "curtilage," a fancy legal term for the area around the home. The government's intrusion on property just a few feet away was clearly in this zone of privacy.
The judges veered into offensiveness when they explained why Pineda-Moreno's driveway was not private. It was open to strangers, they said, such as delivery people and neighborhood children, who could wander across it uninvited. (See the misadventures of the CIA.)
Chief Judge Alex Kozinski, who dissented from this month's decision refusing to reconsider the case, pointed out whose homes are not open to strangers: rich people's. The court's ruling, he said, means that people who protect their homes with electric gates, fences and security booths have a large protected zone of privacy around their homes. People who cannot afford such barriers have to put up with the government sneaking around at night.
Judge Kozinski is a leading conservative, appointed by President Ronald Reagan, but in his dissent he came across as a raging liberal. "There's been much talk about diversity on the bench, but there's one kind of diversity that doesn't exist," he wrote. "No truly poor people are appointed as federal judges, or as state judges for that matter." The judges in the majority, he charged, were guilty of "cultural elitism." (Read about one man's efforts to escape the surveillance state.)
The court went on to make a second terrible decision about privacy: that once a GPS device has been planted, the government is free to use it to track people without getting a warrant. There is a major battle under way in the federal and state courts over this issue, and the stakes are high. After all, if government agents can track people with secretly planted GPS devices virtually anytime they want, without having to go to a court for a warrant, we are one step closer to a classic police state — with technology taking on the role of the KGB or the East German Stasi.
Fortunately, other courts are coming to a different conclusion from the Ninth Circuit's — including the influential U.S. Court of Appeals for the District of Columbia Circuit. That court ruled, also this month, that tracking for an extended period of time with GPS is an invasion of privacy that requires a warrant. The issue is likely to end up in the Supreme Court.
In these highly partisan times, GPS monitoring is a subject that has both conservatives and liberals worried. The U.S. Court of Appeals for the D.C. Circuit's pro-privacy ruling was unanimous — decided by judges appointed by Presidents Ronald Reagan, George W. Bush and Bill Clinton. (Comment on this story.)
Plenty of liberals have objected to this kind of spying, but it is the conservative Chief Judge Kozinski who has done so most passionately. "1984 may have come a bit later than predicted, but it's here at last," he lamented in his dissent. And invoking Orwell's totalitarian dystopia where privacy is essentially nonexistent, he warned: "Some day, soon, we may wake up and find we're living in Oceania."
Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board.
Read more: http://www.time.com/time/nation/article/0,8599,2013150,00.html#ixzz0xh4aTRXL
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Nice post,. Unfortunately, this sort of stuff has gone on for years. I also fear Justice Alito ('I've never said no to a cop") will be the swing vote to uphold this. :-\ What warms this Libertarian's heart is when the true conservatives and the ACLU types agree that the government has overstepped its bounds. This is a happy moment. There is hope for the Republic.
FQ13
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Thank the "War on Drugs".
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Nice post,. Unfortunately, this sort of stuff has gone on for years. I also fear Justice Alito ('I've never said no to a cop") will be the swing vote to uphold this. :-\ What warms this Libertarian's heart is when the true conservatives and the ACLU types agree that the government has overstepped its bounds. This is a happy moment. There is hope for the Republic.
FQ13
I'll admit it does scare me a little when I do agree with the ACLU
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This was upheld by the 9th Circus and they are regularly overturned by sounder minds. This may never see the light of day--but given the current political climate, I wouldn't make book on it. People, our Constitutional form of government, and our Bill of Rights are in great danger. Further, Odamna is making every effort to collapse our economy. It's time to wake up.
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This was upheld by the 9th Circus and they are regularly overturned by sounder minds. This may never see the light of day--but given the current political climate, I wouldn't make book on it. People, our Constitutional form of government, and our Bill of Rights are in great danger. Further, Odamna is making every effort to collapse our economy. It's time to wake up.
Chill Crusader
This is old news. Just like you tell me not to blame W, I'm telling you not to blame BO. I don't particularly like the ruling, but the precedent goes back 27 years. Here are the three main cases on the issue. None are definative, which is why it will hit the Court, but by and large, the courts have been pro-LEO on the issue. It sucks, but it has a lot of history behind it.
FQ13
cites from: http://www.safeguardvideoproductionsllc.com/id78.html
United Sates V. Knotts the Supreme Court considered in 1983 whether a court order is necessary for the installation and monitoring of bird dog tracking device in a public location. One does not need a court order to install or monitor that type of tracking device on a person's vehicle as long as it is located in a public place.
United Sates v. Mclver: The court dismissed a challenge, holding that the use of a tracking device on a vehicle was permissible because the persons did not meaningfully interefere with possessory interest in the vehicle or intrude upon a reasonable expectation of privacy.
State of Washington v. Jackson: In 2002 the appeals courts found that both Knotts and Karo applied to the new GPS technology and that no warrant was necessary because the use of the device "did not impermissibly intrude upon the private affairs" of the defendant. In other words, police violated neither the state constitution nor the U.S. Constitution when they used the device. In 2003 the Washington Supreme Court reviewed the case and held that, due to the more restrictive nature of the state constitution, Police in that state must obtain a court order before using a GPS tracking device.
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What we need is a cheap enough detector to find such devices.
Then you can decide if you want to stomp on it, sell it, or put it on the vehicle of a local politician or long haul semi heading to the far coast.
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What we need is a cheap enough detector to find such devices.
Then you can decide if you want to stomp on it, sell it, or put it on the vehicle of a local politician or long haul semi heading to the far coast.
Aw hell, stick it on the underside of a cop car.
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Aw hell, stick it on the underside of a cop car.
Big Brother would get bored. Titty bar, Krispy Kreme, trailer park/ghetto for domestic disturbance call. Titty bar, Krispy Kreme, trailer park/ghetto....... ;D
FQ13
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Chill Crusader
This is old news. Just like you tell me not to blame W, I'm telling you not to blame BO. I don't particularly like the ruling, but the precedent goes back 27 years. Here are the three main cases on the issue. None are definative, which is why it will hit the Court, but by and large, the courts have been pro-LEO on the issue. It sucks, but it has a lot of history behind it.
FQ13
cites from: http://www.safeguardvideoproductionsllc.com/id78.html
United Sates V. Knotts the Supreme Court considered in 1983 whether a court order is necessary for the installation and monitoring of bird dog tracking device in a public location. One does not need a court order to install or monitor that type of tracking device on a person's vehicle as long as it is located in a public place.
United Sates v. Mclver: The court dismissed a challenge, holding that the use of a tracking device on a vehicle was permissible because the persons did not meaningfully interefere with possessory interest in the vehicle or intrude upon a reasonable expectation of privacy.
State of Washington v. Jackson: In 2002 the appeals courts found that both Knotts and Karo applied to the new GPS technology and that no warrant was necessary because the use of the device "did not impermissibly intrude upon the private affairs" of the defendant. In other words, police violated neither the state constitution nor the U.S. Constitution when they used the device. In 2003 the Washington Supreme Court reviewed the case and held that, due to the more restrictive nature of the state constitution, Police in that state must obtain a court order before using a GPS tracking device.
That is all well and good, but they never even mention that to install the bug they had to trespass.
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That is all well and good, but they never even mention that to install the bug they had to trespass.
That's why it will hit the Court, and why the dissenting judge is right. The test here is a "reasonable expectation of privacy". If you can afford a two car garage, do you have a greater degree of 4A protection than someone who has to park in their apartment buildings parking lot? If so, when did money determine our rights? If not, since when did the cops have to leave a suspect alone since it wouldn't be "fair"? This is what the Court will have to decide.
FQ13
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Privacy on a sliding scale ? Based on finances and Architectural choices ?
That would stink
Write in Tom and TT in 2012
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Privacy on a sliding scale ? Based on finances and Architectural choices ?
That would stink
Write in Tom and TT in 2012
The easy way to avoid that is to say you have to get a warrant, the same as for a wire tap. They're practically a rubber stamp anyway, but the cops always whine about saying "Mother may I" and drag out a parade of horribles to avoid having to explain on paper why they think you are a criminal. Screw'em. You want to put on tracer? Fine, just get a judge to sign off on it.
FQ13
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My theory is to just assume a "hostile" environment,
Think "Moscow rules", although sweeping you house for bugs might be a bit extreme, having your car and grounds done may not be, the greatest spy threat has always been in the form of "Industrial espionage", because not only nations, but other companies get in the game, and technology is where the money is.
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My theory is to just assume a "hostile" environment,
Think "Moscow rules", although sweeping you house for bugs might be a bit extreme, having your car and grounds done may not be, the greatest spy threat has always been in the form of "Industrial espionage", because not only nations, but other companies get in the game, and technology is where the money is.
And you now know why saunas are so popular in Russia. Its not that they like sitting cheek by jowl (I'm almost sorry for putting that image out there :o) with other sweaty naked men. Its just that you know that no one is wearing a wire and the humidity will screw up any bugs. ;D
FQ13 who isn't even a little paranoid about the government. 8)
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The KGB got samples of some high tech metals by wearing soft soled shoes, that picked up chips from the shop floor.
Paranoia is useful. ;D
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That is all well and good, but they never even mention that to install the bug they had to trespass.
That was my thought as well.
Our house is 200 feet back from the road, with a narrow driveway off the road. Can't I expect a certain level of privacy? Or, do I get that from my ar's?
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That was my thought as well.
Our house is 200 feet back from the road, with a narrow driveway off the road. Can't I expect a certain level of privacy? Or, do I get that from my ar's?
It all depends (though I'd trust the latter more than the courts :-\).
Seriously. There are three levels of 4A protection according to the Court.
The strongest is your home.
The second strongest is the "curtillege" (the area aroud your home like a FENCED) back yard. Its not as strongly protected as your home, but at least SOME expectation of privacy may apply (eg, the cops can look over the fence, but not enter, without a warrant).
Finally there are "open fields", land you own and may fence, but at some remove from your home. Here? You basically have almost, but not quite, zero expectation of privacy.
The question for you M58 is if they call that big yard curtillege or an open field. We all know the answer, but something as silly as a three foot high fence might make the difference between a search being upheld or thrown out. Me, I advocate a mean ass dog you aren't particularly attached to. Name him "Lawyer". Let the cops negotiate with him. If he gets shot? Well, you got your money's worth. ;D
FQ13
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That is BS. Your driveway is private property. No warrant then you cannot put devices on peoples vehicles just for suspicion.
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That is BS. Your driveway is private property. No warrant then you cannot put devices on peoples vehicles just for suspicion.
Be that as it may, it is still the way it is. FQ is right and the only reasonable (according to the courts) expectation of privacy is in our own homes. I spend a considerable amount of time telling my wife and kids that the cops are the GOOD guys*, but don't every invite them into our house or car unless I'm there! And no, I'm NOT hiding anything (except maybe dirty dishes in the sink). More like exercising a civil right whenever and wherever I can.
*p.s. My kids don't think the cops are bad and one wants very badly to BE one, which I'm find with. I just want them to KNOW their rights and exercise them.
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Be that as it may, it is still the way it is. FQ is right and the only reasonable (according to the courts) expectation of privacy is in our own homes. I spend a considerable amount of time telling my wife and kids that the cops are the GOOD guys*, but don't every invite them into our house or car unless I'm there! And no, I'm NOT hiding anything (except maybe dirty dishes in the sink). More like exercising a civil right whenever and wherever I can.
*p.s. My kids don't think the cops are bad and one wants very badly to BE one, which I'm find with. I just want them to KNOW their rights and exercise them.
There is much more of a reason than exercising your civil rights.
I read about a woman in Indiana who answered a knock on her door and found a Police Officer who wanted to ask her some questions about and incident that occurred in the neighborhood or about one of the residents of the neighborhood.
She invited him in and they sat at her coffee table while he asked the questions.
She noticed it was time for her medication so she opened her pill box and took her pill.
The Police officer asked to see the original prescription for the drug, which she did not still have.
She was arrested. Indiana has a law that states medication must be kept in the original container or the original prescription must also be in one's possession. The law was most likely to make it easier for Law Enforcement to nab illegal drug users.
She had to appear in court and the judge dismissed the case, but, no doubt, she uncured legal fees, loss of time to attend the hearing and general stress over the situation.
You may be a perfectly honest citizen, but you still might have much to "hide" when laws like these can turn you into a criminal.