08-30-2010, 01:56 AM
As with almost everything in the law, there are complex questions about where the line is to be drawn. Different courts and different justices will draw it in different places, with different tests. The Supremes could no doubt clear it up with a direct ruling to set precedent, and the Congress could go further by making the right to privacy explicit in the Constitution. But, until that day, there is a blurry zone where one might be able to expect privacy, and where not, based on the "common sense" of whatever justice presides.
As noted in Maynard v. US, the issue is not just constitutional - many states have passed laws against electronically tracking. There may not be a right not to be followed, but there is no right to follow someone, either. Both are susceptible to legislation.
Interestingly, in this case, it is the 9th that is arguing for the traditionally 'conservative' reading of the constitution, with a sharply restricted right to privacy and ample powers for law enforcement, and the DC circuit arguing for the 'liberal' position of restraint in surveillance and respect for privacy. Since neither court has any authority above the other, we can only wait for the Supremes to have their say. I would rather see much less discretion in the hands of law enforcement for surveillance - but whether that follows from the constitution is an entirely different matter.
Last, a court only rules on what is argued. If the defence in Pineda-Morano only made the argument that he had an expectation of privacy because of the location of his car, and not because of the extended nature of the surveillance, then that is the issue the judge will rule on. It is the role of the attorney, and not the judge, to find solid defences for the accused.
-Jester
As noted in Maynard v. US, the issue is not just constitutional - many states have passed laws against electronically tracking. There may not be a right not to be followed, but there is no right to follow someone, either. Both are susceptible to legislation.
Interestingly, in this case, it is the 9th that is arguing for the traditionally 'conservative' reading of the constitution, with a sharply restricted right to privacy and ample powers for law enforcement, and the DC circuit arguing for the 'liberal' position of restraint in surveillance and respect for privacy. Since neither court has any authority above the other, we can only wait for the Supremes to have their say. I would rather see much less discretion in the hands of law enforcement for surveillance - but whether that follows from the constitution is an entirely different matter.
Last, a court only rules on what is argued. If the defence in Pineda-Morano only made the argument that he had an expectation of privacy because of the location of his car, and not because of the extended nature of the surveillance, then that is the issue the judge will rule on. It is the role of the attorney, and not the judge, to find solid defences for the accused.
-Jester