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I think the more important issue Judge Kozinski brings up in his dissent is the increasing approval of the use of super-human observational powers by the police. The rule used to be that what the police can readily see--literally, see, with their eyes--had no expectation of privacy. Now it's whatever information the police can gather using increasingly unlimited technological means, like GPS trackers, only vaguely related to that standard.

Actual dissent: http://www.leagle.com/unsecure/page.htm?shortname=infco20100...

I agree that this is area of concern for privacy. Right now the general standard on what police can use for technology is that they can use the same technology that is readily available to the general public. It isn't an unlimited-means standard.

Thermo-imaging equipment to detect marijuana growers is not readily available, so it cannot be used.

Telephoto lenses can be bought by anyone, so they can be used.

GPS is readily available, so it can be used.

The standard certainly is a moving target. I don't agree with its wisdom, but that is the law as it stands.

Pinging the location of your cell phone is a capability used by police without a warrant (in some jurisdictions) that is not available to the general public.

I can't make up my mind about the GPS issue. Like yourself I find it extremely intrusive, and I do have a problem with the idea that they can attach it to your car - are you really 'secure...in your [] effects' under the 4th amendment if the police can mess with your stuff in this fashion?

On the other hand, we accept the reality that the police often stake out suspected criminals to observe where they go,, who they meet etc. So if a police officer was watching someone's house from across the street, watched the resident emerge and drive away in his car, and followed the suspected person with a tail car or a police helicopter, we wouldn't find anything particularly unusual about it; when you're out in public you're subject to being observed by law enforcement as well as everyone else.

So in that sense, the GPS is doing nothing more than automating what would previously have required a team of undercover officers to observe - just another instance of modern technology creep. But it means we now gather information on people where we might not have been willing to commit the resources before unless it was serious enough. And there's the issue of where the the line between observation and interference is.

So this seems to create some kind of market for counteracting technology - i.e. something that detects tampering, disables the gps device, or even just those mirrors on wheels with a handle that let you check the underside of your vehicle for foreign bodies. If there's widespread adoption of these kind of things, will the next step be a DMCA like thing where the police use devices that can't be tampered with, without violating some anti-circumvention clause?

Who knows, but your question doesn't seem too far-fetched to me. I could see this speech being given on the House floor...

"Terrorists are known to use surveillance-detection devices. As a result the Department of Homeland Security's efforts to monitor and intercept terrorist activity is obstructed and the American people are in imminent danger.

To protect Americans from terrorism, this new bill would require all vehicles, cell phones, computers, and appliances to contain various types of monitoring devices. These devices will be remotely turned on for monitoring when police believe terrorist activity is taking place.

The benefit of this law is that every device will have the monitoring equipment, thereby rendering detection equipment useless. The terrorists will not know if it is on, and therefore will not know to alter their activities when they are being monitored.

Law abiding Americans have nothing to worry about with this new law. The monitoring equipment will only be turned on with proper government safeguards.

As we all know, if you are not breaking the law you have nothing to worry about.

I am pleased to cast my vote for the "Saving America for Our Children Act" and urge my colleagues to do the same."

You can't see the undercarriage of somebody's car in their driveway from the street nor can you see it flying over in a airplane and there is little doubt that the police would have placed the device in a well hidden place on the car's undercarriage so that it would not be noticed by the owner of the vehicle. So, what they did fails the test you cite. Ergo, an expectation of privacy exists.

The standard for what can be lawfully seen is not written assuming the view of a 6' tall male. A person can lay down on the sidewalk, an area he can freely occupy, and gain a whole new vision of a person's property, including under a vehicle.

I can lay down on a sidewalk so as to achieve a better viewing angle through someone's window to see a poster on a ceiling inside of a house and still not fail the cases that I cited.

As I said in my other posts, I don't agree with the law, but that is the law.

But you're not observing the underside of his car as if peeking up a lady's dress; you're just observing where he goes, which is as old as following footprints in the dirt. The main difference is that GPS vastly increases productivity compared to more conventional methods.

Now I do agree that one does not expect to have tracking devices or anything else covertly attached to one's car, any more than one expects to have the locks picked. But courts take the opposite view. Attaching a device like this to the underside of a car is held not to constitute a trespass, in turn based on Supreme Court rulings that hiding a tracking device inside a container does not violate the 4th amendment - yes, it trespasses on the person's property, but they still have the use of it so no 'seizure' has occurred. http://scholar.google.com/scholar_case?case=1604019454511858...

More troubling to me is the fact that in this case the defendant had not been read his rights after being arrested, and said he felt he had no choice but to consent to a search of his home: http://scholar.google.com/scholar_case?case=9066796837449085...

'seizure' is not the issue. 'search' is the issue.

No it isn't. They're not searching for anything on the underside of his car, either factually or legally. 'Seizure' does not just mean taking something in the legal sense, it can mean altering it to the owner's detriment.

But I don't get it, how can they just walk in you driveway and plant a device on your car? I can find more than just privacy being violated here, they modified his car and added a device to it, how is that not illegal?

A search warrant is needed to inspect an area that you have a reasonable expectation of privacy for. If you don't have a REP, no warrant is needed.

To partake in life we expect people to walk on our property - mailman, paperboy, UPS guy, electric company. Because we freely allow access to our property to these things we cannot claim "privacy!!!!" when it involves the police.

The key here is that the device is on the car, not in it. Search warrant would be needed to put the GPS in the car, or put a microphone in the car. Outside of your car, no REP.

Regarding modification, the court is going to balance police needs and the modification. Placing a magnet to the underside of your car is not considered a substantial modification to the court. Sure, if the cops replaced your rear axle with a GPS equipped rear axl you probably have a good argument. But something as simple as a magnetic GPS on your quarter panel isn't going to get any sympathy from the judge.

I'd say your private property would have reasonable expectation of privacy. Provided your car was parked on private property this would be called trespassing should you enforce and report it. Foregoing REP really only applies to public places (parking lots, parks, the sidewalk, etc.) so I would just check your car.

Don't Fast Passes and the like already do this where possible?

According to the courts, private property does not have an absolute REP. Your definition of REP is not one used by any US court.

Good luck with trespassing claims. Criminal trespass elements are not met, so no luck there. You probably don't have a civil trespass claim, either. Civil trespass is intentionally entering the property of another without justification to do so. The court just affirmed that placing GPS on a car is legal justification to enter the property. So you would lose on the trespass claim.

Of course that assumes it even sees the light of day in court. Civil claims take years to litigate and seeing that no actual monetary damage was done to the car the plaintiff is only entitled to nominal damages, perhaps $25 if he is lucky. Contrast that with thousands of dollars and many hours to litigate and this case is clearly a money losing proposition.

I am not saying I agree with it. This is just the current affairs in the US legal system.

Also, Fast Passes are RFID transponders. They are activated when you drive through the toll. No GPS is present. Don't forget that you explicitly consented to the placing of the device inside your car.

This issue really is black and white, crystal clear, and very simple. I don't understand all of the legalistic bloviating. It all comes down to one question: What happens to me, a private citizen, if I plant a GPS tracker on a police car?

If the answer is anything other than "nothing," then brand-new police powers are being spun from whole cloth by this (lack of) ruling.

Your last sentence is very loaded.

1. This case wasn't a ruling, nor is it a lack of ruling. It was an instance of a court refusing to re-litigate existing law. That means that it already ruled and does not feel that the law should be changed. Nothing happened here. No new powers can be created by not ruling. By definition nothing happens when refusing to hear a case.

2. Second reason no new powers were created: The 4th Amendment to the US Constitution protects against unreasonable searches and seizures. The 9th Circuit has interpreted GPS to not be an unreasonable search and seizure. Therefore the restriction on government never existed because the Constitution does not protect people against reasonable searches. The police power to install GPS devices on cars was not abolished when the 4th Amendment went into effect 220 years ago. No new powers because the power existed 220 years ago.

Great. So, as an attorney, you're saying that I won't be charged with anything at all, if caught planting tracking devices on police vehicles....? There is definitely a new business opportunity there.

No, and this is important.

1. I am not an attorney. I am not your attorney.

2. I am not giving out legal advice, and nothing that I have said is even considered legal advice.

3. I have no idea what the law is in your jurisdiction because I do not know what jurisdiction you live in, and I most likely do not even know the law in your jurisdiction. There may be statutes specifically proscribing the conduct you describe. You need to research that yourself.

4. Nothing I wrote implies a person won't be charged with placing devices on police vehicles. I only commented on laws pertaining to police placing GPS devices on cars in open driveways in California through August 25, 2010.

More importantly, depending on the USE of the devices (I assume for tracking the movements of police cars), you might be nailed for obstruction or something other than 'trespass'.

The argument can be made that you can simply follow the police cars around and see them on public streets when they pull out of the police HQ - but that may be considered harassment or some other crime.