Privacy in Public Places: Does
GPS Surveillance Provide a
Plain View?
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Prof. Mark Tunick
GPS Surveillance
Uses of GPS without search warrant
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To catch serial burglar (State v. Scott, 2006)
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To catch murderer who drove to location of
buried body (Washington v Jackson, 2003)
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To catch drug traffickers (numerous cases
from 1999-2007)
Recent Court opinions on GPS
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Allowed:
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US v McIver, 186 F.3d 1119 (1999)—drug case
US v Moran, 349 F. Supp. 2d 425 (2005)—drug case
US v Jones, 451 F. Supp. 2d 71 (2006)—drug case
US v Garcia, 474 F.3d 994 (7th Cir. 2007); cert. denied Oct.
1, 2007—drug case
Exceptions:
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Oregon v Campbell, 759 P. 2d 1040 (1988)—radio tracking,
burglary case)
State of Washington v. Jackson, 76 P.3d. 217 (2003)
(murder case)
Why should we care about privacy?

Being followed is invasive (People v. Sullivan
and stalking)
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What’s the problem if you don’t know you’re
being followed?
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Deceivers and rule-violators have a problem
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Why should innocent people care?
The “I’ve got nothing to hide” argument
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If you aren’t breaking the law, why care if you
are followed or searched?
Hypothetical “divining rod”
Actual examples: dog sniffs; FLIR searches
Innocent people have an interest in privacy
Why is privacy valuable to innocent people?
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Innocent people have secrets too
Without privacy, we will be more restrained
Possible abuses of giving government too
much information: consider a DNA database
4th Amendment

“the right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and
seizures, shall not be violated”

What counts as an unreasonable search?
The Reasonable Expectation of Privacy
(REOP) test of Katz. v. U.S. (1967)

A government search is unreasonable if:
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(1) a search frustrates a subjective
expectation of privacy

(2) and the subjective expectation is one that
society regards as objectively reasonable
When is an expectation of privacy
objectively reasonable?
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John smoking crack in public restroom
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The plain view principle: If information about
ourselves is in plain view or ear shot of anyone
engaged in legitimate means of observation, we
can’t reasonably expect privacy in that
information. Otherwise we can.
Applying the plain view principle: If information about ourselves is
in plain view or ear shot of anyone engaged in legitimate means of observation, we can’t reasonably
expect privacy in that information. Otherwise we can.
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Use of telescopes?
Searches of toilet stalls?
Cordless phone calls?
Quiet conversation in a public place that only a
lip reader could ‘hear’
Searches of garbage?
California v Greenwood (garbage search)
Justice White: “[i]t is common knowledge that plastic
garbage bags left on or at the side of a public street are
readily accessible to animals, children, scavengers,
snoops, and other members of the public. [M]oreover,
respondents placed their refuse at the curb for the
express purpose of conveying it to a third party, the trash
collector, who might himself have sorted through
respondents' trash....”
But is looking through someone’s garbage a “legitimate
means of observation”?
http://www.ncpc.org/cms/cms-upload/prevent/files/McGruff_60_QT%20broadband%20Str.mov
Following a car?--Knotts
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U.S. v. Knotts (1983): police failed with visual
surveillance, so they then used a beeper;
beeper allowed, as car “could have been
observed” by police following the car.
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But is it a legitimate means of observation to
follow a car?
IS GPS Surveillance a “legitimate” means of
observation
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Two criteria for whether a means of
observation is legitimate:
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(1) Is it prevalent?
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Shetland Islands
But: Nazi Germany and Soviet Union
(2) Ought it to be prevalent?
Is GPS use ‘legitimate’?
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Taxi/bus dispatchers
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LoJack/Onstar
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Parents tracking their children
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Car rental companies? (American Car Rental, Inc. v. Comm. of
Consumer Protection, 273 Conn. 296 [2005])
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State laws require disclosure (CA, CO, NH, ME, VA)
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Conclusion: GPS not legitimately used without consent, unless
there is an employer/employee relationship
Is 24x7 dragnet surveillance a “legitimate”
means of inquiry?
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U.S. v. Cuevas-Sanchez (821 F. 2d 248, 5th
Cir.,1987): can’t install video camera atop power
pole to record events in backyard
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U.S. v. Lace (669 F. 2d 46, 1982, Newman’s
concurrence): 24 officers in 8-hour shifts over 3
weeks is a “tremendous invasion”
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Intuition: is it legitimate/normal to be followed by a
stranger? See map of Knotts case
But how can we expect privacy in public
places?
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Whispering in an uncrowded restaurant
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Schulman v. Group W. Productions, Inc. 18
Cal. 4th 200 (1998, tort case) (accident victim
can reasonably expect privacy in her
conversation with medics at accident scene)
Conclusion
GPS is used to “follow us” over days and
weeks (vs. Knotts), and this is more invasive
than being spotted in public
Video cameras in public places
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OK if camera exposes what anyone can see?
What if our movements are tracked?