THE DARK SIDE: Predictions from a simple provincial lawyer

By: David Ziemer, [email protected]//October 4, 2011//

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Yesterday was the First Monday in October, established by 28 U.S.C. sec. 2, as the beginning of a new term of the U.S. Supreme Court (not to mention a rather lousy play from back in the 1970s).

It’s also the impetus for a lot of so-called legal experts to make bold and sweeping predictions about what the coming term will bring. But I’m no expert. I’m just a simple provincial lawyer, so I’m only going to make two simple, provincial predictions:

First, there will be no restoration of our fundamental right to liberty of contract. After the right to life itself, and the right to self-defense, there can be no more fundamental human right in the world than the right to work and to trade the fruits of one’s labor for the fruits of another’s labor.

Yet, somehow, the U.S. Supreme Court will do nothing to the restore that right and will continue to abdicate its responsibility to protect the right.

Second, the Court will hold that police need a warrant to attach a GPS device to a motor vehicle.

U.S. v. Jones, No. 10-1259, is scheduled for oral arguments Nov. 8. In essence, the issue is whether attaching a GPS device to a vehicle and tracking it constitutes a seizure or a search, respectively.

Last term, the Wisconsin Supreme Court declined to issue a ruling on that issue, assuming arguendo that it did, because, in the case in question, the police did obtain a warrant.

But like I said, I predict the U.S. Supreme Court will hold that a warrant is required and will do so, not because tracking the vehicle is a search, but because attaching the device in the first place is a seizure.

Legal scholars have proposed a number of “models” for deciding when an action is a search or a seizure: the probabilistic model; the private test model; the positive law model; the policy model; etc.

But the Ziemer model is much easier to apply than any of them, and more likely to reach the correct result. The Ziemer model simply asks: If you found a strange civilian doing the same thing, would you give him a beat down?

Consider infrared monitoring of your home, found to be a search in the Kyllo case a few years back. Imagine if you came home one night and found a stranger monitoring your home with such a device, and you asked him what he was doing. You ask him what he sees and replies, “Not much, just watching your daughter.” You’d smash his little infrared device on the ground and beat him up on the spot. That’s why infrared monitoring requires a warrant.

Now consider the case of garbage left at the curb for pickup the next morning. The Court has held that going through the garbage is not a search. This is a logical result, applying the Ziemer model. I don’t care if someone goes through my garbage once I take it to the curb.

A couple years ago, I decided I was no longer going to use my woods when I went golfing, so I took them to the curb. Before the garbage men could take them the next morning, some civilian already had. I hope he found them more useful than I ever did. And if I’d been staring out the window when he came by and grabbed them, I would not have beat him up. I’d have encouraged him, saying, “I hope you find them more useful than I ever did.”

Now apply the test to GPS monitoring. Suppose you’re walking out of Starbucks or McDonald’s one day, and you see some stranger fiddling with your Buick. You ask him what he’s doing, and he says he’s attaching a GPS device to it, so he can track your every movement.

You’d do the same thing you would to the guy with the infrared device. You’d smash the GPS device on the ground and give him a good beating.

I highly doubt that the Supreme Court will use this particular methodology in deciding whether it is a seizure to attach a GPS device to a car. But I’ll wager a latte and a Quarter Pounder with cheese that whatever methodology they do employ reaches the same result.

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