The GPS Decision--The Video

Here's a brief TV interview on the troubling aspects of the Supreme Court's ruling in U.S. v.. Jones:
Albany Law’s Bonventre Explains SCOTUS Ruling on GPS Tracking
[or paste on the browser:
http://www.capitaltonight.com/2012/01/albany-laws-bonventre-explains-scotus-ruling-on-gps-tracking/]

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For The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's Rebuttal, Feb. 12, 2012, see the immediately preceding post below.

The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's Rebuttal

The 4th Amendment does not prohibit unreasonable searches--only unreasonable searches of the few items it specifically mentions.
The 4th Amendment's fundamental concern is not even a search per se--it's concern is physical trespass.
The 4th Amendment is not even concerned with all physical trespasses--but only a physical trespass of an item it specifically mentions.
The Court's decisions protecting private activities from unreasonable searches (rather than protecting specified areas from physical trespass)--are deviations.
The Court's earlier decisions permitting warrantless wiretapping, warrantless eavesdropping, and warrantless searching of private property other than the house were correct under the 4th Amendment.
The GPS search in this case was unconstitutional, not because of its unreasonable invasion of personal privacy, but because the police "trespassorily" "encroached on a protected area."

--Justice Scalia's view of the 4th Amendment,
as expressed in his opinion for the majority in U.S. v. Jones

The 4th Amendment cannot be applied using 1791 trespass law.

The 4th Amendment must be adapted to 21st century technological surveillance.

A physical trespass is not the same as a search--nor is a physical trespass required for one.

4th Amendment doctrine must be concerned with modern, electronic surveillance, whether trespassory or not.
4th Amendment decisions that focused on physical trespass of a specified item have been repudiated.

The prolonged GPS search in this case was unconstitutional because it was an unjustified intrusion on privacy that reasonable people expect.

--Justice Alito's view of the 4th Amendment,

as expressed in his separate concurring opinion

Before going further, let's look at a few of the Court's past decisions that Scalia relied upon and explained with approval. Some, including me, may find this alarming.

Supreme Court: Right on GPS Surveillance--But BEWARE! (part 1)

(Back from end of semester + winter break + Arizona + 

beginning of new semester + other excuses for the respite.)

Yes, it's a search!


Electronically monitoring someone's movements by means of a tracking device, secretly attached to his car, is a search. That's what the Supreme Court ruled last week.


It means that government must get a warrant before it attaches a GPS (global positioning system) device to someone's car, without his consent, and uses that device to obtain information about his coming and going and stopping and visiting, etc. If the government does not first get a warrant--i.e., authorization from a judge based on some good reason for conducting that search--then the search is illegal. As a result, any evidence obtained in that search will be largely unusable by the government in a criminal trial.


New York State's highest court, the Court of Appeals, had reached the same decision a few years ago. As has happened many times in the New York Court's history, the Supreme Court has followed suit.


The New York Court of Appeals case was People v Weaver (2009). That Court, in an opinion by New York's Chief Judge, Jonathan Lippman, ruled that the state constitution's protection against unreasonable searches was violated when the police conducted a surreptitious GPS surveillance, over the course of several weeks, without obtaining a warrant. In short, GPS surveillance IS a search, so the state constitution requires a warrant. [See the discussion in New York Court Watcher at the time: Court of Appeals: 4-3 Majority Holds GPS Surveillance Requires Warrant Supported By Probable Cause, May 12, 2009.]

The Supreme Court last Monday, in U.S. v Jones, reached the same conclusion under the federal constitution. In an opinion by Justice Antonin Scalia, the Court ruled that the same kind of GPS surveillance, conducted by the police in that case, was indeed a search and, therefore, that the 4th Amendment's protection against unreasonable searches required a warrant.

But that's where the similarities between the two decisions end. That's just about the end of the agreement between Lippman's opinion for New York and Scalia's opinion for the Supreme Court. And that's why Justice Samuel Alito refused to join Scalia's opinion. That's why Alito wrote a separate concurring opinion and why three other Justices joined him instead of Scalia. Beware!

Judge Anthony V. Cardona, 1941 - 2011

He was one of those rare human beings that gave you hope. That gave you reason to believe in genuine goodness. That made you proud to be a member of the same species. If there is a Creator, He got it right with Judge Cardona.


Following a yearlong illness, Anthony Cardona ("Tony" to all who knew him) passed away this past Sunday. The Presiding Justice of New York State's intermediate appeals court in Albany--the Appellate Division, Third Department--he was beloved. Beloved as in deeply loved and greatly admired by everyone one who knew him.


I'm not sure if anything was ever said about Judge Cardona that wasn't accompanied by mention of how wonderful he was. How warm and kind and sweet and generous and compassionate and--well how much everyone just loved him. Not official, formal announcements. But sincere, heartfelt, candid, affectionate reflections about a man who was truly cherished.


Yes, he was a great judge and administrator. He was a jurist whose judicial opinions, as well as countless others he helped forge, fill the numerous volumes that record the work of his court from 1993 to 2011. And he was the head of that same court, leading it for an 18 year period of prominence, distinction, influence, and respect throughout the bench and bar. Yes, he was surely that.


But, beyond that--and to those who worked with him or otherwise knew him, even more than that--was his great humanity. You just felt good when you were in his presence. However happy and fortunate you were to see him, to say hello, to shake his hand, to give him a hug, he always seemed happier and more fortunate. Yes, a very rare, especially wonderful human being, who gave you hope in genuine goodness.


I've often spoken in this blog about how revealing it is to "connect the dots." So let's do that. Let's listen to what others have said about Judge Cardona. Chief Judge Lippman, former Chief Judge Kaye, Acting Presiding Justice Mercure, Clerk of the Court Novack, among others.

Judge Anthony V. Cardona, 1941 - 2011 -- What Others Have Said

(Albany Times Union staff photo by Lori Van Buren)

Here is a collection of what others have said about
Judge Cardona.


Those by New York Chief Judge Jonathan Lippman, Acting Presiding Justice Thomas Mercure, Former Clerk of the Court Michael Novack, Senior Law Clerk Michele McKay, and the Editorial Board of the Albany Law Review are from volume 73, issue #3 (2010), of that journal. They were all written as part of a dedication to Judge Cardona, on the occasion of the inaugural special issue now entitled The Anthony V. Cardona Annual Issue of New York Appeals. Also included in this collection is the article by Paul Grondahl and Carol DeMare in today's Albany Times Union. (The photo on the left is from that article.)


As noted in the main post, Judge Anthony V. Cardona, 1941 - 2011, the common denominator in all of these is Judge Cardona's humanity, decency, kindness, warmth, and generosity, and how well he was loved--indeed cherished by all who worked with him or otherwise knew him. Here they are:

Double Jeopardy, Joe Bruno, and Basic Criminal Justice

Imagine the government was prosecuting you a second time after failing in its first try.

That's right. The government prosecuted you for a crime it claimed you committed. The government failed. Then the government wants to prosecute you again, hoping to get it right the second time around.

No they can't, you might think. Wouldn't that be double jeopardy?


Well, it might be. But there are exceptions. And the exceptions--adopted by the Supreme Court over the years--may be swallowing virtually all the double jeopardy protection the Constitution is supposed to guarantee.

I'm confident that this will be surprising. In fact, I'm confident that it will be shocking and even appalling to most Americans who care about such things.

So, let's take a closer look. Let's do so based upon a real case. One that is currently in the courts. It's the case against Joe Bruno, the former New York State Senator and Republican Majority Leader. But imagine that it's you the prosecutors are after.

The Skinny on Roberts' Goat--What Did and Didn't Get It (Part 7: Conclusion)

So, just what do John Roberts' dissenting opinions tell us?

For the last several posts on New York Court Watcher, we've been looking at the Chief Justice's public disagreements with his colleagues. His public complaints about what the majority of his Court decided. What did he reveal about himself? What are the implications of what upset him--of what got his goat? Yes, what's the skinny on Roberts?

["Skinny" isn't part of my everyday vocabulary. But it did seem like an appealing fit.]


Let's recap. But let's first do it by considering what Roberts did not dissent about. What he did not complain about.

He did not complain about the rights of the accused being violated.
--Not about searches without warrants.
--Not about incompetent legal representation.
--Not about excessive and unequal sentences.

Oh, there is an exception. Domestic violence cases.
Roberts did side with those accused of domestic assault.
Roberts did complain about the conviction and the criminal contempt of domestic assailants in 2 cases.
[Yes, I confess, I do find this aberration in Roberts' typically anti-accused stances to be quite curious--indeed, unsettling.]