Grits for Breakfast: Whether SCOTUS says GPS tracking is constitutional, markets may decide if it's viable [link not working now]:

Fourth Amendment fans and foes alike are awaiting oral arguments this fall in United States v. Jones, which will determine whether police require a warrant to surreptitiously put a GPS tracking device on your car.

Obviously, Grits thinks a warrant should be required, but frankly a warrant requirement isn't that great a barrier and the case made me wonder about technology to identify such devices. It turns out for $500 bucks you can purchase a device that will locate GPS trackers as well as wiretaps, wireless taps, and even hidden cameras. Ironically, with SCOTUS focused on the use of GPS trackers by the government, the manufacturer is promoting the device to protect against thieves:

Don't Give Thieves Access To Your Personal Information Or Possessions

Being spied on can be more than just embarrassing. Oftentimes, thieves use eavesdropping equipment or "bugs" such as sound amplifying devices for audio surveillance or hidden cameras for video surveillance to find out valuable information about your personal finances and possessions. Your private conversations can give thieves all the information they need to steal your identity, break into your home, or even abduct your children. Protect yourself with the Frequency Finder Bug Detector Pro.

Defendant’s stop was justified, but merely possessing a gun was not probable cause to believe that those in the car were committing a crime. The arrest for the gun before determining whether it was lawfully or unlawfully possessed was unreasonable. People v. Matthew, 55 V.I. 380 (2011)*:

In conclusion, this Court holds, consistent with the Third Circuit's decision in U.S. v. Ubiles, and Title 23 Section 488 of the Virgin Islands Code, that the warrantless arrest of defendants—without probable cause that the weapons were unlawfully possessed or without any other evidence to support probable cause that other criminal activity was afoot—was unreasonable under the totality of the circumstances and that the weapons and ammunition and all other evidence uncovered subsequent to the unlawful arrest are hereby suppressed.

Defendant’s son called the police to tell them that defendant was a convicted felon with firearms, was off his medication, and had be acting erratically and assaulted someone. He said he lived at the house with his father. He consented to a search, and the consent was with objective reliance on apparent authority. Defendant credibly argued, the court’s view, that he had kicked his son out of the house before that, and he had obtained an order of protection to keep his son away. He argued that the order of protection was served on the Sheriff’s Office and that was “collective knowledge” imputed to all the Sheriff’s Department that the son had no actual authority. While the argument had some limited force, the USMJ cannot find as a matter of fact that the document was actually served on Sheriff’s Department before the consent to search to give it any strength. United States v. Cribbs, 2011 U.S. Dist. LEXIS 116742 (W.D. Tenn. February 11, 2011)*, adopted in part 2011 U.S. Dist. LEXIS 112559 (W.D. Tenn. September 29, 2011).*

Defendant refused to consent to a search of his car, but, on the video, he did consent to a dog sniff when separately asked about that. He argued that his consent was just going along with the officer, but the court finds from the video that defendant’s voice inflection was true consent. The first question was less than “ideal” but the officer followed up with further questions that were unequivocal. United States v. Grant, 2011 U.S. Dist. LEXIS 116699 (D. Neb. October 5, 2011)*:

... Upon review of the traffic stop video, the court can hear the inflection in Grant's voice when he responded with an unequivocal "sure," affirming his consent to allow Sergeant Wilcynski to call a canine officer. In addition to this verbal consent, Grant was an adult who understood English, was not under the influence of drugs, and had prior arrest experience. The encounter had lasted only a few minutes up to that point. Sergeant Wilcynski made no threats, promises, or misrepresentations, and Grant was not under arrest. Grant later engaged Sergeant Wilcynski in cordial conversation while they waited for the canine officer and even expressed his ease with waiting while a storm passed over his intended route. Under these circumstances, the court finds Grant voluntarily consented to the twenty-two minute post-stop encounter. For this reason, the court finds the detention and search were constitutionally reasonable.

Defendants were indicted for seditious conspiracy in a militia group known as the Hutaree planning action against the government that would include setting up an ambush of police officers. The government infiltrated the group by informant and passed a wealth of information that formed the basis of seven search warrants which were found to have issued with probable cause. United States v. Stone, 2011 U.S. Dist. LEXIS 116800 (E.D. Mich. August 3, 2011).*

My SCOTUSBlog commentary on Florence v. Board of Chosen Freeholders of the County of Burlington strip search case argued today, October 12th:

At issue in Florence is “reasonableness” of a jail strip search of a man brought in because of a computer error on whether he had paid a past traffic fine. In Bell v. Wolfish the Court held that pretrial detainees in the Manhattan MCC could be strip searched during their confinement because it was reasonable on a balancing of interests.

Those detainees, however, were either held on a criminal complaint or indicted. How does that relate to an accidental arrestee, a person brought to jail because of an erroneous traffic warrant that arose after the person was stopped on the street by chance, and a warrant comes up when his driver’s license number is run?

Reasonableness has always been stated by the Court to be the “fundamental inquiry” (see, e.g., United States v. Chadwick) or “touchstone” in Fourth Amendment cases. (see, e.g., Robinette v. Ohio; Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls). Was it reasonable to strip search Mr. Florence when there was virtually no chance he would be introducing a weapon or contraband into the jail? Does the Fourth Amendment “reasonableness” and balancing inquiry permit the Court to find this strip search invalid in light of what some members of the Court will undoubtedly see as the weighty interest in jail security automatically tipping the balance for the government?

And what about “lesser-intrusive means”? An accidental detainee like Mr. Florence should not be subjected to the indignity of his strip search. Even so, how does one apply such a rule (a “bright-line rule”?) so jailers will understand it? That didn’t stop the Court in holding that a detainee couldn’t be detained more than 48 hours without seeing a judicial officer for a probable cause finding in County of Riverside v. McLaughlin, but that case did not involve jail security. But, Earls refused to even going in the “lesser-intrusive measures” for drug testing students. Indeed, such a standard has always been scrupulously avoided by the Court. (See, e.g., United States v. Martinez-Fuerte and Colorado v. Bertine).

An irony lost on the parties [only one respondent mentions it in passing for something else] is Herring v. United States holding that the exclusionary rule would not be applied to persons arrested and then searched on accidental warrants because there was only mere negligence in not purging the warrant. Now, that mere negligence leads to the gross indignity of a strip search of a man with papers in his car showing that the warrant for him is bogus.

If Mr. Florence loses, then we have a fait accompli. “Reasonableness” has been forever subordinated to “jail security,” and mere incantation of the words makes the Fourth Amendment evaporate in any jail setting. No exclusionary rule under Herring; no civil action under Florence; the government can’t lose; perfect. Is that where we are headed? Gail Atwater’s driving without a seat belt would then have caused her to risk being strip searched because her arrest was valid under the Fourth Amendment even though the offense was “fine only.” And what about retaliatory arrests for “contempt of cop”? Can officers then arrest people to purposely add to their indignity knowing that a strip search will occur, too? That already happens with automobile searches, so why not for any arrest?