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Police-state proponents sent back to the drawing board as highest court beats back Fourth Amendment erosions

In a blow to the President Obama and pro-police state organizations like the Fraternal Order of Police, the U.S. Supreme Court has ruled [PDF] that police and federal agents cannot track U.S. citizens via GPS without a warrant.  The decision is a dramatic departure from lower courts, including a U.S. Federal Court of Appeals, which had previously opined that police could invade citizens' private property and plant tracking devices on their vehicles for 24-hour surveillance.

I. Obama v. The Fourth Amendment

The issue all boils down to the Fourth Amendment in the Bill of Rights, part of the Constitution -- the U.S. federal government's most important legal document.  The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The argument has revolved around whether efforts to invade "suspects'" property without court authorization and tracking them without court authorization counts as "unreasonable searches".

By looking to creatively redefine the meanings of "reasonable", "searches", and "effects", the Obama administration, Bush administration, and others have looked to subtly erode Fourth Amendment protections, allowing the government to remove the burdensome civil liberty, which has long stood in the way of those whose goal is unchecked federal power.

Obama Big Brother
Presidents Barack Obama and George W. Bush defended warrantless tracking of American citizens, part of both administrations' broader plans to expand federal government in different ways. [Image Source: Fits News]

Officer Shelley Broderick of the Fairfax, Virginia Police Department -- one of the departments to embrace the device -- defended the device and police departments decision to prevent the public from knowing how it's being used, stating, "We don't really want to give any info on how we use it as an investigative tool to help the bad guys.  It is an investigative tool for us, and it is a very new investigative tool."

U.S. police trooper
Powerful forces have been working to erode Fourth Amendment protections in the U.S. over the last decade, clearing the way for an unchecked "police-state". [Image Source: Reuters]

The wireless, warrantless GPS tracking of suspects first came into vogue between 2006-2008, as wireless GPS bugs replaced cruder "beeper" devices, which emitted a supersonic tone along a vehicle to be tracked.  In several cases, GPS tracking has led to evidence that incriminated suspects, which in turn resulted in appeals.  The Ninth Circuit Court of Appeals (which covers California, and other Western states) and the Seventh Circuit Court of Appeals (which covers Texas and several other states) had both ruled that the practice was acceptable [1][2][3].

Faced with the prospect of life in prison, the suspects in both the Texas and California cases appealed to the D.C. Circuit Court of Appeals, but saw it reject their claims in 2010.  The Federal Appeals court ruled that the U.S. Supreme Court ruling U.S. v. Knotts, 460 U.S. 276, a 1983 case on beeper tracking, had already decided that such tracking was legal.

II. Supreme Court Agrees to Hear Case 

However, questions remained even after the Federal Appeals court ruling.  Beeper tracking was not digitally recorded and was only viewable within a short area, where as GPS surveillance could be carried out 24-7 from a remote location.  In other words, the technology and the scope of the surveillance were quite different.

The Supreme Course announced [PDF] that it would review the case in June 2011, prompting the Obama administration to warn them that the warrantless surveillance was a powerful tool to "fight crime and terrorism".

U.S. Supreme Court
The U.S. Supreme Court [Left: U.S. Supreme Court; Right: Deadline Hollywood]

President Obama and the lower courts sought to creatively redefine the Fourth Amendment to only apply in cases where the officers had to go to great lengths to enter a suspect's property.  In other words, unless you had a fence, the administration argues that police should be able to invade your property and plant tracking devices on your vehicle without any sort of regulation.

As fencing your property is not free -- this caused the debate to take on class injustice overtones.  In a dissenting opinion in the Ninth Circuit Court's decision, Chief Judge Alex Kozinski argued that this system equated justice to the amount of money you have.  He points out that the rich with electric gates, fences, and security booths have a large protected zone of privacy around their homes -- which allows their property to qualify for the creative reinterpretation of Fourth Amendment protections.

III. Ruling Beats Back Lower Court, Executive Branch Fourth Amendment Erosions

Unfortunately for President Obama and fellow proponents of warrantless tracking, the Supreme Court has ruled (U.S. v. Jones, 10-1259; PDF) unanimously (9-0) that it is illegal for police to track citizens without warrant, using GPS.

Justice Antonin Scalia, the longest serving Supreme Court Justice and an appointee of President Ronald Reagan, delivered one of the main opinions.  In a reversal of the 1983 decision Justice Scalia, rights that even the act of entering a residential property (regardless of "fences", etc.) constitutes a search and requires a warrant.

He writes:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.  We have no doubt that such a physical intrusion would have been considered a "search" within the meaning of the Fourth Amendment when it was adopted.

He explains that Oliver v. United States, 466 U. S. 170 (1984) the case lower courts used to justify the invasion of unfenced properties, was being inappropriately applied.  He points out that Oliver involved an empty lot, versus the residential setting of the current case and others.  He writes:

[O]ur conclusion in Oliver v. United States, 466 U. S. 170 (1984), that officers' information-gathering intrusion on an "open field" did not constitute a Fourth Amendment search even though it was a trespass at common law, id., at 183. Quite simply, an open field, unlike the curtilage of a home, see  United States v.  Dunn, 480 U. S. 294, 300 (1987), is not one of those protected areas enumerated in the Fourth AmendmentOliver,  supra, at 176–177.  See also Hester v. United States, 265 U. S. 57, 59 (1924).  The Government’s physical intrusion on such an area—unlike its intrusion on the "effect" at issue here—is of no Fourth Amendment significance.

He also argues that Knotts was misinterpreted by the lower courts, writing:

United States v. Knotts, 460 U. S. 276 (1983), does not foreclose the conclusion that GPS monitoring, in the absence of a physical intrusion, is a Fourth Amendment search. As the majority’s opinion notes, Knotts reserved the question whether “ ‘different constitutional principles may be applicable’ ” to invasive law enforcement practices such as GPS tracking. See ante, at 8, n. 6 (quoting 460 U. S., at 284).

The vehicle was an "effect" and hence the police committed yet another Fourth Amendment violation in invading it without warrant:

The Fourth Amendment provides in relevant part that "[t]he right of the people to  be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."  It is beyond dispute that a vehicle is an "effect" as that term is used in the Amendment.  United States v. Chadwick, 433 U. S. 1, 12 (1977). We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a "search."

In other words, the Supreme Court could have delivered a narrow ruling against simply GPS tracking (based on the invasion of an effect), but it instead both did that and delivered a far broader rebuke of invasions of private residences without warrant, which it says are being justified by abuse and misunderstanding of Oliver.

IV. What This Means for Americans' Freedoms

The decision puts a firm end to the federal government's growing efforts to expand warrantless searches:

Under the new laws the government cannot:

1. Enter your property without warrant.
2. Plant a GPS tracker on your "effects" (car, bags, etc.) without warrant.
3. Use evidence collected by above warrantless tracking in court.

The government can:

1. Enter unfenced open fields without warrant and search them (though it presumably cannot search vehicles "effects" in them).

The decision is important as it prevents both more Orwellian abuses in which a federal authority could look to use these privileges to quell political opposition and consolidate power.  But it is equally important for preventing the more common micro-abuses in which individuals could look to abuse the unchecked power in unauthorized ways.  For example in 2010 a police officer used a department GPS tracker to stalk his ex-girlfriend who eventually found the device and realized it was how he had been knowing where to find her after several harassing encounters.

GPS Stalking
A police officer used a department GPS tracker to stalk his girlfriend in 2010.
[Image Source: KABC/ABC 7]

The Supreme Court decision clears Washington, D.C. nightclub owner Antoine Jones, who had been facing life in prison. It will likely lead to several other similar verdicts being overturned.  In the short term this may seem like a bad thing, as suspected drug dealers will be back on the streets.

But in the long term it simply means that police will have to catch criminals by Constitutional methods -- good old fashioned warrant-backed police work.

The words of Leonard H. Courtney, a luminary British reformist politician, seem to apply in this case.  He famously stated, "The condition upon which God hath given liberty to man is eternal vigilance."

And then there's the words of American Founding Father Benjamin Franklin who , "Sell not virtue to purchase wealth, nor Liberty to purchase power."

Source: Supreme Court [PDF]

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By JasonMick on 1/23/2012 2:26:07 PM , Rating: 2
I mean Bush was simply an idiot uber-cliche Republican president, so it is expected a law like that would be proposed and passed (Patriot Act), but Obama? It seems so out of place that such an unpopular law with universal dissent from both parties would be moved forward by two completely different presidents.

Both Presidents have actually been rather similar aside from social issues. Both have support sweeping expansions of federal budget/power/authority in the name of "anti-terrorism".

Obama tended to toss tax loopholes and grants at "green" firms, certain automakers, and the banks. By contrast Bush largely focused his tax breaks on energy companies (i.e. oil companies) and defense firms (a major part of the several trillion in Iraq War/Afghanistan war costs went to private contractors like Haliburton). But either way, their special interests' mouths were getting fed @ the expense of the taxpayers.

If you don't believe me, consider this:
The occupation of Iraq (tremendously expensive) is almost over. So why are we still paying the same amount of taxes?

Contrary to popular belief overall funding of social programs didn't increase significantly enough under Obama to account for this difference. The answer is simple if you spend much time looking at the federal budget and recent legislation -- the money has been funneled to new and different corporate tax handouts. The feeding is the same, it's just a different mouth.

Not really that different...

By gamerk2 on 1/23/2012 2:50:43 PM , Rating: 5
The occupation of Iraq (tremendously expensive) is almost over. So why are we still paying the same amount of taxes?

Because unlike every other war in US history, taxes were not raised to pay for the cost of the war. So if taxes weren't raised to pay for the war, why should there be a deduction after the war ends?

Nevermind the giant deficit we currently have; lets reduce even MORE revenue! What could happen?

By JasonMick on 1/23/2012 3:12:31 PM , Rating: 3
Because unlike every other war in US history, taxes were not raised to pay for the cost of the war. So if taxes weren't raised to pay for the war, why should there be a deduction after the war ends?

Nevermind the giant deficit we currently have; lets reduce even MORE revenue! What could happen?

Yes but the deficit you allude to is a side effect of giving an effect 0% tax rate (or even government refunds) to a favored handful of corporations and billions in special interest grants.

The result is the SMBs and individual taxpayers have to pay all of their taxes PLUS all of the corporations taxes, and in many cases even pay a nice healthy refund check to hand to these corporations.

From "tax holidays" to "tax loopholes", both parties have worked of late to lower the U.S. relatively high official corporate tax rate down to an effect 0 rate.

At the same time you have massive spending on bloated federal level social programs and the military.

To be clear I have no problem with responsible defense spending, but costs -- particularly among the favored private contractors -- are simply not in line with the free market (e.g. $10,000 chairs, etc.).

So you have a lot of spending, but your tax revenue is only at half strength because of all your corporate tax breaks/payouts.

What do you think is going to happen?


If you reduced federal spending by transfering some programs to a state level, and forced stricter regulation on military contracting, along with instituting a flat tax on corporations that cannot be altered, you would be able to lower income/SMB taxes WHILE cutting the deficit, and retaining basic defense/certain social programs (e.g. education, highways).

By FITCamaro on 1/23/2012 3:40:03 PM , Rating: 2
Funny. Defense industries which you claim Republicans are behind pay quite a bit in taxes. Contrast this with GE, who's now former CEO is a friend of the Obama administration and has tried to position itself into every facet of his desires (health care and "green" energy), is one of the few who've paid none.

And please point out the contracts for these $10,000 chairs you like to mention. Now if said chair is an ejection seat, then yes, it probably costs $10,000 if not more.

By mcnabney on 1/23/2012 6:21:28 PM , Rating: 2
My dad is paid $310 an hour to give physicals to military enlistees prior to being sworn in. And this is as a contractor. I'm sure the Dept of Defense pays the INDIAN COMPANY that hired him a lot more for those services.

By TSS on 1/23/2012 11:02:18 PM , Rating: 3
Yknow, let's play devils advocate for once. I've been calling for revolution more then enough.

Yes but the deficit you allude to is a side effect of giving an effect 0% tax rate (or even government refunds) to a favored handful of corporations and billions in special interest grants.

As opposed to, what? 50% of the poorest population that effectively don't pay any taxes either?

yknow when you look up historical tax rates you'd see that taxes are the lowest they've been in 80 years for EVERYBODY.

While i'm all for the rich paying a little more because they can afford it, the poor people *have* to start paying taxes too. If they cannot afford to because they've laden themselves with mortgage debt, credit card debt, multiple cars on downpayments etc, that is not the governments problem. Used to be one was responsible for his own actions.

Traditional media is good at finding those idiots too. One of those "people" stories on CNN features a mother of 2 who "lost her job and was all sad", saying she went from 3 cars and not a problem to barely being able to afford 1 car. I'm like, why the hell does ANYBODY need 3 cars? I've got a real problem understanding 2, unless you and your spouse both work in different cities, in opposite directions.

If instead of 3 cars, she'd gone with just 2 (IMO even 1 car is a luxury and not a right) she'd still have money saved up now to be able to afford those 2 cars until the next job. Scale back a car at that point and you're not even in danger of losing the house at any point.

1 idiot, ok. But CNN manages to find *loads* of them, all with similar sob stories but still a yearly income triple mine. And other media sites do it just as easily.

How about you guys implement a MINIMUM tax of 10%. Meaning everybody pays atleast 10% of their income in taxes, no matter what deductions or whatever's put into place, or who you are. No matter wether you can afford to or not. Force people to adjust their budgets. It's easy to do as well, just implement a sales tax of 10%, nation wide, undeductable.

And once again. If you can't afford that much more taxes, screw you and learn some fiscal responsibility. I could give up another 20% of my income right now, and i live off a 75% of minimum wage disability check! I wouldn't be happy, but i can.

Otherwise i'd say drop corperate taxes comepletly. The big guys don't pay anyway, and the little guys are only giving you $200 billion a year anyway. Which is a drop in the bucket considering your current deficit. But because of the extra income companies will hire again spurring growth and giving people more money which they can then use for taxes. You'll end up in the same situation with the same revenue only this time, there *is* significant growth.

In any case. It's not just the rich. It's more then fair to say the majority got into this credit orgy now the majority will have to deal with the withdrawl. Personally i live debt free so i haven't noticed anything of the crisis in the last 4 years.

By sigmatau on 1/23/2012 11:45:48 PM , Rating: 2
"If they cannot afford to because they've laden themselves with mortgage debt, credit card debt, multiple cars on downpayments etc, that is not the governments problem..."

Wow! Maybe you need to be poor to actualy understand why these people do not pay taxes since you have no flipping idea what it is to be poor.

Poor with a mortgage? Really?
Poor with a credit card? Really?
Poor with multiple cars? Really?

What is poor to you? Making $100k a year? I won't bother with the rest of your post since you can't even get that part right.

Maybe if many greedy, slimey companies didn't try to purchase your labor @ $10 an hour things would be different. Education is another huge barrier. If you don't have a decent education, the probability that you will be stuck at the bottom is high. Environment is another factor. If you come form an uneducated family, then you have a higher probability that you will not be so well educated. This is called reality. Look it up some time.

But hey, let's all pay $1000 a year on taxes. Make it fair for everyone. Everyone! Rich... not so rich... poor... everyone. Wouldn't that be the definition of fair? Let's see how quickly our country spirals out of control and our rich become poor.

By TSS on 1/28/2012 9:58:01 AM , Rating: 1
sorry for the late replay but i can't let this go into history like this.

since you have no flipping idea what it is to be poor.

and i live off a 75% of minimum wage disability check!

And i live in europe so i still pay a 19% sales tax on nigh everything, and 6% tax on *vital essential things to live*. The only reason why i don't pay income tax is because my income is government money to begin with. And 75% of the minimum wage means i get 25% less the somebody who works 40 hours a week in the shittiest of jobs. I don't have to work, sure, i get to be certified crazy in return.

*i* am not going to bother further with such an ignorant post. But i just had to point this out. Because this is classic projection and it's clearly sigmatau who cannot concieve what it is to be poor.

have a good day.

By FITCamaro on 1/23/2012 3:41:45 PM , Rating: 2
Oh cmon. We're "only" spending about 180% of what we take in. People love to point to defense spending but sorry we weren't running $1.6 trillion deficits PER YEAR at the height of the Afghanistan and Iraq wars even if you added the special allocations for those wars into the budget.

By Reclaimer77 on 1/23/2012 4:03:35 PM , Rating: 2
Oh cmon. We're "only" spending about 180% of what we take in.

Well clearly we need to raise taxes then. That's the solution!


By topkill on 1/23/2012 3:47:08 PM , Rating: 1

Have you ever actually run a business? We don't sit around worrying about how much taxes something is going to cost. We're worried about making revenue and then trying to maximize profit. The taxes are just a small part of that and don't even come close to the other costs of doing business.

Would it be nice if they were lower? Yes, I could buy a new Mercedes anytime I wanted it rather than waiting every year or two. But would it change my business? No. Would it change my hiring? No.

You have to quit speaking talking points and stick with something you actually know.

As for your moronic statement:
Revenue is NOT the problem, spending is.

Do you understand simple math? They both add/subtract from the same bucket.

It is your OPINION that it would be better to reduce spending than increase revenue and in general that is true. But if you'd ever run a large company (much less a gov't), you'd know that it takes more money to try to be more efficient past a certain point than what you spent getting there.
Could we be more efficient? Hell yes. Would that solve our problem? No.

You can't spend half a $trillion a year buying foreign oil and nearly a $trillion a year on standing military and unfunded wars. Those things diminish our economy.

The amount of waste on everything else is small by comparison.

It gets so old listening to your John Birch society bullshit. You spout far right wing talking points like they were religious dogma. Just STFU for once.

By Reclaimer77 on 1/23/2012 3:58:55 PM , Rating: 1
Have you ever actually run a business?

Yes I have. And guess what? If I spend roughly 200% more than I gross, what happens to my business?

Actually you know what, forget it. You're so offensive and there is so much wrong with your post, it's not worth it. No businessman I ever heard of would tell someone to "stfu" and spew a bunch of nonsense like this.

By autoboy on 1/23/2012 4:42:43 PM , Rating: 2
The government is a monopoly. It doesn't operate under the same conditions as a business which operates in a competitive environment. A business can increase revenue by taking market share from a competitor, or by creating new revenue sources, or by raising prices.

The government can only raise revenue by raising taxes or by growing the overall economy. But, simply raising taxes has a suppressive effect on the economy because you are taking money away from the economy that was normally used to grow a business. So, if you raise taxes by 180% (which is how much more we spend than we tax) then it will result in a recession of the economy. The actual results of this are difficult to predict which is why there is a big debate on the subject, but nobody denies that an increase of 180% would have a devastating effect on the economy. So yes, we have a revenue problem, but that could also be characterized as a spending problem. It won't be solved by simply raising taxes. The alternative is to decrease spending which the government has more control over, but since we have been spending so much borrowed money as "stimulus," taking that away will also have a suppressive effect on the economy.

Traditionally the government has spent 18% of the gross domestic product. We are spending over 25% now.

By Reclaimer77 on 1/23/2012 4:54:02 PM , Rating: 1
Yeah, plus a business can't just print it's own money out whenever it wants.

By HrilL on 1/23/2012 3:31:31 PM , Rating: 2
More likely the Government never wants to lose a revinue source. The orignial enactment of a saliery tax was to pay for a war in the first place. It was even supposed to be temporary.

If the government actually followed the conistution then it would be smaller and there wouldn't be taxes on our equal trade of work for money. The true definition of income is a capital gain. This has been changed over the years but that doesn't make it right.

By Reclaimer77 on 1/23/2012 2:57:57 PM , Rating: 2
So why are we still paying the same amount of taxes?

Yeah it's really a mystery.

*looks at Federal Budget under Obama. Crosschecks that with deficit*

Ohhhh...yeah. That.

By cooperaaaron on 1/23/2012 3:24:25 PM , Rating: 3
Right.... Hate Obama much ???

By mcnabney on 1/23/2012 6:22:33 PM , Rating: 2
The Sherrif is a Ni...

By bupkus on 1/24/2012 9:46:24 AM , Rating: 2
There you go, showing off your education.
It's spelled "Sheriff".

By rburnham on 1/23/2012 3:53:02 PM , Rating: 2
I just want to say thank you for typing out a reasonable, fair look at both presidents. It is so easy for topics like this to devolve into bad mouthing either president, but you did not do that. I appreciate that.

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