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fbi-use-of-global-postioning-system-gps-tracking — Part 01
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he went on public roads over the course of a month. The Government implicitly poses the
wrong question, however.
In considering whether something is "exposed' to the public as that term was used in
a reasonable person expects another might actually do. See California y. Greenwood. 486
U.S. 35, 40 (1988) (It is common knowledge that plastic garbage bags left on or at the.
side of a public street are readily accessible to animals, children, scavengers, snoops, and
other members of the public'); California v. Ciraolo, 476 U.S. 207, 213, 214 (1986) ("in
an age where private and commercial flight in the public airways is routine," defendant
did not have a reasonable expectation of privacy in location that "Jalny member of the
public flying in this airspace who glanced down could have seen'); Florida y. Riley, 488
U.S. 445, 450 (1989) ("Here, the inspection was made from a helicopter, but as is the
case with fixed-wing planes, *private and commercial flight [ by helicopter ] in the public
airways is routine' in this country, and there is no indication that such flights are unheard
of in Pasco County, Florida' (quoting Ciraolo )). Indeed, in Riley, Justice O'Connor,
whose concurrence was necessary to the judgment, pointed out:
*11 Ciraolo's expectation of privacy was unreasonable not because the airplane was
operating where it had a "right to be, but because public air travel at 1,000 feet is a
sufficiently routine part of modern life that it is unreasonable for persons on the ground to
expect that their curtilage will not be observed from the air at that altitude..
If the public rarely, if ever, travels overhead at such altitudes, the observation cannot be
said to be from a vantage point generally used by the public and Riley cannot be said to
have "knowingly expose[d]" his greenhouse to public view.
488 U.S. at 453, 455; see also id. at 467 (Blackmun, J., dissenting) (explaining five
justices agreed "the reasonableness of Riley's expectation depends, in large measure, on
the frequency of nonpolice helicopter flights at an altitude of 400 feet')..
The Supreme Court re-affirmed this approach in Bond v. United States, 529 U.S. 334
(2000). There a passenger on a bus traveling to Arkansas from California had placed his
soft luggage in the overhead storage area above his seat. During a routine stop at an off-
border immigration checkpoint in Sierra Blanca, Texas, a Border Patrol agent squeezed.
the luggage in order to determine whether it contained drugs and thus detected a brick of
what turned out to be methamphetamine. The defendant argued the agent had defeated his
reasonable expectation of privacy, and the Government argued his expectation his bag
would not be squeezed was unreasonable because he had exposed it to the public. The
Court responded:
[A] bus passenger clearly expects that his bag may be handled. He does not expect that
other passengers or bus employees will, as a matter of course, feel the bag in an
exploratory manner. But this is exactly what the agent did here. We therefore hold that
the agent's physical manipulation of petitioner's bag violated the Fourth Amendment.
14
TTUOTD
0070S5
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