Thursday, August 14, 2008

Of Searches and Seizures

Via Instapundit and, oddly enough, TalkLeft comes this story about the increasingly common use of GPS devices to track criminal suspects without a warrant. According to the story, police are in some (unknown and super secret) way attaching GPS devices to vehicles of persons suspected of crimes. Courts have regularly upheld the use of these devices even when no warrant is obtained for their use under the theory that one's actions while driving on a public street are not entitled to a reasonable expectation of privacy.

According to the article, and verified by the arguments made at TalkLeft, it would seem that the primary argument being made by privacy advocates and civil libertarians is that the use of GPS systems and the storage of data collected therefrom is far in excess of any information that could be collected simply by having a police officer tail the suspect. Civil libertarians note that GPS devices permit tracking even when the vehicle is entirely on private property where there is no dispute that a reasonable expectation of privacy exists.

Unfortunately, I think the civil libertarians are barking up the wrong tree on this one. To be sure, the concept of the creeping surveillance state is more than a little worrisome and is generally quite un-libertarian, but constitutionally (or at least under now longstanding constitutional precedent) I think the State is on relatively firm ground insofar as it argues that there is no reasonable expectation of privacy on public streets.

But that doesn't mean that this is the only argument against the use of these devices. As Glenn Reynolds notes, the act of placing the tracking device on the vehicle constitutes the tort of trespass to chattels, for which a private citizen would be liable to another private citizen. Unfortunately, simply permitting law enforcement to do things that would be illegal in any other context and holding them to a lower standard of behavior is pretty much par for the course these days.

Still, I think there is an argument to be made that the use of these GPS devices without a warrant constitutes a 4th Amendment violation - just not of the sort suggested by the folks at TalkLeft. The 4th Amendment does not just include a prohibition on warrantless unreasonable searches (generally interpreted to include invasions of privacy in certain circumstances), but also on unreasonable "seizures." Naturally, when we think of a "seizure," the first thing that comes to mind is a situation where the government quite literally uses the force of law to deprive a property owner of ownership. But that's not the full definition of a "seizure," which is as far as I can tell consistently defined as "the taking possession of person or property by legal process." And what, pray tell, is the legal meaning of the word "possession"? "The having, holding, or detention of property in one's power or command; actual seizin or occupancy; ownership, whether rightful or wrongful." In almost any respect, the intentional attaching of an item to another's property without that individual's permission is an act of ownership. Moreover, if the placement of the GPS devices is, in fact, a trespass to chattels (unfortunately not a tort I have much experience with), then it's worth noting that the tort of trespass to chattels is defined to require the "dispossession" of a chattel (aka, physical property other than real estate).

So, assuming this would be a trespass to chattels, the question becomes "Can the government 'dispossess' an individual of that individual's property without a warrant while still complying with the Fourth Amendment's prohibition against unreasonable seizures?"

I'll cop to having done barely any research on this issue, which is outside the strongest areas of my legal knowledge, so if my theory on this turns out to be more or less cockamamie or has been rejected by the SCOTUS already, please let me know.