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fbi-use-of-global-postioning-system-gps-tracking — Part 01
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Id. at 338-39. The Court focused not upon what other passengers could have done or
what a bus company employee might have done, but rather upon what a reasonable bus
passenger expects others he may encounter, i.e., fellow passengers or bus company
cmployees, might actually do. A similar focus can be seen in Kylio, in which the Court
held use of a thermal imaging device defeats the subject's reasonable expectation of
privacy, "at least where ... the technology in question is not in general public use." 533
U.S. at 34.
The Government cites as authority to the contrary our statement in United States y.
Gbemisola, 225 F.3d 753, 759 (2000), that "[t]he decisive issue ... is not what the officers
saw but what they could have seen." When read in context, however, this snippet too
supports the view that whether something is "expose[d] to the public," Katz, 389 U.S. at
351, depends not upon the theoretical possibility, but upon the actual likelihood, of
discovery by a stranger:
The decisive issue ... is not what the officers saw but what they could have seen. At any
time, the surveillance vehicle could have pulled alongside of the taxi and the officers.
could have watched Gbemisola through its window. Indeed, the taxi driver himself could
have seen the event simply by looking in his rear-view mirror or turning around. As one
cannot have a reasonable expectation of privacy concerning an act performed within the
visual range of a complete stranger, the Fourth Amendment's warrant requirement was
not implicated.
*12 225 F.3d at 759. In short, it was not at all unlikely Gbemisola would be observed
opening a package while seated in the rear of a taxi, in plain view of the driver and
perhaps of others.
(ii). Application
Applying the foregoing analysis to the present facts, we hold the whole of a person's
movements over the course of a month is not actually exposed to the public because the
likelihood a stranger would observe all those movements is not just remote, it is
essentially nil. It is one thing for a passerby to observe or even to follow someone during
a single journey as he goes to the market or returns home from work. It is another thing
entirely for that stranger to pick up the scent again the next day and the day after that,
week in and week out, dogging his prey until he has identified all the places, people,
amusements, and chores that make up that person's hitherto private routine..
b. Constructively exposed?
The Government does not separately raise, but we would be remiss if we did not
address, the possibility that although the whole of Jones's movements during the month
for which the police monitored him was not actually exposed to the public, it was
constructively exposed because each of his individual movements during that time was
15
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