Pretrial electronic monitoring does not violate the Fourth Amendment

Pretrial electronic monitoring is not a violation of the Fourth Amendment. United States v. Gardner, 523 F. Supp. 2d 1025 (N.D. Cal. 2007):

In the instant case, the sole condition of electronic monitoring does not implicate any such interest. It does not violate a reasonable expectation of privacy under the Fourth Amendment. Electronic monitoring simply alerts law enforcement officials when Ms. Gardner has traveled 100-300 feet away from her home in violation of her curfew restriction. It does not reveal where she is within the home. The system functions as a virtual monitor standing watch outside of Ms. Gardner’s home to ensure she complies with her curfew. Thus, electronic monitoring itself does not invade Ms. Gardner’s reasonable expectation of privacy since the system monitors only what would be readily observable to the public eye. See United States v. Knotts, 460 U.S. 276, 281-82 (1983) (concluding that no reasonable expectation of privacy exists where a person travels in public); Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Cf. United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999) (“[T]here is no reasonable expectation of privacy in the exterior of a car because the exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a search.” (quoting New York v. Class, 475 U.S. 106 (1986))).

Nor does electronic monitoring implicate any identifiable common law right to privacy and thus a fortiori does not establish a liberty interest under Paul. The common law tort of intrusion upon seclusion requires that a plaintiff show an intentional intrusion into the solitude or seclusion of another or his private affairs or concerns that is highly offensive to a reasonable person. Restatement (Second) Torts § 652B (1977). Here, similar to the Fourth Amendment analysis, electronic monitoring would not trigger liability since it only provides information that is readily gleaned by the public eye. See id. cmt. c (“[T]here is no liability … for observing [the plaintiff] or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye.”).

Defendant was taken in, but not arrested, for indecent liberties with a child, and he consented to his car being towed to the police station. After they were there, he was asked for consent to search the car, but he did not want the officers to let his wife know what was in it. The officer assured the defendant he would not tell the wife, so the defendant consented. The consent was valid. Commonwealth v. Wallace, 70 Mass. App. Ct. 757 (2007).*

Police had reasonable suspicion based on defendant’s description, proximity to a robbery call, and then flight when he saw the police. The search of his duffle bag at the time of detention was waived. People v. Quinones, 2007 NY Slip Op 9431, 45 A.D.3d 874, 847 N.Y.S.2d 145 (2d Dept. 2007):

The police had a founded suspicion that criminal activity was afoot when they observed the defendant, who matched the general description of a robbery suspect in a radio call, in the stairwell of the building where the reported robbery occurred …. The defendant’s attempted flight, combined with the temporal proximity between the reported robbery and the officers’ arrival on the scene, gave the police reasonable suspicion to detain the defendant. …

The defendant’s contention that the search of his duffel bag without a warrant constituted an unreasonable search and seizure, was not raised at the suppression hearing, and thus, it is unpreserved for appellate review … and, in any event, is without merit ….