Over on FourthAmendment.com, John Wesley Hall follows up on his earlier post about the Afifi GPS case by responding, in part, to one of the questions I had raised as to whether the FBI had a warrant for the surveillance. Pretty much everyone’s assumed they didn’t, but John explains why they probably didn’t:
One can be assured that the government had made no pre-installation showing of probable cause. What is more surprising is that the FBI actually had to grovel and go to the target and ask for the GPS device back. After all, asking for it back led to them telling him, according to Wired.com’s story, that he’d been under surveillance for three to six months. Maybe he wasn’t a terrorist after all. If he was, I’d think that they would just put another one on his car and sure not tell him about it.
John also makes a point that I hadn’t considered at all (which is why I find his blog and some other law blogs so darned essential to my daily reading):
A silver lining? Anything that calls more attention to wanton GPS surveillance of citizens is well worth talking about because, mark my words, the Supreme Court is going to get this issue soon if United States v. Maynard, 615 F.3d 544 (D.C.Cir. August 6, 2010), posted here, survives rehearing en bancbecause that is the case they will take. (Note that Orin Kerr in the previous link on Volokh Conspiracy thinks that Maynard is not the case for SCOTUS to take.)
Read more on FourthAmendment.com and then bookmark the blog. You’ll thank me later.