DownsizeDCFoundation.org
November 7, 2011
The Unique Role You're Playing in the Supreme Court
By James Wilson

MEDIA ALERT: Downsize DC's Jim Babka will guest host a radio talk show tomorrow (Tuesday). Details are in the P.S.

DC Downsizers funded it. We did it. The Downsize DC Foundation played a leading role in submitting an amicus curiae (friend of the court) brief to the U.S. Supreme Court in the case of United States v Antoine Jones.

You can read the brief for yourself, at this link (PDF): http://www.downsizedc.org/blog-content/antoine-jones-second-amicus-brief-final.pdf

Recall back in August, we asked . . .

Does technological innovation invalidate your Fourth Amendment rights? ...can the fact that the police have fancier surveillance toys really be a valid excuse for abolishing an inalienable right?

Put yourself in Jones' shoes. Do you want to live under a State that can secretly attach a GPS to your car (after their warrant has expired), track your every move, wishing, even hoping, that they'll find you did something wrong at some point?"

Tomorrow (Tuesday), the Supreme Court will hear the Jones case. According to mainstream media reports, the Jones case is one of the three or four most important issues the Court is considering during this term. YOU are playing a part in this through your support of the Downsize DC Foundation.

Background

The Fourth Amendment reads . . .

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Previous to the late-1960s, police, and other agents of The State, needed a warrant to surveil an American citizen, and that warrant had to be specific about what was being sought. Fishing expeditions were not allowed. And to get a warrant The State had to demonstrate that the specific property to be searched or seized was . . .

  • An instrumentality of the crime
  • A fruit of the crime
  • Contraband

Anything outside these boundaries was not suitable to issue a warrant, and could not be searched or seized.

The late Justice Brennan wrote an opinion for the Court, Warden v. Hayden, which discarded the property-right basis for the Fourth Amendment, and along with it, the protections against fishing expeditions. Brennan replaced the protection of property with the idea that the Fourth Amendment protects privacy.

This experiment has failed us. As a result, we have lost both our right to our property and our privacy.

There is now far more surveillance of our lives by agents of the State, at all levels.

Worse, much of that spying is occurring without a warrant.

Privacy or Property or Property Plus Privacy?

It is our position that the Fourth Amendment does contain a right to privacy. But that amendment also asserts property rights. And property rights provide far greater protection in comparison.

In all instances, no search and seizure should even be cleared for a warrant unless The State can demonstrate sufficient evidence for temporary custody of private property, via one of the three boundaries listed above. ONLY if that property hurdle is cleared, should privacy questions then be considered. Privacy is extra insurance to protect our liberties, NOT a substitute for our property rights. Yet . . .

Since Warden v. Hayden, the intrusiveness of a given technology has become the primary legal consideration (intrusive = unreasonable search, and vice versa). 

Put another way, as surveillance technology has improved, it has been deemed less "intrusive" and made those things which were formerly private, less so.

This standard has made privacy an increasingly outdated concept. It's amazing what The State can glean about you from various records and with electronic gadgets, all without entering your home or place of business.

The Case

The Antoine Jones case is a particularly egregious and despicable example of just how badly both our property rights and privacy liberties been have injured since Justice Brennan's decision.

Police placed a GPS tracking device on the exterior of Jones' vehicle, WITHOUT a warrant. They tracked the car's every move. Then, they reviewed the reports to see if maybe he was going to places where he might have had the opportunity to participate in a crime.

Even though this case is now headed for the Supreme Court, The State is maintaining an extremist stance; because Jones's vehicle moved in public, and because they hadn't "entered" his property – the search was "reasonable."

Your Argument to The Court

Not only was this a textbook fishing expedition, but the GPS reports also missed an important detail -- who was driving the car? ...might it have been Mrs. Jones? She wasn't suspected of crime. Should she be surveilled?

Should YOU be surveilled, as The State hunts for ANY possible wrong-doing?

Should we EVER permit such targeted tracking and monitoring to occur? In our friend of the court brief, we ALONE boldly argue "NO!" It is metaphysically impossible to slap a GPS on a car, track the movements of any driver who might happen to use it, and NOT violate the car owner's property and privacy. Compare this case to the old Fourth Amendment test . . .

  • The movements of an automobile cannot be the instrumentality of a crime if the crime has not yet been committed.
  • The fruit of the crime test doesn't apply. Is the car stolen? If it was, why monitor its movements, instead of recovering it?
  • Last time we checked, automobiles are not contraband.

The electronic monitoring of ALL movements of Mr. Jones' private vehicle fails the test. And even if it didn't, it would still violate his right to privacy, and place others, not under investigation, in jeopardy.

And, to add insult to injury, the warrant in the Jones case had expired before the GPS was attached.

Obviously, we weighed-in on Mr. Jones' side. But we went further. We asked the Supreme Court to overturn Warden v Hayden, and restore the property rights protections of the Fourth Amendment. 

And once again, thanks to you, we filed the only brief that made such a request.

The Downsize DC Role

As a subscriber to the Downsizer-Dispatch, most days, you hear from DownsizeDC.org, Inc. But this friend of the court brief was a Downsize DC Foundation educational project.

1. The Foundation contributed finances to this brief.

2. The Foundation also recruited three amici to sign-on to the brief -- The Center for Media and Democracy, The Libertarian National Committee, and of course, DownsizeDC.org, Inc.

3. And Foundation staff also provided editorial input to the brief.

The Foundation was able to do all of these things because of generous, conscientious, DC Downsizers, like you.

Still, it is important to note, that Downsize DC Foundation requires your ongoing financial support. In August, and again last month we came to you with legal brief projects, and produced those briefs, thanks to your support. However...

We have some remaining bills for 2011. And we want to roll into 2012 strong -- ready to provide the needed education in the inevitable battles to come. To make budget for this year, we only need to raise about $3,000.

That's such a modest amount, isn't it?

Contributions to the Downsize DC Foundation are TAX-DEDUCTIBLE. And the easiest way to invest is also modest: Monthly Pledges.

And right now, Downsize DC has a donor who wants to match pledges. Your first month's pledge will be matched with $2 from Bill Haynes of CMI Gold & Silver.       

Please make your pledge using our secure web form.

Thank you,

Jim Babka
President
Downsize DC Foundation

P.S. Tomorrow (Tuesday), I'll be guest-hosting Straight Talk w/Jerry Hughes.

I'll be joined by Jim Harper, Director of Information Policy Studies for the Cato Institute. Jim also wrote a friend of the court brief in the Antoine Jones case, and he's the "GoTo Guy" on the Real ID Act. As if that's not enough, he's also the proprietor of Washington Watch, a website that tracks and reports the cost of legislation. We've referenced this resource in numerous Dispatches.  

You can listen live at 2:07 PM Eastern (1:07 PM Central, 12:07 PM Mountain, and 11:07 PM Pacific).

To hear the show on the web, or to find a local station, visit the network's website.

Affiliates can be found in Alabama, California, Florida, Georgia, Missouri, North Carolina, Pennsylvania, Utah, and Oregon.

I will monitor my Twitter account for comments and questions during the broadcast. @JimBabka

YOU CAN LISTEN TO THE PODCASTS ON OUR BLOG AS SOON AS THEY BECOME AVAILABLE.

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