Point & Glick

I finally got around to actu­ally read­ing the deci­sion in State of Wis­con­sin v. Michael Sveum instead of view­ing all the typ­ing heads. (On the blog cir­cuit they’re all typ­ing heads, not talk­ing heads.)
At first glance, I felt that the court came to the dif­fi­cult but cor­rect deci­sion — after all, we do drive in pub­lic. I was going to go my merry way when I real­ized that the deci­sion still both­ered me, so sat back and tried to think it through.

The State claims, and the court affirms, that there was no expec­ta­tion of pri­vacy by the defen­dant since he was dri­ving in a loca­tion vis­i­ble to the gen­eral pub­lic. The court relies on US v. Knotts, 460 U.S. 276 (1983):

A per­son trav­el­ing in an auto­mo­bile on pub­lic thor­ough­fares has no rea­son­able expec­ta­tion of pri­vacy in his move­ments from one place to another. When [one of the defendant’s accom­plices] trav­eled over the pub­lic streets he vol­un­tar­ily con­veyed to any­one who wanted to look the fact that he was trav­el­ing over par­tic­u­lar 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.

… [N]o … expec­ta­tion of pri­vacy extended to the visual obser­va­tion of [the] auto­mo­bile arriv­ing on [the pri­vate] premises after leav­ing a pub­lic high­way, nor to move­ments of objects such as the drum of chlo­ro­form out­side the cabin in the “open fields.”

Visual sur­veil­lance from pub­lic places along [the] route or adjoin­ing Knotts’ premises would have suf­ficed to reveal all of these facts to the police.

Empha­sis added.

That’s fine, but what if he had decided he felt like hav­ing some pri­vacy and drove to the woods to com­mune with nature? What if he was a deeply pri­vate per­son and went out late at night to a bar, expect­ing every­one who would rec­og­nize him to be sleep­ing. Shouldn’t we have the right to expect pri­vacy, despite using pub­lic roads?

The court claims that since the infor­ma­tion would have been avail­able using meth­ods that do not require a war­rant, phys­i­cally attach­ing a GPS unit to your car does not require a war­rant. The court relies on US v. Gar­cia, 474 F.3d 994 (7^th Cir. 2007):

[I]f police fol­low a car around, or observe its route by means of cam­eras mounted on lamp­posts or of satel­lite imag­ing as in Google Earth, there is no search. Well, but the track­ing in this case was by satel­lite. Instead of trans­mit­ting images, the satel­lite trans­mit­ted geo­phys­i­cal coor­di­nates. The only dif­fer­ence is that in the imag­ing case noth­ing touches the vehi­cle, while in the case at hand the track­ing device does. But it is a dis­tinc­tion with­out any prac­ti­cal difference.

Empha­sis added.

Why is there no “prac­ti­cal dif­fer­ence”? When was the last time local police used satel­lites to track an ordi­nary person’s car? Would they really have been able to track Mr. Sveum’s dri­ving activ­ity with­out the phys­i­cal GPS unit?

Like I started with, I see where the court is com­ing from, and I’m famil­iar with the “Bad facts = Bad law” rule. It’s just too rem­i­nis­cent of 1984 for me.

UPDATE
I just read Scott Greenfield’s post about the NY Court of Appeals requir­ing, in a 5–4 major­ity, war­rants for GPS track­ing. Good for New York!
I com­mented there and Scott helped clar­ify my murky con­cerns regard­ing Wisconsin’s decision.