criteria which is their invasion of privacy, are you obtaining information that a person had a reasonable expectation to be kept private? i think that was wrong. i don't think that was the original meaning of the fourth amendment but it has been around for so long we won't overruled that. however, it is one thing to at that privacy concept to the fourth amendment as it originally existed and it is quite something else to use that concept to narrow the fourth amendment from what it originally meant and it seems to me that when that device is installed against the will of the owner of the car on the car that is unquestionably -- thereby rendering the owner of the car and secure in his effect. the caller is one of his effects against unreasonable search and seizure. it is attached to the car

against his will and it is a search because it obtains the location of that car from their forward. isn't that correct? do you deny that it is a trespass? >> it may be a technical trespass but it was equally a technical trespass in united states v. karo when the can of ether was transferred to somebody that had a radio -- >> but the owner of the canada tiger woods installed consented. that is not this case. there is no consent by the owner of the property to which this was a fixed. it was done surreptitiously. >> there was no consent to the owner of a can once he acquired it to have it contain a fortnight and installed by the government. >> that doesn't make a stress test. >> maybe a sneaky thing to do but every sneaky thing is not a trespass. this court -- it made no difference because the purpose of the fourth amendment is to

protect privacy interests and meaningful interferences, not to cover all technical trespass. at the court -- >> the privacy rationale doesn't expand but never as in some respects. >> it changes it. the case that clearly illustrates the distinction between trespass and fourth amendment protection is all of their versus united states. oliver versus united states. police committed trespass' under local law. they ignored no trespassing signs. this court held the interests protected by trespass a distinct from the interests protected -- >> but the rationale of that case was it was not an unreasonable -- >> the rationale was there was no search. open field, the things that are

protected by the fourth amendment and the court was specifically focused on the distinction between trespass and fourth amendment. >> you think there were also not be a search if you put a gps device on all of our cars monitoring for months. you think you are entitled to do that under your theory? >> justices of this court? [laughter] >> under this court's cases the justice of this court when driving on public roadways have no greater expectation. >> your answer is yes. you put gps device on every one of our cars and for a month, no problem. >> equally if the fbi wanted to put surveillance agents around the clock on any individual and follow the individual's movement as they went around on public streets and thereby -- >> that goes against what is really involved, the issue

whether there's technical trespass or not is potentially ground for deciding this particular case but seems to me the heart of the problem is presented by this case and will be presented by other cases involving new technology, in the pre computer pre internet age most of the privacy people enjoyed was not the result of legal protection or constitutional protection but results simply of the difficulty of travelling around and gathering of information. but with computers it is so simple to amass enormous amounts of information about people that consists of thing that could have been observed on the streets. information that was made available to the public. if this case is decided on the ground there was technical trespass are don't have much doubt that in the near future it will be possible. i think it is possible now for law enforcement to monitor people's movements on public

streets without committing technical trespass. do we just say that nothing has changed so the all the information people exposed to the public is fair game? there is no search or seizure when that is obtained because there's no reasonable expectation of privacy but isn't there a real change in this regard? >> i don't think there's a dramatic change in this case from what went on in the karo and knotts cases. there are broader renters in technology that will allow more public information to be amassed and put into computer systems but the remedy for that if this court agrees with the principles in knotts and karo the remedy is through legislation just as when the courts held that they couldn't register data. all the numbers dialed on your telephone and links at the time

of the coal. the court was confronted with justice stewart's view. >> in the -- is essentially a i think you answered the question. this would mean that any of us could be monitored whenever we need a home. the only thing that is secure is the home. that is the end point of your argument. as long as it is inside the house it is okay. >> we are talking about monitoring someone's movements in public, not monitoring conversations or telephone calls leaders the interior of their cars or private letters or packages. there's fourth amendment

protection -- >> the question i think people are driving at is and does certainly share the concern, if you win this case there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the united states. the difference between the monitoring and what happened in the past is memory of hon.. computers aren't. no one -- at least very rarely -- sense human beings to follow 24 hours a day. on occasion yes but with machines you can. so if you win you suddenly produce what sounds like 1984. they have an interest in dramatizing that but maybe overly. it still sounds like it and so what protection is there if any

once we accept the review of the case from this sleet futuristic scenario that justin painted in a brief? >> this was presented to the court in knotts. in 1983 the beeper technology seemed extraordinarily advanced and there was potential for it to be used -- >> that is true. they do have a limit. in this case they say knotts and all the single journey or involve more journeys. let's say involved four journeys in two days. this involved every journey for a month. they say whatever the line is that is going to protect us, it is short of every journey and a month. i accept your point. what do you say is the limit? >> i first want to address the

suggestion that you could draw a line between a month and a trip and have a workable standards for police officers to use. police officers use a variety of investigative techniques which in the aggregate produce an enormous amount of information looking at financial rectors and conduct visual surveillance. under a principle of law that says one trick is okay but 30 trips is not there is absolutely no guidance for law-enforcement. >> there is the same kind of guidance you have in any case that uses the technique which is used sometimes. i think it is used in bribing the judge case with campaign contributions. you draw an outer limits so you can't go beyond that. we know there is no standard. we leave it for the lower courts to work out and we will review it over time. that is not necessarily desirable but that is a method this court sometimes uses. even if it is wrong on want to

know you saying there is no limit or are you suggesting one? >> i am suggesting the court did the same thing it did in knotts. this does not involve 24-hour surveillance of every citizen of the united states. following one suspected drug dealer after whom there was very strong suspicion for period of time that actually is less than a month because the beeper technology failed. >> you are moving away from -- your argument is it does not depend on how much suspicion you have origen it is. you can do it period. you don't have to give any reason. doesn't have to be limited in any way. >> that is correct. >> is it the normal way in this situation that we draw these limits on how intrusive the certainty and how long it can be by having a magistrate stalin it out in a warrant? >> when you are talking note movements of a car on a public roadway, it could be monitored for a day or four days, there is

no fourth amendment search. >> talking about the difference between seeing a little thailand seeing a mosaic. one gives you information and the other doesn't. >> so the the pen register or garbage pole or looking at everybody's credit card statement for a month. are those things this court has held are not -- >> we started out with a warrant. it was a warrant. the limits were not followed. do this in ten days and 11. supposed to do it in d.c. and maryland. they could have gotten permission to conduct this search. i take it that the practice had been in the electronic surveillance manual. to get a warrant. was there any problem when this

kind of surveillance is wanted by the government, getting a warrant when they found difficulty getting warrants. >> in this case there would not have been difficult getting a warrant to. the warrant authorized things beyond monitoring the car. unauthorized entering the car in order to install it which was not necessary here. authorized monitoring the car in any location there was reasonable expectation of privacy. this case is only about monitoring a car on a public street but it is important to keep in mind the principal of using the surveillance is when the police have not yet acquired probable cause but have a situation that does call for monitoring. i would like to give an example. if the police get an anonymous phone call that a bomb threat is going to be carried out at a mosque by people who work at a small company, the bomb threat on an anonymous call will not provide suspicion under this

court's decision in florida versus j l but you can hardly expect the fbi to ignore a credible detailed sounding piece of information like that. >> an anonymous tip that there is the same bomb in somebody's house you get a warrant or just go in? >> you do neither. without probable cause you cannot -- >> why are you asking for different rule in this situation? >> the police in this situation have the traditional means available to investigate. they could put teams of agents on all the individuals who are within the pool of suspicion and follow them 24/7. >> you are now suggesting an answer to justice kennedy's question which is it would be ok to take this computer chip, put it on somebody's overcoat and follow every citizen everywhere they go?

under your theory and the theory espoused in your brief, you could monitor and track every person through their cellphone because to did the smart phone emits signals that police can pick up and used to follow someone anywhere they go. your theory is so long as all of that is being monitored is the movement of the person, they have no reasonable expectation that their possessions will not be used by you? that is the bottom line. >> to invade their sense of integrity in their choices about who they want to see or use their things. >> that goes considerably farther than our position in this case because the opposition is not that courts should overrule united states -- united

states v. karo and permit monitoring and a private residence. that is off-limits absent award or circumstances or probable cause. monitoring an individual through their clothing poses an extremely high likelihood that they will enter a place where they have reasonable expectation -- >> parking garages. it happens here. >> up car parked in a garage does not reasonable expectation of privacy as to its location. >> a person's home and over clothes hung on a hanger. >> once the effect is in the house under karo there is expectation of privacy that it cannot be breached without a warrant and we are not asking the court to overrule. >> what is the difference between this and the general warrant? the fourth amendment historically was the disapproval, the outrage that

our founding fathers experienced with general warneds that permitted police indiscriminately to investigate on the basis of suspicion, not probable cause and to invade every possession the individual had in search of a crime. what is the difference? there is no probable cause or reasonable suspicion. >> a warrant authorizes a search. this authorizes the ability to attract somebody's movement in a car on a public roadway. this court said in knotts that no individual has reasonable expectation of privacy. when they go out in their car their car is traveling on public roads. anyone can look. the police have no obligation to other debt rise. >> i give you that but the

reasonable expectation of privacy trump that fact? if we ask people do you think it violates your right to privacy to have this kind of information acquired and everybody says yes is a response that takes place in public or reasonable expectation of privacy regardless of the fact that it takes place in public? >> it isn't inherently off-limits to a reasonable expectation of privacy. that is holding of katz. go into a fun. , making your call within the phone booth is subject to reasonable expectation of privacy but this court with full awareness of that holding recognized, traveling on the public roadways. >> 30 years ago if you ask people does it violate your privacy to follow deeper, if you

ask people does it violate your right to privacy -- might see that differently. >> they would feel differently about being followed 24/7 by a team of fbi agents to give more information. gps give the approximately location of the car as it drives down the road and speed as well. approximately, location of travel, that is what the gps provides. it doesn't show you where the car stopped. >> pick someone up for speeding when you suspect something far worse but has no probable cause. >> this court held in katz v. united states when they have probable cause to stop someone for a traffic violation they can do that. >> that is when the police came upon the violators. this is all on a computer.

police can say we want to find out more about -- consult the database. and indication of the last 28 days. >> it is not very hard for police to follow somebody and find a traffic violation. to answer justice breyer's concerned about limiting principles this court recognized in that decision that although the fourth amendment is not a restriction on discriminatory are arbitrary or oppressive stops that are based on these characteristics the equal protection clause is. the first amendment stands as a protection if this court believe there is an excessive chill created by an actual loss or universal practice of monitoring people through gps there are other constitutional principles. >> protection against

unreasonable searches and seizures, i try to explain to someone the fourth amendment says it has been interpreted to mean that if i am -- the police want to feel my luggage, that is a violation. and yet this kind of monitoring, installing the gps and monitoring the person's movements is not -- something about it doesn't -- >> i am quite sure that if you ask citizens whether the police can freely pick up their trash for a month and go through it looking for evidence of a crime or keep a record of every telephone call they made for the duration and number that it went through or conduct intensive visual surveillance of that,

citizens would find that to be -- >> probably couldn't start with the other end. what would a democratic society look like if the large number of people did things the government is tracking the movement over long periods of time and once you reject that, you have to have a reason under the fourth amendment and a principal. what i am looking for is the reason and the principle that would reject that but wouldn't also reject 24 hours a day for 28 days. that is what i am listening hard to find. >> two things on that. first of all the line drawings problem the court would create for itself would be intolerable and better that the court should address the so-called 1984

scenarios if they come to pass rather than using this case as a vehicle for doing so. >> the case is not that vehicle. gps technology today is limited only by the cost of the instrument which right now is so small that it wouldn't take that much local budget to place it on every car in the nation. almost as it now. >> it would be virtually impossible to use the kind of tracking devices that read in this case on every one. >> legislatures can stop this -- >> the legislature is a safeguard and if the court believes there needs to be a fourth amendment safeguard as well, we have urged fallback position that the courts adopt reasonable suspicion standard which would allow the police to conduct surveillance of individuals in their movements on public roadways which they can do visually in any event and

would allow the police to investigate tips that arise under circumstances where there is not probable cause. >> who would be judge of reasonable suspicion? >> as in most reasonable suspicion cases the police at the front end and the courts at the back end if there are motions to suppress evidence. fundamentally in the pen register example and financial records example if this court concludes consistent with it earlier cases this is not a search yet all americans find it to be an omen of 1984 congress would stand ready to provide appropriate protection. i will save the rest of my time. >> questions have beaten into your rebuttal time. we will give you the full time. >> made it please the court on want to talk about the one issue the united states didn't talk about which is this is a seizure. the case can be resolved in a

narrow basis. what are the consequences when the police without a warrant install a gps secretly on the car of a citizen of the united states and want to use the evidence gained that way in a criminal trial? opposition is that is a seizure. >> what is the size of this device? >> we learned last week there is gps on the market that waste two oz and is the size of a credit card. how easy will it be for any law enforcement agent to stick one of those on anybody's vehicle. >> with it was put on the license plate? would that be a technical trespass? is that the property of the driver? >> a license plate is the property of the state and drivers are privileged but it is not technical trespass in this particular case. >> i didn't know that.

i don't own license plate? how do you know that. >> we don't need to get into that. [laughter] >> what i am saying is this. the issue in so far as seizure is concerned, everybody agrees antoine jones had the right to control the use of his vehicle. the question is what the interference is. >> i didn't hear an answer to justice alito's question. what is your position on the placement of the gps device on a state-owned license. >> they can't do it. it is a seizure. >> my understanding is it is the state's license plate. they require you to have. your trespass' theory falls apart with respect to that particular scenario. >> first of all, you were

probably seeing the gps -- >> the 5 accredit card. slipping behind license plate. >> in that case what you have done is the distillation of the gps is the seizure. what makes it meaningful is the use. >> you give the state permission to put license plate -- to have your car carry the state's license plate. you do not give anybody's permission to have your car carrier tracking device. whether it is put directly on the car or directly on something that the car is carrying doesn't make a difference. >> i thought it made a difference under your theory which focused on the question of trespass because it would attach to an effect of and by somebody else. this is an effect not owned by the individual. the trespass' theory anyway doesn't seem ridiculous to me. >> it is an effect. the fourth amendment protects

people. you put it on somebody's briefcase or car. you affected that -- >> not sure i quite understand the argument because trespass is accomplished no matter what you put on somebody's, or overcoat or what have you. you put nonworking device in somebody's car and it would still be a trespass but surely the same constitutional problem is not raised. how do you get from trespass to the constitutional problem? >> as i said moments ago what makes it meaningful, meaningful deprivation of a possessed interest is once the gps gets activated. we look at reality. >> doesn't make it a seizure. it makes a surge -- search. you consider trespass for turning information which makes it a surge but i don't see how it is the seizure.

you have to stop the person or stop the vehicle. what has been seized when you slap a tracking device on the car? >> what is seized is -- data is seized created by the gps. antoine jones has a right to control the use of his vehicle. what the government did was surreptitiously deprive him of the use of that. >> case involving seizure of data flow in the air as opposed to papers? >> the closest case would be stalin when that court called a fourth amendment violation when they touched the ventilator unit. >> in addition to research is an unreasonable search. the same is true of seizure. everybody agreed -- what do you care whether there's a case called karo that says weathered the trespassed doesn't really matter. it is the reasonableness of it. you can argue as much as you

want but i still have in mind is it reasonable? and i think that is the question we have been debating and i would like to know from you if what they are saying is we can worry about when it comes up. the police have many people they suspect do what kind of things ranging from kidnapping to lost children to terrorism to all kinds of crimes. they're willing to go as far as reasonable suspicion in a pinch and they say at least with that you will avoid the 1984 scenario and you will allow the police to do their work with doing no more than subjecting the person to really good knowledge of where he is on the open highway. i would appreciate your views on that. >> reasonable suspicion is something that the court has limited intrusions and i refer you to the united states versus place. every ten second of the day

known means a limited intrusion. with that said what happened here is society does not view as reasonable the concept that the united states government has the right to take a device that enables them to engage in pervasive, limitless surveillance that complete -- >> what does it have to be cost free? suppose the police department does two things. put 38 deputies on this route and watch this person or we can have a device with a warrant. what difference does it make? >> what happens is the police have the capacity with gps to engage in grave abuse of individual and group liberties. >> suppose what they got is nothing more than what they would have had if they had 30 deputies staked out along the

route. the same 30 deputies. the constitutional violation. >> any placement of the gps on anybody's car -- >> we are assuming there's no initialed trespass which is a problem in this case. you are saying it is the quantity of the information seized and the time over which it is seized. that is the proposition and it seems to me what you are saying is the police use the most efficient methods. >> we are 1984 ministry of peace. >> your argument seems to me has no principled distinction from the case -- >> we are not asking to make the police less efficient than they were before gps came into

effect. we are saying the use of gps has grave threats of abuse to privacy. people have expectation that their neighbor is not going to use their car to track them. i refer to and one -- antoine jones had control of the car. control of that vehicle meant he had reasonable expectation that society is prepared to view as objectively reasonable that -- >> wouldn't be protected against a surveillance camera that could get information. is this different from the surveillance cameras? >> yes. you have a physical invasion of his possessed interests on placement on the car.

this is more significant -- always reviewed by this court as more invasive than mere visual surveillance. even with a camera in depends on the type of video camera. we are not saying the police are prohibited from having individual video cameras or several video cameras. what we are saying is this device that enables limitless pervasive -- >> what is the difference? i am told if somebody goes to london almost every place that person goes there's a camera so that the police can put together a snapshot of where everybody is all the time. why is this different from that? >> i would not want to live in london -- >> must be unconstitutional if it is scary. the scary provision of what article? >> cameras in london enable them

to track the bomber who was going to blow up the airport in glass go and stop him before he did. there are many people who will say that kind of surveillance is worth while and are others who will say that is a bad thing but that isn't the issue exactly in front of us. >> what we have here is -- >> why not? >> you have physical invasion of property. >> i had that expression. the existence of a physical trespass is only marginally relevant to the question of whether the fourth amendment has been violated. for an action of trespass is neither necessary nor sufficient to establish a constitutional violation. that is karo. you can talk if you like but i would be interested in hearing you on the assumption that the real issue is whether this is reasonable.

>> it is not. in karo the installation was consented. you took the package that came in by virtue of someone looking for the government. the installation was not -- was unlike this case, surreptitious and endangered by a government agent. >> you are mixing two things. you are the one that i thought your position was the initial trespass as a narrow implication to do that so now we ask about karo at you say there was a trespass. that and not a responsive answer. >> the technology is served is dramatically different with gps. >> will be dramatically different. there are satellites that look known and can home in on your home. on the block and a neighborhood. i don't see that future where those cameras will show you the

entire world and let you track somebody on the camera from place to place. give us a theory. is that okay for the police to access those cameras and look at you moving from place to place? if that is okay, then why is this not ok? what is your theory of that? >> with respect to video camera if they are targeting an individual this presents a grave question that leaves out the results given this case but if the court wanted to address that question once the police target somebody they want to engage in individualized targeting for use of a pervasive network of cameras and gps is like a million cameras. >> i think there are 20 states -- >> 28 cameras but the equivalent of a camera tracking new, once

you have individualized -- you have to have a warrant. >> all of this discussion you are going into it but the questioning leading you into it it seems to me leaps over the difficult part of your case. the issue is not in the abstract whether police conduct is unreasonable. the unreasonable noise requirements does not take effect unless there has been a surge and cases that there was no search when you are in public and everything you do is open to the view of people. that is the hard question in the case. not whether this is unreasonable. that is not what the fourth amendment says. the police can't do anything unreasonable. they can do a lot of stuff that is unreasonable without violating the fourth amendment and the protection against that is the legislature.

would you have to establish if you go with katz is there's an invasion of privacy. all this is showing is where the car is going on public streets. where the police could have had round-the-clock surveillance on this individual for a whole month or two months or three months and that would not have violated any thing. there is no invasion of privacy. why is this an invasion of privacy? >> because it is a complete robotic substitute. is not -- the government only cited in its brief one instance of 24-hour surveillance for two days. what you have here is -- >> 100 times zero = zero. if there is no invasion of privacy for one day there is no invasion for 100 days. it may be unreasonable police conduct and we can handle that with was but if there is no invasion of privacy no matter

how many days you do it there is no invasion of privacy. >> gps in your car or anybody's car is like without a warrant is like having -- makes you unable to get rid of an uninvited strangers. that is what it is. >> so the tail. >> the question we have to answer is if they want a tale they conduct resources, that is fine. what gps does is allow the government to engage in unlimited surveillance through a machine robotic we. no one is involved in monitoring. the record showed many times a police officer let the machine go on. >> where would you draw the line. supposed gps was used only to track somebody's movements for 12 hours or three hours. would that be all right? >> our position is no

circumstances should gps be put on somebody's car. >> but the trespass' question. >> our view is the use of the gps as a surge -- search is unreasonable. we suggested in our brief some possibilities. one day, went for it, one person per day or year that the beeper. you physically follow. >> sounds like a legislative line. what is the difference between following somebody for 12 hours and monitoring their movements? you say that the latter -- first argument is a problem with the latter but not the former. what is the reason? >> unreasonable invasion of privacy. >> what is the difference in terms of privacy whether you are followed by a police officer for flowers and don't see the officer or whether you are

monitored by gps? >> what you have here is the human element would be taken out of the surveillance. >> i don't know what society expects and i think is changing. technology is changing people's expectation of privacy. look forward ten years and maybe ten years from now 90% of the population will be using social networking sites and will have on average 500 friends and will have allowed their friends to monitor their location 24 hours a day, 365 day the year through their cellphone. what would the expectation of privacy be? >> there are two with of looking at it as justice kennedy observed. telephone of becoming so ubiquitous that may be privacy interests. argue it is the use of the cellphone is a voluntary act. people understand there are ways to monitor a cellphone.

i start my oral argument with this precept. this case does not require us to decide those issues of the emerging technology. it is a simple case. should the police be allowed surreptitiously to put these proceedings on people's cars and public seizure or a search or search and seizure or fourth amendment -- >> that is a good way to decide the case. when mr. jones already one else would be really upset if they found police sneak up to their car and put an inert device the size of a credit card on the underside of the car what would they say about that? besides the police are wasting money doing this. >> if for nothing more than a note or a bumper sticker -- >> don't even see it. just a little wafer. it does nothing. >> a little weaker with an enormous capacity. >> this one does nothing.

you would bring a trespass action? >> heavens no. if it did nothing -- >> what you are concerned about is not this little thing that is put on your car, not invasion of property interests but the monitoring that takes place. >> the monitoring make it meaningful. >> to ask the question in a different way suppose the police could do this without committing the trespass. suppose in the future all cars are going to have gps tracking systems and the police could hack into such a system without committing the trespass. with the constitutional issue be different? >> i assume manufacturers do it or congress legislated or under either circumstance people would know the privacy rights have been taken away. whether that would be possible to go through congress i seriously doubt but people would know in this particular case antoine jones had no idea

whatsoever that his interest in that property was about to be deprived by the government in a meaningful way to allow them to get information. they couldn't otherwise have gotten. what happens here is gps produces unique data. when we drive down the street we don't emit gps data. what makes it meaningful is the use and placement of the gps device that was in this case not consented to by antoine jones and knowingly and the government knew that which is why they did it surreptitiously because they couldn't get it any other way. >> lots of communities including washington include cameras at intersections and stoplights. suppose the police suspected someone of criminal activity and had the computer capacity to take pictures of all the intersection's he drove through at different times of day and tracked his movements for five days. would that be awful? >> that would be allowable.

>> you think it would be? >> it would be permissible. if you don't have physical intrusion, unlike this case. >> you have a targeted invasion of iraq period of time over a wide space. seems to me you have to answer my question yes to be consistent with what you said earlier. >> etc. earlier you can have an occasional video camera. people understand there may be video cameras in public space. we don't have a society that does not expect to view it as reasonable to have the equivalent of a million video cameras following you everywhere you go. a few video cameras they propped up and been accepted but this was an entirely different color. this was a small device that enables the government to get information of a vast amount. >> what workable rule tendered

to no principal -- tethered to no principal -- 1,000 video cameras may or may not be ok depending how large the city is. >> i think the workable rule and simplest rule that should be adopted is i think the courts should say to law-enforcement agents, we are going to give you a rule. if you want to use gps devices get a warrant under other circumstances are recognized exception to the fourth amendment because of their capacity for collect data you couldn't realistically get because of low cost because of their pervasive nature, you should get a warrant. you must get a warrant any time you're going to attach a gps to its citizens's effect. >> that gets back to justice scalia's question you have to determine that was a search

first. one requirement applies only with respect to searches and seizures. it might seem like a good idea to impose the requirement on this particular technological device you still have to establish it is that surge the research. >> these devices are not used for a quick one of surveillance. there used to track people over time. every ten seconds for 28 days if you know you're going to do that, this device has an amazingly invasive power and capacity. if you know you were going to do that and you're a law enforcement agent -- >> we put your friend to the limits of his theory. your theory would apply if you're going to do it for three minutes. you push a button and it is three minutes. you say that is the fourth

amendment violation. don't talk to me about how long they're doing it or all the information. we have to test the validity of the theory on the proposition it violates the fourth amendment to do this for three minutes. >> i think it does because society does not expect -- >> you said that several times. how do we tell? i don't know what society expects. if you ask people do you think it is a violation of privacy for the police to do this for no reason for a month maybe they would come out one way. if you ask people if you think the police have to have probable cause before they monitor for five minute the movement of somebody they think will set off a bomb you get a different answer. >> you look for a common law and well-established case law and statute, this should be prohibited. >> excellent. yes. the legislature can take care of this whether or not there is an invasion of privacy and they can

pick five days out of the air. can't do it for more than five days or more than 50 people at a time. they can take care of all that. we can't do that in a decision under the fourth amendment. this is precisely the kind of problem you should rely upon legislatures to take care of. >> that is the same problem the united states advanced before this court in united states versus district court. it hello fourth amendment violation and gave congress suggestions. in this particular case i could give you 535 reasons why not to go to congress but let me suggest something. what happened was the united states stopped shifting positions. they came into this court and said we wanted workable rule. either overrule the d.c. circuit which you should not do and give us a workable rule. now they said let's take it to

the legislature. >> take it to congress the other way. can you say that a general search of this kind is not constitutional on the fourth amendment but out a subset thereof, say the terrorism or where there is reasonable cause for special court to issue special kinds of warrants that that is a different question which we could decide at a later time. that is a negative way. that favors you with a result but if there is a way of going to congress to create the situation where they can do it rather than the situations where they can't. >> that was exactly what congress -- what happened when the intelligence surveillance scores were created. all the support has to do is decide the narrow question which i articulated several times. >> to any of congress's business if it is purely intrastate

operation congress can control police practices that don't violate the fourth amendment for robert country. maybe interstate beepers and tracking devices but so long as you track within the state isn't that okay? >> no. let me refer to chief justice frankfurt's comments along time ago. justices are not ignorant of the law. but other legislators will follow congress. what we have here is the case of controversy in which antoine jones's control of his vehicle was usurped and the car was converted into electronic gps transceivers serving the government. that case is here and needs to be decided. when does this address technologies for the court today? wheat could venture down that road and discuss drone surveillance and blue and

surveillance and other types of surveillance. >> there was a warrant in this case. maybe it is irrelevant for present purposes. there was a warrant and the two violations are violations of statutes and a rule. neither of which may carry an exclusionary rule sanctioned with them or a penalty with them. it is not clear there was a violation of the fourth amendment. a little strange we are deciding whether a warrantless search would have been unconstitutional when there was a warrant. >> they had the choice. they could have gone back to the district judge and said -- >> that is not my point. the violation of the ten day rule and the violation of the statutory prohibition or maybe it is in will the prohibition on the judge in the district offering the installation only in the district are not fourth amendment requirements. >> that is correct.

what we have here is a warrantless intrusion. when the warrant -- >> there was a warrant. >> the warrant was not in effect. at the time the gps was placed there was no warrant. >> conceded by both sides and accepted. the warrant expired. there was no warrant. the government could have gone back -- didn't make it. devoe ten more days. >> they could have gone back and explained to the district judge -- >> you will find violation of the ten date will is not a violation of the fourth amendment. the warrant does not necessarily dissolve or evaporates when ten days expire. most cases are wrong. >> there's a 1920 supreme court decision decided during the prohibition era that specifically says when a warrant

expires there is no warrant. when it expires there is no warrant. we have a warrantless intrusion. the government didn't have to do warrantless intrusion. >> mr. dreeben, five minutes. >> advancing technology cuts in two direction. technological advances can make the police more efficient at what they do. some examples that were discussed today. cameras, airplanes, beepers, gps. at the same time technology and power is used can change expectations of privacy. today perhaps gps can be portrayed as the 1984 type invasion but as people use gps in their lives and for other purposes expectations of privacy surrounding our location may also change. >> that seems too much to me. if you think about this and you

think about a little robotic device following you around 24 hours a day any place you go that is not your home, reporting in all your movements to the police to investigative authorities. the notion that we don't have an expectation of privacy and the notion that we don't think our privacy interests would be violated by this robotic device, i am not sure how one could say that. >> the court should decide that case when it comes to. this case does not involve universal surveillance of every member of this court or every member of this society. involve limited surveillance of somebody suspected of drug activity. >> you probably haven't had the opportunity to go into the case. suppose exactly these fact only the police -- the neighbor does it to another neighbor in order to see where that neighbor is

going and when he finds out he told us why another neighbor -- do you think in most states that would be an invasion of privacy? >> i'm willing to assume it might be but i don't think this court measures the leaps and bounds of the fourth amendment by state law invasion of privacy. >> we measure by expectation of privacy and do the katz test that may remain not be controlling. >> the court dealt with a case where california had outlawed taking somebody's garbage and this court said that did not define expectation of privacy. >> it found there was no expectation of privacy. i am asking about this case whether there would be expectation of privacy on a general matter. >> i don't think so. the fact that you have port for a private person doesn't mean it is a problem for the police to do it. in the dow chemical case where the police used epa used cameras for surveillance of industrial

plant there was a claim that would have violated trade secrets law for anybody else to do that. the court accepted that and said towards what doesn't defined boundaries of the fourth amendment. in knotts the court was careful to reserve the possibility of 24-hour surveillance of every citizen in their persons and residentss saying we haven't seen that kind of abuse. of that abuse comes up legislature is best equipped to deal with it if our society regards that as -- >> how many gps devices are being used by federal government agencies and state law-enforcement officials? >> federal government i can speak to in the low thousands annually. not a massive universal use of investigative technique. the fbi requires there be reasonable basis for using gps before it installs it. as the result, this is a

technique that supplements visual surveillance rather than supplant it all together. there was visual surveillance directed at respondents. the gps allowed it to be more effective. as justice kennedy and justice antonin -- scalia conceded that a round-the-clock vigil surveillance with teams of agents would not have invaded expectation of privacy. this court said in knotts that police efficiency has never been equated with police and constitutionality. the fact the gps make it more efficient for the police to put a tail on somebody invades no expectation of privacy than they otherwise would have had. the technology doesn't make something private that was previously public. when we go on in our cars are cars have driver's licenses that we carry. we have license plates on a car. these are for the purpose of identification. >> you don't seriously argue

that there isn't this interest in who put something on your car and a sign of some sort. >> there would probably be a state law possessory interest but there is no seizure for the very reason justice breyer described in the the katz case. this court has said trespass is neither necessary nor sufficient to create a fourth amendment violation. >> the case is submitted. >> welcome to booktv. every weekend beginning at this time here on c-span2. over the next 40 hours we will bring you programs on nonfiction books, authors and the publishing industry. ..