Mark is an attorney for the Justice Department. Lee is an attorney for the Electronic Frontier Foundation. Here's the 1983 Knotts case that both of them mention: http://laws.findlaw.com/us/460/276.html -Declan --- Subject: Re: FC: Cops don't need warrants to bug vehicles, Nevada high court To: declanat_private Date: Sat, 27 Apr 2002 10:28:36 -0400 (EDT) From: "Mark Eckenwiler" <eckat_private> In-Reply-To: <5.1.0.14.0.20020427004920.0232f7b0at_private> from "Declan McCullagh" at Apr 27, 2002 01:36:47 AM Declan McCullagh writes: + + The Nevada Supreme Court has said police may plant tracking devices on or + underneath people's cars without a search warrant. The decision is here: + [snip] + This is a disturbing decision. It refuses to acknowledge what most + Americans consider to be commonsense privacy rights. But it is not the + first of its kind. Indeed not. In fact, it flows logically from the Supreme Court's decisions years ago in two transponder cases (Knotts and Karo), where the court said that privacy rights are implicated only if the device tells you about the status/activity of persons or objects that you couldn't observe publicly. Since the police do not need a warrant to tail your car, the court reasoned, the same rule applies to use of a bumper beeper. OTOH, if the beeper is in a can of chemical precursor (ether, say) and only goes off when the can is opened (say, inside a private house), that implicates a Fourth Amendment interest. (Note, BTW, that the Knotts opinion expressly declines -- in a footnote -- to answer the question of whether the Fourth Amendment requires probable cause or the lesser showing of reasonable suspicion in order to overcome the privacy interest.) -- Sold by weight, not by volume. Some settling of contents may have occurred during shipment and handling. Mark Eckenwiler eckat_private --- [To answer Lee's question betlow, I mentioned the Ninth Circuit's decision since it dealt with the same technology and was explicitly cited by the Nevada Supreme Court ("We agree with the analysis employed by the Ninth Circuit Court of Appeals..."). --Declan] --- Date: Sat, 27 Apr 2002 09:18:27 -0700 From: Lee Tien <tienat_private> Subject: Re: FC: Cops don't need warrants to bug vehicles, Nevada high court says To: Declan McCullagh <declanat_private> Declan, I don't like this decision either, but why mention the Ninth Circuit on an issue of Fourth Amendment law that the U.S. Supreme Court pretty much decided almost 20 years ago? (Unlike a federal appeals court, state courts interpreting their own constitutional guarantees can differ with the U.S. Supreme Court, so Nevada has no excuse.) In United States v. Knotts, 460 U.S. 276 (1983), the Supreme Court upheld the warrantless monitoring of a beeper (hidden in a can) placed into a car without the occupants' knowledge and used to track them over about 100 miles. Police both visually tracked the car and monitored the beeper, then "lost" the car because of the driver's evasive maneuvers -- but although even the beeper signal was lost for a time, it was later picked up. In the words of Chief Justice Rehnquist: "In this case, a beeper was placed in a five-gallon drum containing chloroform purchased by one of respondent's codefendants. By monitoring the progress of a car carrying the chloroform Minnesota law enforcement agents were able to trace the can of chloroform from its place of purchase in Minneapolis, Minn., to respondent's secluded cabin near Shell Lake, Wis. The issue presented by the case is whether such use of a beeper violated respondent's rights secured by the Fourth Amendment to the United States Constitution." He goes on to say: "A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When Petschen traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular [460 U.S. 276, 282] roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property." And: "Visual surveillance from public places along Petschen's route or adjoining Knotts' premises would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but also on the use of the beeper to signal the presence of Petschen's automobile to the police receiver, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case." IMHO, Knotts is bad law. A short but sharp (and eminently readable) criticism of Knotts (and other "in public" cases) is in Wayne LaFave, THE FORGOTTEN MOTTO OF OBSTA PRINCIPIIS IN FOURTH AMENDMENT JURISPRUDENCE, 28 Ariz. L. Rev. 291 (1985). --- ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. 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