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Join the conversation! There are now 39 comments on this chapter's page 99. Plain Perception. What are your thoughts?
  1. pingo1387 says

    So the “plain view/feel/hear/smell/taste” rule applies if the police are using common tools like binoculars, but not things they’d have to ask their supervisors for, like the thermal imager you mentioned above?

    • Not so much whether they’d have to ask their supervisors for it, but whether or not it’s equipment you’d expect other people besides law enforcement to be using.

      It all goes back to whether you had a legitimate expectation of privacy or not.

      Let’s say you’re operating a chop shop for stolen cars, and you do everything in a big open lot back behind your front business. And because it’s an open lot, anybody can see what you’re doing in there from any nearby building or rooftop. Sure, you’re doing it on your own private property, but you can’t reasonably expect that space to be private, because anyone can see inside it.

      If your chop shop is remote enough that people could only see it if they used binoculars, or some other tool that’s in common use, then you still can’t expect it to be private. You still have to expect that a regular person could see into your lot.

      Because there’s no expectation of privacy, there’s no 4th Amendment search if the police happen to see it in the same way anyone else could have seen it.

      BUT, if your lot was covered over with a metal roof, and the police had to use a high-tech device to tell what was going on under that roof… and that wasn’t a device you’d expect regular people to be using… then you WOULD have a legitimate expectation of privacy, and using that device would count as a search.

        • Just make sure your super-covered chop shop isn’t in the middle of an open field, where there’s an expectation of people walking through it even if it’s fenced and posted No Trespassing.

      • how does this relate with for instance unencrypted wifi?
        when arguing this case i pointed out that sending your information unencrypted is the equivalent of shouting your message to a person in a crowded room, to which someone pointed out that since most people don’t KNOW that everything they send out unencrypted over wifi can be picked up and listened to with a radio receiver then they have a reasonable expectation of privacy is this true? is ignorance really an excuse here?

        • I would imagine that the 9th circuit, at least, would hold that intercepting unencrypted wifi data would require a warrant. They at least affirmed a districts courts ruling stating that collecting data sent over unencrypted wifi is a violation of the federal wiretap act (Joffe V. Google, 9th Circuit 2013).

        • Regardless of encryption, intercepting packets requires tools not in general use, so I’d call it a search.

  2. So how do drones count? A quality RC plane ($300) with a video camera ($200) can be well within reach of a gainfully employed individual and meets the minimum requirements for a drone.

    • I’m guessing that falls under “helicopter”? Same concept, just smaller and remotely controlled.

      Unless we’re talking drones on international airspace, which is a whole ‘nother can of worms.

    • This is actually a fascinating concept, and one where the law is sure to lag several years behind the available technology.

      Technically, the plain view rule for flying vehicles is that the cops have to be in the same airspace that the general public could lawfully be in. So if, for example, it’s illegal to fly below 400 feet where you are, then the cops wouldn’t have a plain view justification if they were to scoot in at treetop level. And a quad copter or RC plane or other drone is probably being used at much lower altitudes than that. So there’s a whole issue as to whether the machine is even being flown in lawful airspace, or whether such restrictions apply to it. (Is Cory Doctorow reading this? Fodder for your next Little Brother book.)

      And there again, the cop himself isn’t inside the drone. Is it plain view if it’s really only a machine that can see you, and the cop isn’t anywhere near it but just looking at its video feed?

      But then again, what happens as the general public starts being able to use such things themselves, and it becomes perhaps commonplace? Wouldn’t you have to expect that it’s a possibility that regular folks have surveilling video cameras aloft? So wouldn’t that become plain view if the police merely followed suit?

      Then again, the government might make it illegal for the general public to use such kinds of surveillance. In that case the police would have to go get a warrant, right?

      This is going to be a fun area of the law to watch as it develops. One thing you can always count on, however, is that the intersection of law and technology is always going to be messy.

      • I would note that cameras for remote controlled airplanes have been around for years. If a person was willing to wait to look at the film, he could mount a camera on his remote controlled airplane as far back as the 1960’s. My father started building RC airplanes with his father in the 1940’s. He had to assemble his own radio for the airplane, but RC airplanes have existed that long. In the 1960’s they were selling remote operated film video cameras that could be installed in RC airplanes.

      • Would it be correct to state that if it’s illegal for a citizen to do it, the Police can’t use it as “plain view” rule?
        In my Country it would be illegal to fly a drone over private owned ground and even watch People with help of electronical Systems (or to take photos / movies). Our Police force is using drones actively to survey back yards for burglars. While the program is very successful, lawyers are contemplating if it’s legal or not. My opinion is you can’t expect privacy in a place you’re not supposed to be.

        • The question isn’t whether you’re violating the privacy of a burglar, but the owners of all the yards you have to sweep to find him.

      • and are interesting articles on private drone flights; the FAA rules demand they be flown lower then 400 feet and within physical sight, but apparently a $700 model can easily break both rules (and the article makes it clear they did and most users will probably follow suit) and there’s a court case arguing the FAA doesn’t have jurisdiction.

  3. Josh says

    Are there really more people using helicopters than thermal imagers or GPS? As a civilian, I have fairly easy access to multiple devices with GPS features, but a helicopter would be considerably more difficult to procure. Is there more to the criteria for what “counts” as a plain observation, or are the criteria just somewhat inconsistent?

    • The GPS thing isn’t just any old GPS device, but a tracking device that is relaying your location to the cops. Not exactly something you’d expect members of the general public to be able to do — it may even be something you’d expect would be illegal.

      But you’ve got plenty of non-cops flying around in helicopters and small planes and balloons and all that, and you’d be kind of silly to expect that members of the general public wouldn’t be able to do that. At least that’s what the courts say.

      • I can go to Amazon and buy a GPS tracker for a car for under $50 that will send tracking info over the internet whenever I query it, so the general public does have that ability. Do you think that will change the Court’s perception of the legality of trackers?

        • If you use your tracker on someone else’s car, that makes you a stalker. Plus, if a cop saw you walk up to a car and reach under body for a moment and walk off, I wouldn’t expect “I was planning a tracker” to be very useful in letting you go.

    • Well, I’ve been trying to find and buy/rent thermal imager at a reasonably priced for over a year now, so I would certainly assert that it is not something readily available to your average citizen. (I want to assess my home insulation effectiveness. It’s driving me nuts being unable to find one.)

      • Hire a professional to do it; the pro presumably knows how to use it properly, plus some locations have subsidies in the interest of reducing energy waste.

      • How reasonable is “reasonable” to you? Because if you’re saying you can’t find one below the entry cost of a helicopter, I don’t believe you.

      • IIRC, thermal imagers are now available at Home Depot.
        Also, your phone can be used for that, depending on the software installed….

  4. Librarian says

    It seems I’ve reached the current end of this comic. I’d like to say thank you for making it, and that I’ve learned quite a lot of good information. I can’t wait for the Constitutional Law section, because I think much of it contradicts with modern criminal law and procedure.

    Out of Curiosity, do you plan to do a Common Law section as well? IMO, it is the most relevant and important to know, being the only law binding to man and men, while Statutory Law is for corporate persons.

      • Now, now.

        Remember, the primary reason why I do this is to dispel all the myths and misinformation out there. Let’s not alienate those who could benefit the most from it.

        My favorite comments are thoughtful questions that challenge what I’ve said — I’ve actually revisited a couple of things already because of “class participation,” and I’m sure it will happen again. I also love it when people throw out their opinions for discussion. Differences of opinion, rationally discussed, are often where the most profound ideas come from, and it’s where real learning begins… plus, they’re fun.

        That said, I have started modding comments that are merely pushing agendas, or asserting misinformation. (This is my site; I do get to control the content.) There are plenty of other sites to post that kind of stuff, but this isn’t the place for it.

    • Thank you very much! I’m glad you’ve enjoyed it.

      As with everything, my goal with Constitutional Law will be to explain what it is, why it is the way it is, the underlying principles and policies, and how it actually works in real life, hopefully with a little humor here and there.

      Given that Con Law is loaded with issues that people are highly polarized on, sensitive to, emotional about, and woefully misinformed about, it’s going to be interesting to see the class participation, to say the least.

  5. Peter says

    Just a random bit of somewhat on topic info, down here around Houston some cop cars have FLIR units. It started in West University Place in the mid 90’s and more and more agencies are equipping at least some patrol cars with them. One officer told me he likes to occasionally drive down a street and do random “bush” checks.

    • Helicopters with FLIR (forward-looking infrared for the curious) are much more common (example).

      The trick is whether or not they’re using the gadget to look inside a place where you have an expectation of privacy. If they’re using it to see if people are hiding in bushes outside, that’s probably not the same as using it to see what’s going on inside a private home.

  6. Liam says

    I fully expect other civilians to be prepared with heat vision goggles, microphones, and GPS devices. Maybe I play too many video games…

    Also, love the reference to your previous strip, but didn’t that one (plain hear) turn out poorly for the investigator? I forget which strip it was from…

  7. Gekko71 says

    Wasn’t there a recent precedent allowing police to place and use GPS tracking devices on a suspect’s vehicle without a warrant, based around the idea that there is limited/no expectation of individual privacy when in your vehicle?

  8. Liam says

    What would have been making that heat signature? It’s pretty big, and hot, from the looks of it.

  9. Andrew M. Farrell says

    I just thought of a good test: “If a DnD character would make a spot check, its ‘plain view’. If they would make a search check, its a search.”

    • Someone else brought this up on my Tumblr last month.

      I replied “That’s not a bad analogy. It’s not perfect, though. In D&D, the distinction turns more on how you were looking, whereas the Fourth Amendment will focus more on whether you were invading someone’s privacy.

      “IIRC, in D&D it’s a search if you’re actively looking for something, and a spot if you just happen to see it. In Fourth Amendment law you can passively spot something and it’s still a search if you saw it while invading someone’s privacy.

      “And you can have plain view of something you’re actively looking for, so long as you’re not invading anyone’s privacy to see it.”

  10. WJS says

    I don’t see how you can possibly say helicopters are in general public use. How many people do you know with their own helicopter? I don’t know anyone with one.

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