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posted by Fnord666 on Friday October 12 2018, @12:13PM   Printer-friendly
from the think-different dept.

Arthur T Knackerbracket has found the following story:

A top Homeland Security Investigations official has told a federal court that it remains the agency's policy that officers can install a GPS tracking device on cars entering the United States "without a warrant or individualized suspicion" for up to 48 hours.

There is no such time limit, HSI Assistant Director Matthew C. Allen also told the court, for putting such trackers on "airplane, commercial vehicles, and semi-tractor trailers, which has a significantly reduced expectation of privacy in the location of their vehicles."

Such an assertion comes over a month after a federal judge recently told the Department of Justice that such a practice—at least in one drug-trafficking case—is unconstitutional. His decision is based on a landmark 2012 Supreme Court ruling involving GPS tracking, known as Jones.

Prosecutors had claimed that installing such a tracker was valid under the "border doctrine" exception to the Fourth Amendment, which finds that limited, warrantless searches at the border are allowed. US District Judge Jesus G. Bernal disagreed in an August 24, 2018 ruling.

Allen continued, saying that HSI believes that its policy is "consistent" with both the Jones decision and a case from 2004 case known as Flores-Montano. In that instance, the Supreme Court ruled that there is a "diminished" expectation of privacy at the border.

Legal experts find this newly disclosed HSI policy to be troubling.

"It is hard to square with the [Supreme] Court's decision in Jones," wrote Michael Price, an attorney with the National Association of Criminal Defense Lawyers, in an email to Ars.

[...] Government lawyers have asked Judge Bernal to amend his August 24 order simply to include that the FBI agent and Los Angeles Police Department officer involved in the arrest should not be reprimanded for what turned out to be bad legal advice.

On Friday, Steven Gruel and Marilyn Bednarski, attorneys for the defendants, filed a motion to the court, arguing against the government's position.

"If the federal government does in fact have such a policy and is training law enforcement agents to act as the policy suggests, which is a violation of the 4th amendment, the government should be deterred and the agencies' internal policies and training should be revealed and scrutinized," they wrote.

The two sides will be back in court on November 5 at 2pm to discuss the matter.

-- submitted from IRC


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  • (Score: 4, Insightful) by bob_super on Friday October 12 2018, @06:23PM (2 children)

    by bob_super (1357) on Friday October 12 2018, @06:23PM (#747994)

    But the constitution applies to all, not just citizens.

    It would be great if US cops stopped acting as if getting a fucking warrant was hard. Especially at the border.
    "Given his background/patterns, we are pretty sure he's cartel, but can't nail him until he meets his contacts" ... signed.

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  • (Score: 3, Funny) by DannyB on Friday October 12 2018, @06:29PM

    by DannyB (5839) Subscriber Badge on Friday October 12 2018, @06:29PM (#747997) Journal

    For the constitution to apply to all it would be necessary to entertain the idea that God gave inalienable rights to people with non-white skin or low economic status.

    --
    People today are educated enough to repeat what they are taught but not to question what they are taught.
  • (Score: 4, Insightful) by All Your Lawn Are Belong To Us on Friday October 12 2018, @08:46PM

    by All Your Lawn Are Belong To Us (6553) on Friday October 12 2018, @08:46PM (#748026) Journal

    I agree with you that the constitution should apply to all persons. Life, liberty, and the pursuit of happiness should be a fundamental right of every person and that which guarantees them should therefore carry as well.

    However, there are already recognized exceptions to requiring a warrant including plain view, hot pursuit, consent, and several varieties of police officer has a "legitimate" suspicion that crime is occurring. In all these cases for one reason or another the expectation of privacy is diminished or absent. None of the amendments are unlimited, although in a perfect world they would be.... but in that case there would be no need to enumerate them, either.

    The court's reasoning (if I understand it and I might not) is that the border is a location where one ought to expect to be searched as a matter of national security. The state has a right to search all persons and property entering the country, sans warrant, for unlawful materials - unless you think foreign intelligence services are really THAT good that they can know who is to mean our country harm. This is amplified by the consideration that there are foreign persons who would intend the United States and its citizens harm.

    Do I like all that? Not particularly. But I can recognize it's an imperfect solution for an imperfect world.

    --
    This sig for rent.