Bad Fourth Ammendment Decision

Via Valley Fever:

In upholding the conviction of Josue Acosta Marquez, (a.k.a. Martin Contreras-Pulido) in an interstate marijuana smuggling case, the Circuit Court judges wrote that federal agents and Iowa cops did nothing wrong when they planted the electronic monitoring device on a pickup truck used by Marquez while it was parked at a Wal-Mart. Police accessed the unit seven times to change the batteries -- always in a public place -- and tracked the pickup as it drove between Des Moines and Denver.

Since anyone can see a vehicle parked or driving in public places, the use of electronics to enhance surveillance doesn't violate Fourth Amendment rights regarding unreasonable search and seizure, wrote Justices Roger Wollman, James Loken and John Gibson.

No warrant neeeded. And there's nothing stopping cops from planting those suckers as often and wherever they like, says the Eighth Court judges.

First, I have always thought that extended surveillance of a home or moving vehicle, beyond say a few hours, should require a warrant, even if it is all performed in public places.  I think most folks would consider such actions by a private party to be intrusive (thus many state stalking laws) and we generally hold the state to an even tighter standard.

Second, cost is important.  A surveillance approach that is difficult and expensive is less likely to be abused than one that is suddenly 10x or even 100x less expensive.  The judges acknowledge this, but then ignore the problem completely in their statement when they write:

It is imaginable that a police unit could undertake "wholesale surveillance" by attaching such devices to thousands of random cars and then analyzing the volumes of data produced for suspicious patterns of activity. Id. Such an effort, if it ever occurred, would raise different concerns than the ones present here.

Just get a freaking warrant -- its not that hard, especially in this case when we are talking about extended surveillance and no particular rush to get started. This kind of lazy law enforcement has become endemic, and we shouldn't tolerate it.


  1. astonerii:

    I'll agree with you 100% on this.

  2. Roy:

    Correct. We should not *tolerate* this decision. How do we go about *not* tolerating it?

  3. mahtso:

    Two or three years ago, another Circuit, the 7th if I recall correctly, reached the same basic conclusion.

  4. elambend:

    so, if you unwittingly find such a device and remove it, does that, too, become a crime???

  5. Henry Bowman:


    Really, a carefully-crafted Federal law [is such a law possible?] should be enacted to halt such practices. But, Congress has been, shall we say, overly accommodating to the police, so I doubt it will happen anytime soon, if at all.

    I'm not sure that the Feds have the authority to pass such a law, however. If not, we should work the states to get such implemented, but the states have even more reasons (related to revenue) to retain such laws.

    In what I regard as a related issue, in some states (e.g., Illinois, Maryland, & Taxachusetts), it is typically a felony to record (audio or video) a cop, as detailed by Balko.

  6. Michael:

    We now have a bad 5th Amendment decision. You now have to tell the cops you want your rights or they're waved.

  7. Judge Fredd:


    Eh, I don't know about that. At first, I just heard the blurb. When I actually read the details, the suspect screwed up by talking to the police, even after they Mirandized him. It's similar to a SC case where a suspect said, "I think I might want to talk to a lawyer" and yet still spoke to police after saying that. He was convicted and tried to get his statements thrown out. The SC stated that his statement re: "thinking about talking to a lawyer" was not an unequivocal invocation of his rights.

    If you're ever in this situation, LAWYER UP AND DON'T SAY A DAMN THING TO THE POLICE. They are not your friends, and talking to them will probably get you into more trouble.

    I agree with the SC's ruling.

  8. Hasdrubal:

    The good thing about this decision is that its logic should apply in the other direction as well; If the courts say the government can use any technology they like where we have no expectation of privacy, shouldn't citizens have the same right, especially for things like videotaping police?

    If so, this decision can be of some use overturning the laws criminalizing recording police in public:

  9. markm:

    Hasdrubal, did you forget the sarcasm tag, or do you actually think the former prosecutors who become judges will apply the same law to cops as to citizens?