tv Public Affairs Event CSPAN November 12, 2011 7:00pm-8:00pm EST
officers actually feared detection in knotts as the car crossed from minnesota to wisconsin. the driver began to do certain you turns and that they lost track of the car for a full hour. they were only able to discover it by having a receiver and a helicopter that detected the beeps from the radio transmitter in the camcorder. >> that is a lot of work to follow a car. you have to follow the beeper, then the helicopter. then they just sit back in a station and pushy but whenever they want to find out where the car is? they find out ever where it has been in the past month? that seems to me dramatically different. >> it was not anything that is not already in public view for those who may want to watch. >> by that rationale, could you put out a beeper surreptitious
late into a man's overcoat? >> probably not, and the reason it is this court specifically distinguished the possibility of following a car on a public roadway from determining publication of an object and a place where a person has a reasonable expectation of privacy. >> this is a special device? >> in that event, there is a serious question about whether the installation of such a device would implicate search or seizure. if not, they did not implicate seizure. >> you may be aware that i have serious reservations about the way in which the speaker was installed. if you could get to that at your convenience. am i like to get to that now.
-- >> i would like to get to that now. when wiretapping first came to this court, it was not a violation of the first amendment. the people said they should be unsecured. wiretapping just pick up conversations. later on, we reversed ourselves. as you manson to, there was new criteria which was invasion of privacy. are you obtaining information that a person had a reasonable expectation to be kept private? i think that is wrong. i don't think that was the original meaning of the fourth amendment. nonetheless, it has been around so long, we will not overrule that. however, ought there is something to at that as
originally listed. and it is something else to use that concept to narrow the fourth amendment. it seems to me that when that device is installed on the car, that is trespass. thereby, rendering the owner of the car not secure in his a fax. the car is one of his a fax. against unreasonable search and seizure. it is against his will, and it is a search because what it obtains it is the location of that car from their forward. why is that not correct? the you deny that it is trespass? >> it may be, but it was equally trespass in united states vs. caro when a can of ether was transferred to somebody that had it ready a transmitter. >> at the time, the owner
consented. that is not this case. there was no consent in this case. in fact, it was done surreptitiously. >> there was no intent of the owner of the can once he had to have a foreign item installed by the government. >> it may be sneaky to do, but every sneaky thing is not trespass. >> this court thought it was technical trespassed, and said it made no difference because the purpose of the fourth amendment is to protect privacy interests, and meaningful interference, not to cover all technical trespass. >> so the privacy rationale does not expand it, but narrows it in some respects? >> a changes it, justice scalia. i think the case that most clearly illustrates that is
oliver obverses the united states. in that case, there was no doubt the police committed local trespass. they entered, they crossed fences, they ignored no trespassing signs. that is distinct from the interests protected by the fourth amendment. >> the rationale of that case was it was not unreasonable. >> the rationale was that there was no search. the rationale was that open fields are not among the things protected by the fourth amendment, and the court was specifically focused on the distinction between trespass law and for the amendment law. >> would there not also be a search if you put a gps device on all of our cars, monitored movements for a month? you think you are entitled to do that under your theory? >> the justices of this court? >> yes. [laughter] >> under our theory in this
case, the justice of this court, when riding on public roadways have no greater expectation. >> so tomorrow you could decide to put a gps device on every one of our cars, following four months, no problem with the constitution. >> equally, they could follow an individual's movements as they went around on the public streets. >> that seems to me to get to what is really involved, the issue of whether a various technical trespass, potentially grounds for deciding this case. it seems to me the heart of the problem as presented by this case and other cases involving new technology is that before the computer and internet, much of the privacy, most of the privacy people enjoyed was not the result of legal protections or constitutional protections, it was a result of the difficulty of traveling and
gathering information. but with computers, it is so simple to amass an enormous amount of information about people that consists about things that could have been observed, information made available to the public. if this case is technical trespass, i have no doubt in the future, may be possible now, for law enforcement to monitor people's movements on public streets without being technical trespass. how do we deal with this? do we say that nothing has changed, so all the information of people exposed to the public is fair game? there is no search or seizure when that is obtained because there is not reasonable expectation of privacy? is there not a real change in this regard? a i don't think there is particularly dramatic change from this case in those cases.
it is possible to envision broader advances to be had massed -- to be amassed, but i think the remedy for that, if this court agrees with the principle and applies them to this case, the remedy is through legislation, just as when the court held that amassing registry data, all of the numbers that you dial the telephone, the life and times of the call, the court was confronted in that case with the view in dissent. >> here, it is the police, essentially answering the question, the government's position would mean that any of us could be monitored whenever
we leave our homes. so that the only thing secure is the home. that is the end point of your argument. anything in the house is ok? >> we're talking about monitoring somebody's movements and public's, not monitoring their telephone calls, the interior of their car, a private letters, or packages. there are enclaves of fourth amendment protection. >> the question, as i understand it, is that if you win this case, then there is nothing to. -- there is nothing to prevent the police or government monitoring 24 hours per day public movement of every citizen of the united states. and the difference between monitoring and what happened in the past is memories are
fallible, computers or not. nobody, at least very rarely, consents for human beings to be followed 24 hours per day. that occasionally happens. but with machines, you can. so if you win, he said only produce what sounds like "1984." might be dramatized, but it sounds like it. so what protection is there, if any, once we accept your view of the case from this slight futuristic scenario? >> this is exactly the argument presented to the court in knott. the beeper technology in 1983 seemed extraordinarily advanced and was potential for it to be used. >> that is true, and they do
have a limit. in this case, they say it involves a simple journey. the fact, it involved for journeys, and say it was in today's. this involves every journey for a month. they say whatever the line is that will protect us, 80 short of every journey in a month. -- it is short of every journey in a month. i accept that. what did you say is the limit? >> i want to address the suggestion that he could draw a line somewhere between a month and a trip and have a workable standards for police officers to use. police officers used a variety of techniques which in aggregate produce an enormous amount of information. trash pulls, financial records, visual surveillance. under the principle of law that says one trip is 30 trips is not, ther no guidance.
>> there is the same kind of guidance that you have in any case of this court that uses the technique that is used sometimes. i think it is used in the bribing the judge case, campaign contributions. you cannot go beyond that. we know that is the standard, we leave it for the lower court to work out, and we reviewed overtime. that is not necessarily desirable, but that is a method that is sometimes used. but even if it is wrong, i want to know, are you saying there is no limit, or are you suggesting one? >> this case does not involve 24-hour surveillance. it involves following one suspected drug dealer after whom there was very strong suspicion for a time that actually is less than a month because the beeper technology failed. >> you are moving away from your argument.
your argument says it does not depend on how much suspicion you have or how urgent it is. your argument is that you could do it, period, no reason, not limited in any way, not right? >> that is correct. >> isn't the normal way that we draw limits, how intrusive it can be, how long can be is by having the magistrate spelling out a warrant? >> when you are talking about the movements of a car, which could be monitored for a day or perhaps four days, there is no fourth amendment search. >> we're talking about the difference between a little tile and a mosaic. one gives information, the other does not. >> sodas and telephone registry, a garbage poll, looking at a i search. >> this case started with a warrant.
there was a warrant, and the limits were not followed. you do this in 10 days. this was 11. it was supposed to do it in d.c., instead it was maryland. they could have gotten permission. i take it that the practice had been in the electronic surveillance manual, better get a warrant. was there any problem about, well, this kind of surveillance -- or they encountering difficulties getting a warrant? >> in this case, they would not have had difficulty getting a warrant. it went beyond monitoring the car. it was entering the car, to install at, which was not necessary. it also was monitoring the car and and the location where there was a reasonable expectation of privacy.
this is only about monitoring a car on public streets. it is important keep in mind the principal use of this kind of surveillance is when the police have not yet acquired a probable cause, but have a situation that calls for monitoring. if the police get an anonymous phone call that a bomb threat is on to be carried out at a mosque, the bomb threat on an anonymous call will not provide credible suspicion. you can hardly expect the fbi to ignore a credible, detailed- sounding piece of information like that. >> if they got an anonymous tip that there was the same baumann somebody's house, do you get a warrant or just go in? >> you do need there. without probable cause, you cannot enter. >> what are you asking for a different role in this situation? >> the police in this situation
have the traditional means of investigation available. they could put teams of agents on all of the individuals within the pool of suspicion and follow them 24/7. >> your now suggesting to, an answer to justice kennedy's question, which would be it would be ok too. this computer chip on somebody's overcoat -- to take this computer chip on somebody's overcoat and follow every citizen in definitely. under your theory, and the theory espoused in your brief, you could monitor and track every person threw their cell phone. because today, the smart phone and it signals that the police can pick up and used to follow somebody anywhere they go. your theory is somewhat as the person, that what you are monitoring is the movement of a
person, they have no reasonable expectation that their possessions will not be used by you. that is really the bottom line. to invade their sense of integrity in their choices about who they want to see or use their things. >> think that goes considerably further than our position. our position is not the court should overrule the case and permit monitoring within a private residence. that is off limits, absent warrant or exigent circumstances and probable cause. monitoring an individual through their clothing poses an extremely high likelihood they will add to replace " were the have reasonable expectation of privacy. >> it happens here. >> a car parked in a garage does not have a reasonable expectation of privacy.
at that many that does a person. they go into a home in their coat gets hung on a hanger. >> once the effect is in the house, there is an expectation of privacy that cannot be breached without warrant. we're not asking the court to overrule. >> tell me the difference between this and a general warrant. the general warrant, for the amendment historically, was the disapproval, the outrage our founding fathers experienced with general warrants that permitted the police indiscriminately to investigate this on a basis of suspicion, not probable cause, and to invade every possession and individual had in search of a crime. how is this different? there is no probable cause.
>> a warrant authorizes a search. this authorizes the movement on a public roadway, which this court said no individual hadera a reasonable expectation of privacy. but they go out and their car, their car is traveling on public roads, anybody can look. the police have no obligation to avert their eyes from anything. >> i give you that it is in public. does the reasonable expectation of privacy trump that fact? in other words, we think it violates the right of privacy to have this information acquired? but is it a response that takes place in public, or is it reasonable expectation of privacy regardless of the fact that it takes place in public? >> something that takes place in public is not off limits.
that is essentially the holding of conversations in a phone booth. this court, with full awareness of that, recognized that surveillance of a vehicle traveling on a public roadway -- >> 30 years ago, if you asked people, does it violate privacy to be followed by a beeper, you may get one answer. today, if you asked people, to know that people could have a rescue -- record of every movement made in the past month, they might see that differently. >> they would probably also feel differently about being followed 24/7 by a team of fbi agents. gps only gives the approximately patient of a car that drives on the road. >> and speed as well. >> the approximate speed,
publication of travel, that is what the gps provides. it does not show where the car stopped. it does not show who was driving the car. >> you could have somebody pick up for speeding when you suspect something worse. >> this court held when the police have probable cause to stop somebody for traffic violations, they can. >> that is when the police came upon the violator. but this is all in a computer. the police and say, we want to find out more about something, so consult the data base, see if there's an indication that he was ever speaking in the last 28 days. >> justice ginsberg, it is not very hard for the police to follow somebody to find a traffic violation of the want to do that. but to answer the earlier concerned about limiting
principles, this court recognized that although the fourth amendment is not a restriction on discriminatory or arbitrary or oppressive stops that based on it invidious characteristics, the equal paillette chechen cause -- the equal protection clauses. there are other constitutional principles that are available. >> the fourth amendment protections against unreasonable searches and seizures. i was trying to explain to somebody, the fourth amendment says that if i am on a public bus and the police want to steal my luggage, that is a violation, that this kind of monitoring, installing the gps,
monitoring the person's movements, outside the house, in the car, is not? there were something about it that just does not parse. >> i am quite sure that if you asked citizens whether the police could freely picked up their trash and paw through it, looking for evidence of a crime or keep a record of every telephone call they made for the duration, the number that went through, conducting visual surveillance of them, citizens would probably also find that to be against what they would want. >> but they won't and probably could not physically. start with the other brand. what would a democratic society look like but a large number of people did things that they were moving over a longer period of time. once you reject that, you have to have a reason under the
fourth amendment and a principal. what i am looking for is the reason and the principle that would reject that. it would be rejected 24 hours a day, 28 days. >> two things on that, i think the line drawing problems that the court would create for itself would be intolerable, and better that the court should address the so-called 1984 scenarios they came to pass, rather than using this to do so. second -- >> if they stop the vehicle. is the gps technology today is limited by only the cost of the instrument, which frankly right now is so small that it would not take that much of a budget, local budget, to place a gps on every car in the nation. almost every car has it now. >> i think it would be virtually
impossible to use the kinds of tracking devices used in this case. ithe legislature is a safeguard. if the court believe there needs to be a fourth man then that safeguard as well, we have urged the court about a reasonable suspicion standard, which would allow the police to conduct surveillance of individuals, and their movements on public roadways, which they could do visually in any event. and it would allow the police to investigate leads and tips that arrives under separate circumstances where there is not probable cause. in most reasonable suspicion cases, it is the police and the court at the back end. if there are motions to suppress evidence. fundamentally, just as and the examples. if this court concluded
consistent with its earlier cases this is not a search, that all americans find it to be an omen of 1984, congress could stand ready to provide appropriate protection. >> thank you, our questions have eaten into your rebuttal. >> thank you, i want to talk about the issue of the united states did not talk about. which was this is a seizure. this case can be resolved in a very narrow basis. what are the consequences when the police, without a warrant and scully gps secretly on a car of any citizen in the united states, evidence game that way. our position is that as a seizure. >> what is the size of this device? >> record does not show, but we have learned there is now a gps
on the market that is the size of a credit card. think how easy that would be to stick on anybody's car. >> what if it was on a license plate? would that be technical trespass? >> a license plate is the property of the state, and driving is a privilege. it is not technical trespass. >> i don't own my license plate? how do you know that? get into it,eed to but live free or die. >> what i am saying is the issue, insofar as the seizure is concerned, is it meaningful? everybody agrees that they have the right to control the use of his vehicle.
the question is, but the to parents in a meaningful deprivation of the vehicle? >> what is your position on the placement of gps device? >> they cannot do it. it that it is the state's license plate that would require you to have. your trespass theory would seem that falls apart with respect to that particular scenario. justice roberts: no. it's the size of a credit card. you slip it behind the license plate. mr. leckar: in that particular case, what you have done is you have -- the installation of the gps, it is a seizure. what makes it meaningful is the use of that gps. justice scalia: well, this is ridiculous. look at -- you give the state permission to put the license plate -- to carry -- to have your car carry the state's license plate.
you do not give anybody permission to have your car carry a tracking device. mr. leckar: that's correct. justice scalia: and whether it's put directly on the car or directly on something that thecar is carrying doesn't seem to me to make any difference. chief justice roberts: i thought it made a difference under your theory, which focused on the question of trespass, because it was attached to an effect owned by somebody else. this is an effect not owned by the individual. mr. leckar: that's correct. chief justice roberts: so the trespass theory anyway doesn't seem ridiculous to me. mr. leckar: but it's an effect, your honor. the fourth amendment protects effects, it protects people. if you put it on somebody's briefcase, you put it on somebody's car, you have affected their possessory interest. then the question becomes -- justice kagan: mr. leckar, i guess i'm not sure i quite understand the argument, because a trespass is accomplished no matter what you put on somebody's car or somebody's overcoat or what have you. you could put a nonworking device on somebody's car and it would still be a trespass. but surely the same constitutional problem is not raised. so how do you get from the trespass to the constitutional
problem. mr. leckar: as i -- thank you, justice kagan. as i said moments ago, what makes it meaningful, what makes it a meaningful deprivation of a possessory interest, is once the gps gets activated. we look at reality. we follow what silverman v -- justice scalia: so it doesn't make it a seizure. that doesn't make it a seizure. it makes it a search. mr. leckar: your honor --justice scalia: i mean, you can say that there is a trespass for the purpose of obtaining information, which makes it a search. but i don't see how it's a seizure. a seizure, you have to bring something within your control. you have to stop the person or stop the vehicle. what has been seized when you -- when you slap a tracking device on a car? mr. leckar: what has been seized is antoine's -- data. data is seized that is created by the gps. antoine jones has the right, your honor, to control the use of his vehicle. and what the government did was surreptitiously deprive him of the use of that justice scalia: do you have any case involving seizure of -- of data floating in the air as opposed to papers? mr. leckar: the closest case i
could come, your honor, would be silverman, where the court called a fourth amendment violation where the spike mike just touched -- touched the ventilator unit. justice breyer: it's not a violation unless, in addition to a search, it is an unreasonable search. and since you already -- and the same is true of seizure, isn't it? mr. leckar: that's right. justice breyer: so you already have everybody agrees it's at least a search. so what do you care whether the -- and there is a case called karo which says whether it's a trespass doesn't really matter. the question is the reasonableness of it. and that's what i think -- i mean you can argue trespass as much as you want, but i'll still have in mind is it reasonable. mr. leckar: that's right. justice breyer: and i think that's the question we've been debating. and i would like to know from you -- what they are saying is that the parade of horribles we can worry with -- worry about when it comes up, the police have many, many people that they suspect of all kinds of things ranging from kidnappings of lost children to terrorism to all kinds of crimes. they're willing to go as far as reasonable suspicion in a pinch. and they say at least with thatyou will avoid the scenario
and you will in fact allow the police to do their work with doing no more than subjecting the person to really good knowledge of where he is going on the open highway. they probably put it better than i did, but i'd appreciate your views on that. mr. leckar: reasonable suspicion, justice breyer, is something that the court has adopted for limited intrusions. and i refer you to the united states v. place. every seconds of the day for days is by no person's lights a limited intrusion. that said, what happened -- what happened here -- society does not view as reasonable the concept that the united states government has the right to take a device that enables them to engage in pervasive, limitless, cost--free -- cost--free surveillance, that completely replaces the human equation -- chief justice roberts: how do you know that? justice kennedy: why does it have to be cost--free.
suppose the police department says: we've got two things. we can put deputies on this route and watch this person or we can have a device with a warrant. what difference does it make? mr. leckar: what happens is the police havethe capacity with gps to engage in grave abuse, grave abuse of individual and group liberties, your honor. justice kennedy: but suppose what they got is nothing more than what they would have had if they had deputies staked out along the route. that's all. they'd get the same from deputies. a constitutional violation? mr. leckar: yes, if they use a gps, your honor. any placement of a gps on anybody's car --justice kennedy: well, no. we are assuming that there is no initial trespass, which is a problem in this case. you're saying it's -- it's the quantity and -- of the information seized and the time over which it's seized. and that's the proposition we are testing. and it seems to me what you're saying is that the police have to use the most inefficient methods.
mr. leckar: no, your honor. i'm not asking --justice kennedy: i'm fully aware of the ministry of love, ministry of -- of peace problem. "1984." but this -- your argument it seems to me has no principled distinction from the case that i put. mr. leckar: i think i can help you with that. we are not asking to make the police less efficient than they were before gps came into effect. we are simply saying that the use of a gps has grave potential, grave threats of abuse to privacy; that people have an expectation, justice kennedy, that their neighbor is not going to use their car to track them. people have an -- under rakas -- i refer the court to footnote in the rakas case. antoine jones had control of that car. control of that -- of the
vehicle meant that he had a reasonable expectation that society is prepared to view as objectively reasonable. the government --justice ginsburg: but he wouldn't -- he wouldn't be protected against a surveillance camera that could get information, and is this really different in kind from the surveillance camera? mr. leckar: yes. first of all, you have a physical invasion. that's bond v. united states. you have an invasion of his possessory interest, placement on the car. physical invasion of a possessory interest, justice ginsburg, is more significant, has always been viewed by this court as more invasive than mere video --mere visual surveillance. and even with a camera, it depends on the type of the video camera. we are not saying that the police are prohibited from having individual video cameras or several video cameras to surveil people. what we are saying here is this device, this device that enables limitless, pervasive, indiscriminate --justice kagan: what is the difference really? i'm told -- maybe this is wrong, but i'm told that if somebody goes to london, almost
every place that person goes there is a camera taking pictures, so that the police can put together snapshots of where everybody is all the time. so why is this different from that. mr. leckar: it's pretty scary. i wouldn't want to live in london under those circumstances. justice scalia: well, it must be unconstitutional if it's scary. (laughter.) justice scalia: i mean, what is it, the scary provision of what article? justice breyer: and in fact, those cameras in london actually enabled them, if you watched them, i got the impression, to track the bomber who was going to blow up the airport in glasgow and to stop him before he did. so there are many people who will say that that kind of surveillance is worthwhile, and there are others like you who will say, no, that's a bad thing. but that isn't the issue exactly in front of us. mr. leckar: that's correct, your honor. what we have here is a physical -- justice breyer: and what justice kagan wanted to know is why not. mr. leckar: because you have a physical invasion of property. justice breyer: oh, my goodness. sorry, i just had that expression because i'm reading.
"the existence of a physical trespass is only marginally relevant to the question of whether the fourth amendment has been violated, however, for an actual trespass is neither necessary nor sufficient to establish a constitutional violation." that's karo. so you can talk if you'd like. it's your hour. but i would really be very interested in hearing you on the assumption that the real issue here is whether this is reasonable. mr. leckar: it's not, your honor. this is not a karo case. first of all, in karo the installation was essentially consented to. you took -- the package came in by virtue of somebody who was working for the government. so the installation was not unlike this case -- was unlike this case, where it was surreptitious and directly engaged in by a government agent. justice kennedy: but you're -- you're mixing, you're mixing two things. you're the one -- i thought your position was that the initial trespass is not important. that's the narrow way to decide the issue. you don't want us to do that.
so now we ask you about karo and you say: oh, well, there was a trespass. so that's -- that's not -- that's not a responsive answer. mr. leckar: well, but technology, as you observed, justice kennedy, is dramatically different with gps than was present in karo. justice sotomayor: but it's going to be dramatically different in the next step. there are now satellites that look down and can hone in on your home on a block and in a neighborhood. i don't see that far in the future when those cameras are going to be able to show you the entire world and let you track somebody on the camera from place to place. mr. leckar: well --justice sotomayor: so if -- give us a theory. is that okay for the police to access those cameras and look at you moving from place to place? and if that's okay, then why is this not okay? what is your theory of your case? mr. leckar: our theory, justice sotomayor, with respect to video camera, if they are targeting an individual, this presents a gray question. it's a question that need not
be resolved given this case. but if the court wanted to address that question, once the police target somebody, they want to engage in individualized targeting for use of a pervasive network of cameras -- and gps is like a million cameras. that's -- the new york court of appeals pointed that out, and this --justice sotomayor: i think there are about satellites up there. mr. leckar: all right. it's cameras, but the equivalent of a camera tracking you every street corner you're on everywhere. once you have individualized suspicion like that, if the court wanted to deal with it, i believe you would have to have a warrant. justice scalia: mr. leckar, your -- all of this discussion, you're going into it, but the questioning leads you into it, it seems to me leaps over the difficult part of your case. the issue before us is not -- not in the abstract whether this police conduct is unreasonable. the unreasonableness requirement or the unreasonableness prohibition does not take effect unless there has been a search. and our cases have said that
there is no search when -- when you are in public and where everything that you do is open to -- to the view of people. that's the hard question in the case, not whether this is unreasonable. that's not what the fourth amendment says, the police can't do anything that's unreasonable. they can do a lot of stuff that's unreasonable without violating the fourth amendment and that -- the protection against that is the legislature. but you have to establish, if you're going to go with katz, that there has been an invasion of, of privacy when all that -- all that this is showing is where the car is going on the public streets, where the police could have had round--the-- clock surveillance on this individual for a whole month or for months or for months, and that would not have violated anything, would it? mr. leckar: no. justice scalia: why? because there is no invasion of privacy. so why is this an invasion of privacy? mr. leckar: because it is -- it is a complete robotic substitute. it's not a -- it's not a tail.
and interestingly enough, your honor. the government only cited in its brief one instance of a -- hour surveillance for all of days. what you have here, justice scalia, is -- i'm going to refer to your dissent. justice scalia: times zero equals zero. if -- if there is no invasion of privacy for day, there is no invasion of privacy for hundred days. now, it may be unreasonable police conduct, and we can handle that with laws. but if there is no invasion of privacy, no matter how many days you do it, there is no invasion of privacy. mr. leckar: justice scalia, what -- i'm going to refer to your dissent along with justice breyer in bond v. united states. a gps in your car is, or anybody's car, is like -- without a warrant, is like having an -- it makes you unable to get rid of an uninvited stranger. that's what it is. now what --justice scalia: so is a tail. so is a tail when the police surveil -- surveil you for, for a month. mr. leckar: the question we have to answer in this case, justice scalia, is this. a tail -- if they can -- if they want to tail, if they want to commit the resources, that's
fine. but what a gps does, it involves -- it allows the government to engage in unlimited surveillance through a machine, through a machine robotically. nobody is even involved monitoring it. the record in this case showed that many times the police officers just let -- let the machine go on. justice alito: well, where would you draw the line? suppose that the gps was used only to track somebody's movements for one day or for hours or for hours. would that be all right? mr. leckar: our position, justice alito, is, no circumstances should a gps be allowed to be put on somebody's car. but we recognize --justice alito: put aside -- put aside the trespass question. mr. leckar: i'm not addressing it purely as a trespass. our view is the gp -- the use of a gps as a search in and of itself should be, is -- should be viewed as unreasonable. but if the court were uncomfortable with that, if the court had concerns with that, we suggested in our brief some possibilities: one day; one trip; one person per day or a trip; or perhaps when you use it exactly as a beeper, when you follow it, when you
actually physically follow it. justice alito: well, that sounds like a legislative line. but what is the difference between following somebody for hours, let's say, and monitoring their movements on a gps for hours? you would say that the latter -- your first argument is, there is a problem with the latter but not with the former. but what would the reason for that be? mr. leckar: because it's an unreasonable invasion of privacy, your honor. justice alito: what -- what is the difference in terms of one's privacy whether you're followed by a police officer for hours and you don't see the officer or whether you're monitored by gps for hours? mr. leckar: because -- because what you have here is society does not expect that the police, the human element would be taken out of -- would be taken out of the surveillance factor. justice alito: you know, i don't know what society expects and i think it's changing. technology is changing people's expectations of privacy. suppose we look forward years, and maybe years from now percent of the population will be using social networking sites and they will have on average friends and they will have allowed their friends to monitor
their location hours a day, days a year, through the use of their cell phones. then -- what would the expectation of privacy be then? mr. leckar: well, the use of a cell phone, there are two ways of looking at it. as justice kennedy observed in quon, cell phones are becoming so ubiquitous, there may be privacy interests. our view is that currently the use of a cell phone, that's a voluntary act. people nowadays understand that there are ways to monitor by way of a cell phone. but i started my oral argument with this basic precept, justice alito. this case does not require us to decide those issues of emerging technology. it's a simple case at the core: should the police be allowed surreptitiously to put these machines on people's cars and either -- call it a seizure, call it a search, call it a search and seizure, in the words of katz, or call it a fourth amendment violation. justice alito: well, that -- maybe that's a good way to decide the case. but i just wonder, would mr. jones or anybody else be really upset if they found that the police had sneaked up to their
car and put an inert device the size of their credit card on the underside of the car? what would they say about that, other than the fact that the police are wasting money doing this? mr. leckar: if it were nothing more than a note, say, or even a bumper sticker like you get at south of the border, probably nothing. justice alito: you don't even see it. it's just a little wafer, they put it under the car, it does nothing. mr. leckar: it's a little wafer that's got an enormous capacity. justice alito: but this one does nothing, and you -- so you would go -- you would sue -- you would bring a trespass action. mr. leckar: no, heavens, no, your honor. if it did nothing, first, it wouldn't be a fourth amendment problem. justice alito: so what's you're concerned about is not this little thing that's put on your car. it's not this invasion of your property interest. it's the monitoring that takes place. mr. leckar: the monitoring makes it meaningful. putting it on enables them to --justice kagan: but to ask justice alito's question in a different way, suppose that the police could do this without ever committing the trespass. suppose that in the future all cars are going to have gps tracking systems and the police
could essentially hack into such a system without committing the trespass. would the constitutional issue we face be any different? mr. leckar: as i assume, that's because of manufacturers doing it, or because congress has legislated it, justice kagan? under either circumstance, people would know. they would know that their privacy rights have been taken away. whether that would be possible to go through congress, i seriously doubt, but people would know. in this particular case, antoine jones had no idea whatsoever that his possessory interest in that property was about to be deprived by the government in a meaningful way to allow them to get information they couldn't have otherwise have gotten. justice alito, what happens here, gps produces unique data. when you and i drive down the street, we don't emit gps data. what makes gps data meaningful is the act -- is the use and placement of the gps device, that was in this case, in this case, unconsented to by antoine jones unknowingly. and the government knew that.
that's why they went and did it surreptitiously, because they couldn't get it any other way. justice kennedy: lots of communities have, including washington, cameras on -- at intersections on stop lights. suppose the police suspected someone of criminal activity and they had a computer capacity to take pictures of all the intersections that he drove through at different times of day, and they checked his movements and his routes for days. would that be lawful? mr. leckar: i think that would be allowable, your honor. i don't think --justice kennedy: you think it would be? mr. leckar: i think that would be permissible, your honor. first of all, you don't have an invasion of -- you don't have a physical intrusion, unlike this case. people nowadays --justice kennedy: you have -- you have a targeted invasion. it's over a period of time. it's over a long -- it's over a wide space, and it seems to me that -- it seems to me that you have to answer my question yes to be consistent with what you've said earlier. mr. leckar: no, your honor. as i said earlier, that you can have an -- you can have an occasional video camera out there.
people understand nowadays that there may be video cameras out in public space. the -- but we don't have any -- society does not expect or view it as reasonable to have the equivalent of a million video cameras following you everywhere you go. a few video cameras, people know. they've cropped -- they've cropped up and they have been accepted. but this is a horse of an entirely different color. this is a small device that enables the government to get information of a vast amount of -- justice sotomayor: what a --mr. leckar: the camera is one site --one --justice sotomayor: what an unworkable rule with no -- tethered to no principle. mr. leckar: i'm sorry? justice sotomayor: what an unworkable rule tethered to no principle. a thousand video cameras may or may not be okay, depending on how large the city is? mr. leckar: no, justice sotomayor. i think the workable rule and the simplest rule that should be adopted is this. i think the court should say to the law enforcement agency: you came here looking for a rule; we are going to give you a rule. if you want to use gps devices, get a warrant, absent exigent circumstances or another recognized exception to the
fourth amendment, because of their capacity for -- to collect data that you couldn't realistically get; because of the vanishingly low cost, because of their pervasive nature, that you should get a warrant any time -- you must get a warrant any time you're going to attach a gps to a citizen's effect or to a citizen's person. chief justice roberts: well, that gets back to justice scalia's question, which is you've got to determine that there has been a search first before you impose the warrant requirement. and it seems to me that your -- the warrant requirement applies only with respect to searches, right? mr. leckar: that's -- and seizures. chief justice roberts: okay. and seizures. so while it might seem like a good idea to impose the requirement on this particular technological device, you still have to establish that it's a search. mr. leckar: but if you know, if you the police agents know -- this is the deliberative process. these devices aren't used for just quick one--off surveillance. they are used to track people over time, as witness this case, every seconds of the day for days.
if you know you're going to do that and you know, justice roberts that this device -- this device has an amazingly invasive power and capacity. if you know you're going to do that and you're a law enforcement agent, then you do what they did originally. you get a warrant. chief justice roberts: now we pushed your -- we pushed your friend to the limits of his theory. your theory i take it would apply if you're going to do it for minutes, right? where is the car? you push a button; it's minutes; you say that's still a fourth amendment violation? mr. leckar: yes. chief justice roberts: don't talk about how long they are going to be doing it, or all the information. we have to test the validity on the theory of your proposition that it violates the fourth amendment to do this for minutes. mr. leckar: i -- i think it does, your honor, because of the -- society does not expect --society views it as objectively reasonable not to expect --chief justice roberts: you said that several times. how do we tell? i mean, i don't know what society expects. i suppose if you ask people do you think it's a violation of privacy for the police to do this for no reason for a month, maybe they would come out one way. if you asked the people do you
think the police have to have probable cause before they monitor for minutes the movements of somebody they think is going to set off a huge bomb, maybe you get a different answer. mr. leckar: you look to -- you look to the common law. you look to well established case law. you look to statutes in several jurisdictions; i think there are seven or eight that said this sort of practice should be prohibited. justice scalia: excellent. yes. of course a legislature can take care of this, whether or not there is an invasion of privacy. and they can pick days the of the air. you can't do it for any more than days, or you can't do it to more than -- than people at a time. they can take care of all of that stuff. we can't do that in a decision under the --under the fourth amendment. mr. leckar: we have --justice scalia: why isn't this precisely the kind of a problem that you should rely upon legislatures to take care of? mr. leckar: that's the same -- that's the same -- same problem that the united states advanced before this court in the united states v. district court; give it to congress. and what this court there did, it held a fourth amendment
violation so far as domestic security is concerned and gave congress suggestions. in this particular case i could probably give you reasons why not to go to congress --( laughter.) mr. leckar: -- but let me suggest something, justice scalia. what happened was the united states has adopted a shifting position. they came to this court and they said we want a workable rule; give us a workable rule. you either overrule the d.c. circuit, which you should not do, or give us a workable rule. now they have said in their brief oh, let's take it to the legislature. they can't have it both ways. justice breyer: can you take it to congress the other way? i mean, can you say that a general search of this kind is not constitutional under the fourth amendment, but should congress pick out a subset thereof, say the -- terrorism or where there is reasonable cause or like the fisa court or special courts to issue special kinds of warrants, that that's a different question which we could decide at a later time? that's a negative way of -- i
mean that way favors you in the result, but i've -- i've been looking for if there is a way of going to congress to create the situations where they can do it, rather than the situations where they can't. mr. leckar: justice breyer, that was exactly what congress, what happened when the foreign intelligence surveillance courts were created. you hit it right on the nail. all this court has to do is decide the narrow question before it, which i've articulated several times. justice scalia: i don't see why it's any of congress's business if it's a -- if it's a purely intrastate operation. congress can control police practices that don't violate the fourth amendment throughout the country. i mean, maybe interstate, interstate beepers and interstate tracking devices, yes, but so long as you track within -- within the state isn't that okay? mr. leckar: no, your honor. first of all, let me refer to chief -- to justice frankfurter's comments a long time ago in watts v. indiana: justices are not ignorant of the law, what they know to be true as men and women, but other legislatures will follow
congress. but what we have here -- what we have here is a live case of controversy in which antoine jones' control of his vehicle and his car was converted into an electronic gps electronic transceiver serving the government. so that case is here and it -- it needs to be decided. one doesn't need to address technologies that aren't here before the court today. you could; we could venture down that road. we could discuss drone surveillance, we could discuss balloon surveillance and other types of surveillance, but we don't have to. it's a narrow --justice alito: there was a warrant -- there was a warrant in this case. this is a puzzling aspect of the case to me and maybe there -- it's irrelevant for present purposes. there was a warrant and the two violations of are violations of a statute and a rule, neither of which may carry an
exclusionary rule sanction with them or exclusionary rule penalty with them. it's not clear at all that there as a violation of the fourth amendment. so it's a little strange that we are deciding whether a warrantless search here would have been unconstitutional, when there was a warrant. mr. leckar: they had the choice. they could have easily -- they could have gone back to the district judge and said -- given the district judge -- justice alito: no, that's not my point. the point is that the violation of the --day rule and the violation of the statutory prohibition on -- or maybe it's in the rule, the prohibition on the judge in the district the installation only in the district are not fourth amendment requirements. mr. leckar: no. that's correct, your honor, but what we have -- what we have here is a warrantless intrusion. when -- when the warrant -- justice alito: not a warrantless intrusion, there was a warrant. mr. leckar: but the warrant was not in effect. at the -- at the time the -- the gps was placed, justice alito, there was no warrant. there's a case this court decided in the --justice ginsburg: i think that's been conceded by both sides and that's accepted by both sides. the warrant expired. there was no warrant. the government certainly could have gone back and said, judge, we didn't make it; we need a little more time; give us more days. mr. leckar: they could -- they
could conceivably gone back there and explained to the district judge why they couldn't have installed it in that period of time. the --justice alito: i think if you look at the lower court case law, you will find that a violation of the --day rule is not necessarily a violation of the fourth amendment. and --mr. leckar: i understand that. justice alito: -- doesn't vitiate the warrant. the warrant doesn't necessarily dissolve or evaporate when those days expire. mr. leckar: your honor -- justice alito: maybe those cases are wrong. mr. leckar: there is a supreme court decision decided during the prohibition era that specifically said that when a warrant expires there is no warrant. when the --day rule in that case is expired, there is no warrant. we have a warrantless intrusion here. the government didn't have to do a warrantless intrusion. i ask the court to -- affirm. chief justice roberts: thank you, counsel. mr. dreeben, minutes. rebuttal argument of michael r. dreeben on behalf of the petitioner mr. dreeben: mr. chief justice, advancing technology cuts in two directions. technological advances can make the police more efficient at what they do through some of the examples that were discussed today: cameras, airplanes, beepers, gps. at the same time, technology and how it's used can change
our expectations of privacy in the ways that justice alito was alluding to. today perhaps gps can be portrayed as a --type invasion, but as people use gps in their lives and for other purposes, our expectations of privacy surrounding our location may also change. for that -- justice kagan: mr. dreeben, that -- that seems too much to me. i mean, if you think about this, and you think about a little robotic device following you around hours a day anyplace you go that's not your home, reporting in all your movements to the police, to investigative authorities, the notion that we don't have an expectation of privacy in that, the notion that we don't think that our privacy interests would be violated by this robotic device, i'm -- i'm not sure how one can say that. mr. dreeben: justice kagan, i
think the court should decide that case when it comes to it. this was my fundamental point: this case does not involve universal surveillance of every member of this court or every member of the society. it involves limited surveillance of somebody who was suspected of drug activity -- justice kennedy: you probably haven't had the opportunity to go on a vacation. a hypothetical. suppose exactly these facts, only the police aren't involved. a neighbor does it to another neighbor in order to see where that neighbor is going, and when he finds out, he tells his wife and -- and other neighbors. do you think that in most states, that would be an invasion of privacy? mr. dreeben: i'm willing to assume that it might be, justice kennedy, but i don't think that this court measures the meets and bounds of the fourth amendment by state law invasions of privacy. the court usually --justice kennedy: we measure it by expectations of privacy under the katz test if -- that may or may not be controlling. mr. dreeben: yes, but in greenwood, the court dealt with a case where california had outlawed taking somebody's
garbage, and this court said that did not define an expectation of privacy for purposes of --justice kennedy: it found that there was no expectation of privacy. mr. dreeben: correct. justice kennedy: i'm asking you about this case, whether there would be an expectation of privacy -- on a general matter under tort law. mr. dreeben: i don't think so. and -- and the fact that something may be a tort for a private person doesn't mean it's a problem for the police to do it. for example, in the dow chemical case, where the police used -- epa in that case actually used cameras to surveil an industrial plant. there was a claim that it would have violated trade secret law for anybody else to do that. there was a claim that it would have violated trade secret law for anybody else to do that. and the court accepted that and said tort law doesn't define the boundaries of the fourth amendment. in knotts, the court was very careful to reserve the possibility of --hour surveillance of every citizen in their persons and in their residences, saying we haven't seen that kind of abus
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