There were two concurring opinions in that case: One was signed by Justices Alito, Ginsburg, Breyer, and Kagan. The other--the one whose quotes you cite--was Justice Sotomayor's alone.
There can't be a "concurring opinion" signed by five Justices. An opinion signed by five Justices is a majority, and would constitute the Opinion of the Court.
I think that the most we can say right now is that although the "plain view" doctrine has been weakened somewhat over the last couple decades, it's not completely dead yet.
The fact is that there hasn't been a case on point to answer the questions as to whether 1/ALPRs constitute a "search" under the Fourth Amendment (a threshold question that must be answered "yes" to proceed further), 2/whether use of the technology can be "reasonable" under any circumstances, and 3/whether there are any exceptions to the warrant requirement. We have a long way to go before we know what the law is on this technology. Remember, too, that the Fourth Amendment has only a "reasonableness" and a warrant requirement. It does not ban technologies for surveillance outright. (See, e.g., Kyllo v. U.S., where the use of thermal surveillance technology wasn't the issue in and of itself, but rather constituted a search necessitating a warrant.)
So how about you tone down the attitude a bit? You're arguing from shaky ground, and there are more constructive ways to contribute to this debate.
Yes you're right. The "signed by five" was a misphrasing on my part.
What I meant is that both the concurring opinions (signed by 5 collectively) agreed on this same point:
> society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark.
So no, I'm not arguing from shaky ground. And no, ample attitude is warranted against people not just advocating for unbounded state surveillance, but insisting that it is already a foregone conclusion.
> What I meant is that both the concurring opinions (signed by 5 collectively) agreed on this same point: [...]
I agree with you that the two concurrences are aligned about this. Interestingly, it did not make it into the majority opinion, even though there was a majority on this point. It probably wasn't included because it wasn't needed in order to reverse the lower court's decision; the physical violation was enough to merit a unanimous decision.
> ample attitude is warranted against people not just advocating for unbounded state surveillance, but insisting that it is already a foregone conclusion.
No, it isn't. It is possible, and better, to disagree with someone while remaining courteous--even on subjects you have strong feelings about.
From our Guidelines:
> Be kind. Don't be snarky. Converse curiously; don't cross-examine. Edit out swipes.
It's actually far more dangerous to presume we are already protected (your position) particularly based on reading tea leaves in flimsy ancillary opinions when the Court has shown itself fully happy to blow precedent out of the water, particularly with regards to privacy rights which are grounded in interpretation of the Constitution and not actual text (see Dobbs).
Obviously not true given that a wannabe dictator would literally say what you are saying ("it's just plain view doctrine! Always been this way! 4th Amendment doesn't prevent me from flying a drone over you to and from your home every day!")
A wannabe dictator, inversely, would not say nor be happy with what I am saying: You have a right to exist as a private individual, even if going out in public would leak vast amounts of information to a drone hovering overhead.
Who said anything about private property? I'm talking about following someone on public streets.
The drone hovers directly over the sidewalk in front of your house. When you step onto the sidewalk, it follows you directly to the front of your workplace. As you go up to the third floor, it hovers up and observes you through the window. As you descend and come back out to the street, it hovers overhead until you arrive back to your home.
It's all plain view doctrine. Not sure what could be ambiguous about this.
The Supreme Court has already held in three cases that air surveillance, even from an altitude as low as 400 feet, does not constitute a search: California v. Ciraolo (1986), Dow Chemical Co. v. United States (1986), and Florida v. Riley (1989).
> society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark.
Altitude has nothing to do with it. Completeness and cost of picture does.
You’re citing that concurrence again. While that concurrence supports your argument, it’s not binding legal precedent. Perhaps someday it will be, but not today.
That “reasonable expectation of privacy” standard is just the first step of the analysis and goes into the threshold question of “is this a search?” Because if the answer is “no,” then there’s nothing more to be done, not a search, no warrant needed. But if the answer is “yes,” that’s not an automatic win, it doesn’t mean a warrant is needed yet, because there are further analytical steps down the chain.
Also, the court has still not subjected the specific question against the Katz test. If they did, they’d might agree that a person has a reasonable expectation of privacy in their public travels. On the other hand, they might not.
I think you should consult a local attorney, because you’re not really understanding what the legal impact of these cases is, and I think a deep discussion with an subject matter expert in person would improve your understanding a lot.
It's fine to realize that you stepped into this conversation wanting to say "this isn't settled law" but somehow positioned yourself as defending the person insisting "this is settled law."
Perhaps your aversion to perceived dickishness made you misread the situation.
fluidcruft is not wrong about this particular point. And even if they were, while you may disagree passionately with the state of the law today, that doesn't give you the right to be a dick to them about their analysis. Knock it off.
1. Yes, they are wrong. For example, Dobbs sat downstream of generations of people perpetuating the idea that the law already bans abortion (under murder statutes) and that the Constitution already prevents the federal government from regulating this area. Regardless of whether that's true or not, what is plainly true is that whenever possible, people prefer to frame their preferred policies as already existing in statute and case law. People saying "Hmm yes, it does" is obviously beneficial to their cause. People saying "Hmm no, it doesn't" are harmful to their cause.
There are cases where it's legitimately ambiguous as to where the law lands and this is one of those areas, but fluidcruft is insisting that it's not. To the extent it's not ambiguous, recent case law, the overarching history of the 4th Amendment literally since its ratification, and common sense all point in the same direction: the government cannot arbitrarily monitor everyone's movements (even in public) at near-zero cost with zero warrant.
2. There's nothing dickish in my prior comment whatsoever.
> It's actually far more dangerous to presume we are already protected (your position) particularly based on reading tea leaves in flimsy ancillary opinions when the Court has shown itself fully happy to blow precedent out of the water, particularly with regards to privacy rights which are grounded in interpretation of the Constitution and not actual text
What’s wrong with this? It’s correct that there’s been no case yet on the legality of warrantless end-to-end surveillance technology, and he’s right that the Constitution has no explicit privacy right. Certainly no lawyer I know would advise their client otherwise, and as an attorney myself, I wouldn’t do it, either.
> There's nothing dickish in my prior comment
When someone tells you you’re being dickish, pay attention and take it seriously. They are giving you valuable feedback about how you are coming across. Even if you don’t intend to be that way, and don’t think you are, others can still see it. You need to take that into consideration.
In this case, saying that a wannabe dictator would use the same argument was pretty dickish, particularly in the context of everything you’ve already said to them. It’s well past the time to lower the temperature of this discussion. Don’t keep it on simmer.
The central claim of the quoted text, and the claim that I'm obviously responding to, is "It's actually far more dangerous to..."
If it were more dangerous to insist that these privacy rights already exist (which they do, at least since Katz), then a wannabe dictator would obviously just insist that these privacy rights exist. But... they obviously wouldn't do that. They'd in fact insist that these rights don't exist, they never have, and they're not in the text of the Constitution.
Referencing the desires of a wannabe dictator is not dickish in the context of a conversation about state surveillance powers. Perhaps you're getting too heated and reading tone into other people's words at this point?
My interpretation of what they said is that it’s dangerous to make the assumption that the 4th Amendment will cause the exclusion of evidence yielded by ALPRs if the question is adjudicated today, based on current law. I agree with this, and as an attorney myself, I would not make this assumption.
> Referencing the desires of a wannabe dictator is not dickish in the context of a conversation about state surveillance powers.
I disagree. Again, it matters less what you think and more what impression you leave, especially in the greater context of everything else you’ve said in this discussion.
I am extremely doubtful the intention of that comment was, "if I were adjudicating a case, my strategy would be X." Obviously your legal strategy wouldn't rest on this assumption. But we're not talking about legal strategies to bring to the courtroom.
By analogy, it is absolutely true that a person has a right to self-defense. People in common dialogue should insist on this being actually true. Does that mean your lawyer should go into a courtroom with the strategy of simply insisting that's the case? No, obviously.
The invocation of Dobbs is clearly referencing a political strategy and not a trial strategy.
I am responding (quite clearly) to the proposed political strategy, while you are reading it as a trial strategy.
The fact that we are reading this differently is an existence proof that there are multiple ways to interpret the conversation and the points being made within. We should be mindful of that and respond accordingly, perhaps asking more questions instead of being combative.
You are the only person who made an assumption (a probably-incorrect one) and then was combative about it. People on general message boards talking about state surveillance powers are not generally crafting trial strategies.
I think between 1 lawyer and 2 laypeople talking about law, it's quite likely the lawyer has the idiosyncratic interpretation. I did not fail to ask a question nor did I insult anyone. You did both.
So the controlling opinion said: "we won't answer this question." The concurring opinion (signed by 5) said "fluidstack is wrong."