No. 10-1473.

United States Court of Appeals,Seventh Circuit.

Argued September 23,2010.

Decided April 28,2011.



4. Several other courts have considered the distinction and found it to be unimportant. See,e.g.,State v. Sveum, 769 N.W.2d 53,63 (Wis. Ct. App. 2009) (“It is not rational to limit the admission of tracking information based on whether it is obtained in real time by a signal or at a later time by direct access to the device.”),aff’d, 787 N.W.2d 317 (Wis. 2010),cert. denied, 131 S.Ct. 803 (2010);Foltz v. Commonwealth, 698 S.E.2d 281,289-90 (Va. Ct. App. 2010) (“Unlike here,where the GPS system automatically tracked and recorded the movement of the van [in real time],the beeper technology discussed in Knotts required that the police follow the signal from the beeper as the container was moved. We find that this advancement in tracking technology provides an insufficient basis for distinguishing Knotts.“) (internal citation omitted),reh’g en banc granted, 699 S.E.2d 522 (2010).

1. Courts look to doctrine rather than the ordinary meaning of the term “search”to figure out if law enforcement have conducted a search. That may seem odd,but it (ultimately) makes sense. In the founding era,the word meant much the same as it means now. To search meant “[t]o look over or through for the purpose of finding something;to explore;to examine by inspection;as,to search the house for a book;to search the wood for a thief.”Kyllo v. United States, 533 U.S. 27,33 n.1 (2001) (quoting N. Webster,AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 66 (1828) (reprint 6th ed. 1989)). As the majority noted in Kyllo, defining search by reference to doctrine may represent an effort to preserve the presumption that law enforcement obtain a warrant prior to conducting searches. However,applying doctrine to define search has little practical effect—other than frustrating conversations with laypersons. Even if courts looked to the ordinary meaning of the word search to define it,courts would still have to figure out what circumstances demand a search warrant. The Constitution is silent on that point,so exegesis would leave dictionaries dusty and bring us right back to doctrine.

3. Before and after Knotts, individual justices have concluded in essence that the time has come,that the doctrine as implemented inadequately protects privacy in light of technological advances. E.g.,Dow Chem., 476 U.S. at 240 (Powell,J.,concurring in part and dissenting in part) (predicting that the majority’s approach would “permit the gradual decay [of Fourth Amendment rights] as technology advances”);see also Olmstead v. United States, 277 U.S. 438,473 (1928) (Brandeis,J.,dissenting) (observing that technological innovation permits the government to learn what is “whispered in the closet”far more effectively than by means of torture).

5. Maynard does point to a handful of state statutes limiting the use of GPS devices,615 F.3d at 564,and positive law may give rise to a legitimate expectation of privacy,e.g.,Oliver, 466 U.S. at 189 (Marshall,J.,dissenting). The D.C. Circuit,however,was correct to evince caution in relying on these state laws as supporting a societal understanding,both because their number is relatively small and because the case law does not indicate that such statutes will automatically lead to constitutionalized interests in privacy. See Jacobsen, 466 U.S. at 122 n.22 (quoting Rakas, 439 U.S. at 143-44 n.12);Greenwood, 486 U.S. at 55 n.4 (Brennan,J.,dissenting) (suggesting that a statute may reinforce a right to privacy but that the statute and right are not inextricably linked).

Powered By WizardRSS.com | Full Text RSS Feed | Amazon Plugin | Hud Settlement Statement

Comments are closed.