The 'warrant' part is unrelated to the ownership issue of the tracking device. Even if it was used under unlawful circumstances, the FBI remains owner of the device. To take an extreme example, if I throw a brick through your window with a note attached to it 'this brick is owned by jimmy jones and I have no intention of relinquishing ownership', I remain owner of the brick. That I'm liable for the damage caused by it is self-evident. (the note is to preempt a digression into 'apparent abandonment of property' or whatever the exact wording it is in the appropriate jurisdiction)
'Ownership' of something, and 'committing a crime' with that something are orthogonal. Apart from some specifically designated by law items (drugs, weapons), committing a crime with something does not change its ownership status. I don't quite see the controversy here (that is, after one steps back and looks over the 'oh my god! big gubmint is spying on us!' knee-jerk reaction. Let's not forget the kid (from what I gathered...) was apparently connected to organized crime, even if only through blood).
"was apparently connected to organized crime, even if only through blood"
So if you're the son of the local mafia don, from what age should you followed around by the FBI? 18? seems old - there are plenty of child offenders. maybe 10 or so. At what age, having lived a life free from crime, should the FBI stop following you? 25? 30? 40?
Perhaps we could assume people are innocent until we can prove them guilty.
I'm not saying anything about the kid actually being a mobster. I don't think it's unreasonable to say that there may well be reasonable grounds for the feds to track the whereabouts of a child of a mob boss. There is no evidence or even suggestion of all children of all mafia dons being tracked.
As a side note, I quite resent your populist straw man argument.
"Perhaps we could assume people are innocent until we can prove them guilty."
Of course, and how do you do that? Sometimes, by tracking people you have a reasonable suspicion of guilt of, as long as its done through legal means. Let me also point out that the Ninth Circuit ruled last month that warrantless gps tracking is legal. You may oppose this, it's still the (current) law (yes I'm aware that it's a contested issue, and I also don't know what jurisdiction this was in).
The 9th court can repeal gravity, but it doesn't make it law. It merely makes it the opinion of the court.
The law has not changed, and the law is quite clear in requiring a warrant.
The law will not change until the constitution is ammended.
It is very important to recognize that the courts do not create law, and they cannot change the meaning of the law with rulings (otherwise there would be no purpose in having separation of powers.)
That, in effect, they are able to do so, is merely a measure of how lawless the government in this country has become.
But that should be obvious. For instance, the existence of the FBI is unconstitutional, since it is not mentioned as an agency of the federal government in the enumerated powers clause.
Not so. When a court holds something, it is exercising its lawgiving function. The opinion (sometimes referred to as 'dicta') is an explanation for the holding. The latter is basically a statement of views, but the holding itself has legal force. It's true that they are often mixed up, by the public, press, lawyers or even other courts in descending order of frequency; that's why there are higher courts, and even the Supreme Court sometimes reverses a previously held judgment.
The law has not changed, and the law is quite clear in requiring a warrant.
No, it has not changed, but nor is it as clear as you think. We do not know whether or not a warrant was obtained in this case, but current law (as held recently) is that if the car is accessible to the general public, then sticking a tracking device to it does not require a warrant, any more than a stakeout does.
It is very important to recognize that the courts do not create law, and they cannot change the meaning of the law with rulings (otherwise there would be no purpose in having separation of powers.)
This is so, but the courts do have the sole power to decide how the law should be interpreted, should the meaning of the law be unclear. The Constitution (III.2) says that '[t]he judicial Power shall extend to all Cases, in Law and Equity [..and..] the supreme Court shall have appellate Jurisdiction, both as to Law and Fact...'
Jurisdiction means, literally, stating the law. The separation of powers is embodied in this decision-making power of the judicial branch - Congress makes laws, the Executive makes decrees, the Courts make judgments. And that includes judgments about the meaning of the law, which is why the Constitution draws a distinction between 'Law and Fact.' If the courts were only able to evaluate matters of fact, then every dispute over the meaning of law would have to be resolved in Congress, a task which would be hopelessly burdensome.
This is sort of how it works in countries with a civil law system; courts are mainly triers of fact and apply the law without analyzing it in any great detail. But even here they sometimes make adjustments, if errors or contradictions exist which would lead to an absurd result. The United States has a common law framework, which is partly why we still have the notion of judicial 'circuits' (which in the distant past involved judges traveling around and setting up temporary courts called Assizes to judge cases wherever they stopped). Common law is where we get our notions of precedent and the reason we look back to earlier decisions (and the lengthy explanations given for them).
Why can't you find anything about the common law in the constitution? Because it was left to Congress to specify regulations for the Courts. Which they did in the Judiciary Act of 1789, during the first Congress, under President George Washington.
Legislation is always incomplete because it is impossible to anticipate all future situations. By resolving ambiguities and contradiction via an orderly process, Courts can fill in the gap where the legislation does not provide a clear answer. If Congress disapproves of a court's interpretation, then it can and does issue new laws to update or clarify its intent. If it chooses not to, then the Court's holding remains in force; if the public is unhappy with the result, it must elect a Congress which more closely aligns with its opinion.
For instance, the existence of the FBI is unconstitutional
Rubbish! Who told you that? By that logic the Air Force would need to be disbanded immediately, since the Constitution has nothing to say about flying machines or new branches of the military.
Go read Article II, which mentions 'executive Departments' without spelling out what they should be, and 'Officers...whose Appointment is not herein provided for, and which may be established by Law...' - are the departments or offices in question enumerated? No, it's assumed that Congress will create them as it sees fit. And if you think something they do or create is unconstitutional, then you seek the decision of a court, because only courts have the authority to make such determinations. Congress can't certify its own output as constitutional, nor can the executive state its decrees or decisions to be so.
Seriously, if this is your own interpretation then you need to do some more study, or if you got the idea from someone else then you were badly misinformed. the US constitution is the first word of American law, not the last. The idea that if you can't find something in there then it doesn't exist is terribly misguided.
You're a fucking idiot, and a liar. If you had responded to what I actually said, I might have given your arguments consideration.
FWIW, the socialist system you advocate is circling the drain. IT is a race between Europe and the States to see which collapses first, but it is, yet again, proof of the consequences of your immoral ideology.
You've obviously never read the US constitution. So, go fuck yourself.
It is astounding that those so ignorant of the law are so smug about their ignorance. I am not putting forth some random theory, I am pointing out what the law says. It is black letter law.
If you attach it to my property, I just might feel the need to discard it. Good luck suing me for losing your shit. And in the case of a GPS unit I'd be making very sure I discarded it far away from the place where it was last functional.
You (as in you the law enforcement agency) might be in the right to attach stuff to my car, but I as the owner of the vehicle am not responsible if your stuff goes missing in action.
And if you do it without a warrant I'll make sure you have bigger problems.
You (as in you the law enforcement agency) might be in the right to attach stuff to my car, but I as the owner of the vehicle am not responsible if your stuff goes missing in action.
[you are both right, if only you listened to each other]
Version 1 (Jacques): if the GPS tracker disappears and no one can prove that I had anything to do with it, then I'm not liable. True.
Version 2 (Roel): if I destroy the GPS tracker and tell the court that yes, I found it, I knew it wasn't mine, and I destroyed it, then I am liable. True.
"You (as in you the law enforcement agency) might be in the right to attach stuff to my car, but I as the owner of the vehicle am not responsible if your stuff goes missing in action."
Wrong, If the owner of the car on purpose destroys the agencies property, he is legally liable for those damages. How could it not be so? How could the fact that a tool is used unlawfully detract from the ownership? When the agency attaches the tool to the car, there is no transfer of ownership.
Secondly, I'm not sure what you are imagining that the absence of a warrant means, in theoretical and practical terms. In our country, illegally obtained evidence will usually cause at most a small reduction of the sentence. A complete dismissal is quite rare.
> If the owner of the car on purpose destroys the agencies property, he is legally liable for those damages.
Prove it.
> Secondly, I'm not sure what you are imagining that the absence of a warrant means, in theoretical and practical terms. In our country, illegally obtained evidence will usually cause at most a small reduction of the sentence. A complete dismissal is quite rare.
That is a structural problem with your legal system. Besides that, I've done nothing wrong as far as I know (other than maybe dropping your GPS unit on the back of a truck bound for Afghanistan) so much good luck in prosecuting me.
Here (.nl) cases that rely on evidence gathered in illegal means get thrown out with some regularity, even if the rest of it is ironclad.
Not that long ago a bunch of car thieves was apprehended and in a first sitting convicted based on information taken from a license plate scanning experiment. The case was rock solid, except for one little detail, that data should not have been in the hands of the police, so the whole thing was thrown out without a chance for a 'do-over'.
Tainted evidence is the last thing the police here wants in their cases, and throwing out the whole case keeps them sharp.
What? You're the one with the extraordinary claim. I've already repeated several times in this thread that unlawful use of something doesn't change the ownership of that something. Someone who, on purpose, destroys or damages other people's property is held to compensate for it. What's the incredulous part in that?
"That is a structural problem with your legal system."
Well I on purpose used "our", since "my" legal system is also the Dutch one. Also, I'm one paper away from finishing my degree in Dutch law - not to argue by authority, and I'm certainly no expert on criminal procedure, just pointing out that I do have some basic knowledge of Dutch criminal and property law.
Anyway, "Here (.nl) cases that rely on evidence gathered in illegal means get thrown out with some regularity, even if the rest of it is ironclad." is, to put it mildly, open for debate. Sure, blatant violations like fishing expeditions (which was the case in the license plate scanning) will be dismissed. Smaller infractions (like retroactively applying for a warrant) much less. And don't forget that the Dutch 'reasonable suspicion' threshold is quite low. An anonymous phone tip will do. And hey, if that phone call happens to come from a phone booth across the street from the police station, who cares.
> What? You're the one with the extraordinary claim. I've already repeated several times in this thread that unlawful use of something doesn't change the ownership of that something.
No extraordinary claim involved, prove that I'm the one that 'illegally disposed' of your or someone else's property that you attached surreptitiously to my car.
I'm not claiming I own it, I'm just making the point that if I destroy something that I'm not supposed to even know I've got then I don't need to prove that I own it, I can just conveniently lose it or destroy it in a way that would make it very difficult for you to prove that I did so. If only because you'd have to prove my possessing it in the first place, which does not mesh well with a device attached to follow my whereabouts in an unobtrusive way. Unless you plan on sticking a watch team with cameras on me as well, but in that case you wouldn't need a GPS unit.
A GPS unit is basically a way to track someone without further surveillance.
> "That is a structural problem with your legal system."
> Well I on purpose used "our", since "my" legal system is also the Dutch one.
Ok, so that makes it a funny situation then, two Dutch people arguing US law, personally I wouldn't have any compunction dealing with such a device in a very destructive manner on the premise that I don't know who does own it and if someone 'loses' their stuff under my car they only have themselves to blame if it gets lost or damaged.
> Also, I'm one paper away from finishing my degree in Dutch law - not to argue by authority
No, but you do mention that to bolster your argument.
> and I'm certainly no expert on criminal procedure, just pointing out that I do have some basic knowledge of Dutch criminal and property law.
So do I. So what. Transfer of property requires in most cases a consent on behalf of both parties and preferably a bill of sale or a deed of gifting. Other than that ownership is a pretty murky business from a legal point of view, I could make the case that if you attach something to my car that I assume possession of it, and if you don't agree with that you'd have to sue me. But first you'd have to get me to agree that I acknowledge that the device was there in the first place, but my whole argument rests on the fact that I have absolutely no intention to do so.
So the proof that I had your goods in my possession would have to come from you, and that might be a very difficult thing to do. After all, if I didn't know about it but you and your buddies did then why should I be the one to be held responsible for loss, damage or theft by some unknown third party.
> Smaller infractions (like retroactively applying for a warrant) much less.
Cite a case please, and name the defendants lawyer, that way I can be sure to avoid them.
retro-active warrants are very much frowned upon here, prosecuting party would have to meet pretty stringent levels of proof that there was an element of speed involved of such magnitude that the normal procedure could not be followed. In any case a competent lawyer will use that to his advantage.
> And don't forget that the Dutch 'reasonable suspicion' threshold is quite low. An anonymous phone tip will do. And hey, if that phone call happens to come from a phone booth across the street from the police station, who cares.
I agree that anonymous tips are not good enough to meet the standard, but from what I've seen of the Dutch legal system the police is not in a habit of going across the street phoning in illegally obtained evidence in order to 'launder' it.
If you have any evidence to the contrary then I'll accept that as incidental, not as structural. In other words, no doubt that there have been such cases but I do not feel that this is a thing that happens with great regularity, and I would hope for those cases where it did happen to be exposed and the responsible police officers to be removed from service.
"prove that I'm the one that 'illegally disposed' of your or someone else's property that you attached surreptitiously to my car."
Ok then I misunderstood your remark, I thought you meant I had to prove "he is legally liable for those damages". But yeah if you turn it into a matter of evidence, anything goes, it becomes purely based on the specific circumstances. I was arguing the theoretical fundamentals.
"ownership is a pretty murky business from a legal point of view"
Eh no it's not. Transferring ownership is very widely studied, specified and understood. There is no discussion that the tracked subject doesn't get ownership. He does get possession, obviously. Nobody would argue otherwise. Again, if you bend this into an evidence case, all bets are off. In the concrete case the guy posted a picture of himself holding the device on the web. All the armchair lawyers saying 'oh he shouldn't give it back! it's now his!' don't know what they're talking about. I was in my original comment merely pointing out that this guy has no leg to stand on - he should just return the thing to the feds (well, he did) and save himself a lot of trouble.
"Cite a case please, and name the defendants lawyer,"
You can find the names of the lawyers in the various instances in the history of judgments.
These are just the cases where the judgments have been published, and where they were explicitly mentioned in the case. Also cases are only published when they have legal relevance, routine cases are not (they're not even written up if there's no appeal). Obviously most of these cases are handled 'behind the scenes'. Nobody ever knows that not everything went 100% 'by the book'. One case where (part of the) evidence was thrown out was when the police picked a guy up from work, threatened him, bullied him into silence after he repeatedly asked for a warrant, entered his house (without a warrant) through the neighbor's balcony, cuffed the suspect and threatened him and his mom to arrest him until he gave permission to search the house. This is about how bad it needs to get before evidence is excluded. I have no reason to believe these policemen were sanctioned.
"the police is not in a habit of going across the street phoning in illegally obtained evidence in order to 'launder' it."
Well it's all hearsay from here on, so we can go 'yes!' 'no!' for hours. I do think though you remember the IRT case; that's only 15 years ago! Also read accounts like http://www.koudbloed.nl/content/docs/robzijlstra.pdf.
Like I said, from here on it's no longer based on verifiable facts, not worth the trouble. I do think you have a too rosy picture of the practical workings of the justice system, though (note that I'm not making a moral judgment; I think overall it works pretty well. I'm just saying that it ain't like on Law and Order).
This is true, but if someone places something on your car, I'm not sure they can have a reasonable expectation that they will receive it back in one piece. It is reasonable that if someone found a GPS device attached to their car that they would want to remove it.
If I placed something under your car, why would I assume that I'd be able to retrieve it back again? It could become dislodged. You could have hit a bad pot hole and it fell out. It could have been disabled by going through a car wash.
It would still be the agency's property; however, I wouldn't be liable for anything that happened to it.
Correction: guy's family wasn't organized crime, I misremembered - father was a Muslim leader. No mention of what that entails more specifically. Still without knowing more it does seriously detract from that part of my point.
There is something about the tone of what you just wrote that deeply annoys me. Had the boys father been a Christian leader would you have been concerned by what exactly that entails?
If the father had been a Westboro Baptist Church or Branch Davidian style sect leader? Of course. We don't know what happened. For the guy to post to Reddit starting off with a 'look I'm being investigated because I'm Arab! FBI is racist!' post while not giving any information on the circumstances, that just sounds like a PR spin.
I don't know about this, Muslim leader could mean anything from successful business man to radical leader. The news was sparse on who the father was. And frankly, nothing in the article shows that his father was the reason they followed him. The article states that one of his friends wrote something on his blog. I wouldn't put it pass the FBI to investigate everyone who knew the friend in question for no other reason than they play halo together.
I guess it's a matter of interpretation, but when someone says 'Muslim leader', I personally interpret that narrowly, as in this person having a 'position of authority in the religious sense, within the Muslim faith', and not so much 'person from Muslim cultural background who is in some form of power'. The 'article' I mentioned was the original Reddit post. Apparently the kid thought the Muslim angle was important enough to deserve a mention.
Did you know that, when David Koresh discovered the ATF was asking about him and asked about him at the gun store where he did business, he proactively called the local ATF office and offered to come in and have a chat with them?
Koresh was not hiding anything. This is why he, and all the men, women and children, in there had to be killed at the end of that siege. So that these facts would not be made publicly known.
You talk about "Branch Dividian style sect" and most americans have a completely false perspective on those people and that event because they were fed government lies during the entire period.
And afterwards, when the truth came out, it was no longer news.
Enough of that, and you start thinking that it is ok to illegally spy on americans.
"Muslim Community Association" is what was mentioned in the article. A paragraph explaining the organization and it's activities would have helped. Maybe a link to it's website and profile pages for its board of directors. Just to be sure. I'm being sarcastic if you couldn't tell. I think the description is detailed enough for a newspaper article that is not focused on the organization.
This frustrates me as well. I hope the ACLU challenges this.
Challenges what? The warrantless gps tracking, or the feds wanting their equipment back? Because it's that second point I originally responded to, and that's (imo) a quite clear case and not a civil liberties issue.
'Ownership' of something, and 'committing a crime' with that something are orthogonal. Apart from some specifically designated by law items (drugs, weapons), committing a crime with something does not change its ownership status. I don't quite see the controversy here (that is, after one steps back and looks over the 'oh my god! big gubmint is spying on us!' knee-jerk reaction. Let's not forget the kid (from what I gathered...) was apparently connected to organized crime, even if only through blood).