Posted on 03/01/2018 9:34:35 AM PST by Theoria
Courts are faulting the search, but allowing the information, as case law lags behind technology
Emilio Jean won his appeal, but he might as well have lost.
Arizona law-enforcement officers violated Mr. Jean’s privacy rights when they rigged a GPS device to a tractor-trailer he was co-piloting and tracked it for three days without a warrant, the state’s highest court ruled in January.
But the Arizona court declined to throw out the illegally obtained evidence, a move that likely would have set Mr. Jean free. Instead, he is serving the rest of his 10-year prison sentence for attempting to haul 2,140 pounds of marijuana into the state.
The digital age has accelerated carve-outs to a concept that most Americans take for granted: that evidence obtained in violation of the Constitution can’t be used against someone. Judges in recent decades have allowed evidence collected with defective warrants, under laws later found to be unconstitutional, or in accordance with court decisions that are later reversed or found to be inapplicable.
These days, most criminal cases involve new surveillance technologyor personal data from smartphones, social-media companies or internet-service providers. The U.S. Supreme Court has held that the government can use illegally obtained evidence gathered by investigators who acted in good faith, following the rules as they saw them at the time. But the rules often lag behind technology.
At the time of Mr. Jean’s arrest, in 2010, no law explicitly gave Arizona police and federal agents the right to “stick a GPS on this truck and monitor it for however long it takes,” said his lawyer, Brad Bransky.
(Excerpt) Read more at wsj.com ...
Don’t commit a major felony and this won’t be an issue in your life.
Sadly, the cases that keep us secure in our rights often involve near do wells. People worry about the second amendment, and rightly so, but the others are quickly being eroded.
“Don’t commit a major felony and this won’t be an issue in your life.”
You are correct but may be singing a different tune when someone comes to search your house or you are forced to testify against yourself. Sadly, the cases that ensure our rights often involve defending the rights of some rather unscrupulous characters. If the government doesn’t play by the rules, why should anyone else? His case should have been tossed.
Hard to shed a tear when real crime is stopped by warrantless invasions of privacy. The old reply I’ve always had is if you aren’t breaking the law, why would you worry about it.
But the supposed slippery slope has already gone way past that. Cases like this don’t point to the real danger. Bagging a large shipment of marijuana isn’t a bad thing. Wire tapping political opponents is. Silencing speech and confiscating implements of self defense, that is where it’s all sliding too
The U.S. Supreme Court has held that the government can use illegally obtained evidence gathered by investigators who acted in good faith,
And who will rescue you from someone’s point of view?
That’s a sucker bet. There are so many laws now days the Feds can get you for anything - unless you are a Democrat.
And if by some miracle they can’t get you, they will make sure you spend every dime you have on lawyers.
Not sure where I come down on this. In one sense, if they were tracking the vehicle’s whereabouts and travels for a couple days, this is no different than having a surveillance investigator or team of investigators follow the vehicle around and document wherever it went. No warrant needed as long as the vehicle was visible from public view. OTOH, I would submit that unknowingly attaching the tracking device to the truck without a warrant could be considered a fifth amendment trap, setting the individual up for self-incrimination.
“I have nothing to hide. I don’t mind if they...”
That is a very dangerous philosophy. Without our constitutional safeguards, we are headed toward Stalinism or Venezuela.
Everybody should view this, at the least, as very disconcerting. Unless you are a statist, a marxist, antifa, a commie, an islamist, etc — any of 1,000 groups that want to control every aspect of your life and eradicate you if you are perceived as a threat to government.
I can’t read the article, so here’s an excerpt from another one:
“Brad Bransky, a deputy Coconino County public defender, argued to the high court that the warrantless use of the GPS made the subsequent stopping of the vehicle and the search illegal, meaning the drugs that were found could not be used to convict his client. The majority agreed with his legal theory but said that, at least for Jean, the conviction stands.”
They really contort themselves to deny the GPS data. He was the driver, he was the one arrested, he was the one convicted, but he wasn’t the owner, so the owner should have been the one to raise the stink. Guilty!
http://caselaw.findlaw.com/az-court-of-appeals/1739837.html
So much for the Fourth Amendment. They just come right out and say that it doesn’t matter.
Well if they have the ability to hack into your cell phone, why did they need to GPS the truck?
Sorry, gather the evidence illegally, not guilty!
They will get to confiscate the dope.
I agree with everything you wrote.
Well, unless you annoy powerful enough Democrats. Though they may opt for killing you rather than just ruining your life.
Don't even start with that BS here. Look on youtube for "policing for profit" before you post on any thread like this again.
Applies to 2ndA as well. Watching RKBA issues for 30 years, I’m irritated at how _little_ has been done via courts, mostly waiting for some thug (flailing for some reason to evade jail) to come by and force the issue in undesirable and unhelpful circumstances. There are precious few Mr. Hellers in this country, willing to go thru the agony of a prolonged to-SCOTUS trial, under perfect conditions (and too many of _those_ are tossed aside for inane pretexts). We really should end this “expensive perfect case” approach (since it’s not being sufficiently pursued) and go after “thousands of cheap imperfect cases” on the statistical expectation that enough pretty good cases will make enough progress in enough jurisdictions with enough variance in outcomes to force SCOTUS to take up the cases for real. Wish someone like NRA-ILA would fund “boilerplate suits” where individuals can walk into court, with minimal/no representation, pay the trivial fees (not to be confused with the insanely $ lawyer fees), get a verdict, and take what we can get and move forward with the result.
My view for these sticky situations is, give those who obtained illegally some kind of punishment (yes, maybe even jail), but KEEP the evidence.
It cracks me up sometimes how something blatant will be discovered for a murder, e.g., yet they’ll throw it out and expect the jury to just magically erase it from their minds when judging the defendant because a rule was subverted.
It’s BS. Instead of tossing evidence, give the cop or witness or whomever some kind of punishment. Hell, jail’s the kind of thing that’s supposed to keep a crime from happening in the first place, right?
So...
1st amendment - I need a govt provided piece of paper to either speak in public, gather with others, get a group together in a building of like mind (especially if the group is above a certain #)
2nd amendment - all sorts of crazy talk the last week
3rd amendment - seems ok....so far, but during the Boston bomber case wasn’t their a policeman that pushed into a house and used a window as a lookout? Maybe I’m mixing it up with a hostage case.
4th amendment - it was all in ‘good faith’ - this article, FISA warrants, lots of similar slippery slope stuff
5th amendment - grand juries I don’t honestly know how well that is going;
double jeopardy - talk to the guys in Washington and Nevada on that one seems they’ve been tried multiple times and held for most of it technicalities or not.
witness against yourself - aren’t they compelling dna provision and forcing fingerprints to unlock phones?
deprived of life, liberty, or property, without due process of law - Sessions and most police seems to be all for property seizure through civil forfeiture; and Trump (though I think he’s posing) just said take their guns without a warrant
private property be taken for public use, without just compensation - Kelo - ‘nuff said
6th Amendment - fair and speedy trial - bikers in Texas almost 2 years now? Washington and Nevada- how long detained prior to a conviction? fair? speedy?
7th amendment - try to request a trial jury on a civil case for ‘exceed twenty dollars’ in most states it’ll likely get you a contempt charge.
8th amendment - excessive fines - failure to buy your obamacare anyone?
9th amendment - I believe the right to privacy falls into this one...the govt is copying all our emails and phone calls as metadata.
10th amendment - usurped with Wickard vs Filburn and the demise of non-interstate commerce.
So where does everything think we are with our nation of constituted states?
If that is to become the law (not saying you so argue) imagine this:
Cameras located on major streets at intervals likely to identify the largest number of traffic law violators with computer initiated citations mailed the same day. If traffic is flowing at 1 mph over the posted speed the entire line is nailed.
Compared with:
Flowing with traffic this morning and passed several non-moving but mobile LEO's "monitoring" conditions.
We here on FR can easily imagine which of the two possibilities an over-active, revenue-needy government would prefer.
You know the government is going to point to cases like this, and even yet, in many places, it’s really about the taxes now not even the marijuana.
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