Defendant stole a woman’s purse at gunpoint. In her purse was a smart cell phone with GPS. Tracking the GPS to locate the defendant violated no right of his. People v. Barnes, 216 Cal. App. 4th 1508, 157 Cal. Rptr. 3d 853 (1st Dist. 2013).* [Law.com article here from 6/27] This opinion is six times longer than it needed to be because the Jones tracking argument was completely irrelevant:
Although defendant no longer equates police use of GPS technology with a standing violation of the Fourth Amendment, he is still deeply uneasy with what he fears is the onset of an irresistible erosion of personal privacy. Both defendant and the Attorney General have obviously given the matter considerable thought, and the briefs reflect research that has reached into academic journals and unpublished federal decisions.
Because there was no physical trespass or intrusion,fn4 the question becomes how defendant fares under “Katz's reasonable-expectation-of-privacy test” because “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” (Jones, supra, 565 U.S. ___ [132 S.Ct. 945, 953].) Put more precisely, did defendant have a legitimate expectation of privacy in the cell phone he had stolen. The answer is an emphatic “No.” As stated most baldly by the Ninth Circuit: “The Fourth Amendment does not protect a defendant from a warrantless search of property that he stole, because regardless of whether he expects to maintain privacy in the contents of stolen property, such an expectation of privacy is not one that society is prepared to accept as reasonable.” (United States v. Caymen (9th Cir. 2005) 404 F.3d 1196, 1200.) The principle enjoys wide acceptance. (State v. Jackson (La. 2010) 42 So.3d 368, 372; State v. Soukharith (Neb. 1997) 253 Neb. 310 [570 N.W.2d 344, 356]; United States v. Tropiano (2d Cir. 1995) 50 F.3d 157, 161–162 and decisions cited; United States v. Bailey (6th Cir. 1980) 628 F.2d 938, 944; United States v. Soto (D. Mass. 2011)779 F.Supp.2d 208, 218.)
4. The only trespass here was committed by defendant who committed it when he took Fey's purse. (See Jones, 565 U.S. ____[132 S.Ct. 945, 962] (conc. opn. of Alito, J.) [“Trespass to chattels has traditionally required a physical touching of the property”].)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)