If you attach it to my property, I just might feel the need to discard it. Good luck suing me for losing your shit. And in the case of a GPS unit I'd be making very sure I discarded it far away from the place where it was last functional.
You (as in you the law enforcement agency) might be in the right to attach stuff to my car, but I as the owner of the vehicle am not responsible if your stuff goes missing in action.
And if you do it without a warrant I'll make sure you have bigger problems.
You (as in you the law enforcement agency) might be in the right to attach stuff to my car, but I as the owner of the vehicle am not responsible if your stuff goes missing in action.
[you are both right, if only you listened to each other]
Version 1 (Jacques): if the GPS tracker disappears and no one can prove that I had anything to do with it, then I'm not liable. True.
Version 2 (Roel): if I destroy the GPS tracker and tell the court that yes, I found it, I knew it wasn't mine, and I destroyed it, then I am liable. True.
"You (as in you the law enforcement agency) might be in the right to attach stuff to my car, but I as the owner of the vehicle am not responsible if your stuff goes missing in action."
Wrong, If the owner of the car on purpose destroys the agencies property, he is legally liable for those damages. How could it not be so? How could the fact that a tool is used unlawfully detract from the ownership? When the agency attaches the tool to the car, there is no transfer of ownership.
Secondly, I'm not sure what you are imagining that the absence of a warrant means, in theoretical and practical terms. In our country, illegally obtained evidence will usually cause at most a small reduction of the sentence. A complete dismissal is quite rare.
> If the owner of the car on purpose destroys the agencies property, he is legally liable for those damages.
Prove it.
> Secondly, I'm not sure what you are imagining that the absence of a warrant means, in theoretical and practical terms. In our country, illegally obtained evidence will usually cause at most a small reduction of the sentence. A complete dismissal is quite rare.
That is a structural problem with your legal system. Besides that, I've done nothing wrong as far as I know (other than maybe dropping your GPS unit on the back of a truck bound for Afghanistan) so much good luck in prosecuting me.
Here (.nl) cases that rely on evidence gathered in illegal means get thrown out with some regularity, even if the rest of it is ironclad.
Not that long ago a bunch of car thieves was apprehended and in a first sitting convicted based on information taken from a license plate scanning experiment. The case was rock solid, except for one little detail, that data should not have been in the hands of the police, so the whole thing was thrown out without a chance for a 'do-over'.
Tainted evidence is the last thing the police here wants in their cases, and throwing out the whole case keeps them sharp.
What? You're the one with the extraordinary claim. I've already repeated several times in this thread that unlawful use of something doesn't change the ownership of that something. Someone who, on purpose, destroys or damages other people's property is held to compensate for it. What's the incredulous part in that?
"That is a structural problem with your legal system."
Well I on purpose used "our", since "my" legal system is also the Dutch one. Also, I'm one paper away from finishing my degree in Dutch law - not to argue by authority, and I'm certainly no expert on criminal procedure, just pointing out that I do have some basic knowledge of Dutch criminal and property law.
Anyway, "Here (.nl) cases that rely on evidence gathered in illegal means get thrown out with some regularity, even if the rest of it is ironclad." is, to put it mildly, open for debate. Sure, blatant violations like fishing expeditions (which was the case in the license plate scanning) will be dismissed. Smaller infractions (like retroactively applying for a warrant) much less. And don't forget that the Dutch 'reasonable suspicion' threshold is quite low. An anonymous phone tip will do. And hey, if that phone call happens to come from a phone booth across the street from the police station, who cares.
> What? You're the one with the extraordinary claim. I've already repeated several times in this thread that unlawful use of something doesn't change the ownership of that something.
No extraordinary claim involved, prove that I'm the one that 'illegally disposed' of your or someone else's property that you attached surreptitiously to my car.
I'm not claiming I own it, I'm just making the point that if I destroy something that I'm not supposed to even know I've got then I don't need to prove that I own it, I can just conveniently lose it or destroy it in a way that would make it very difficult for you to prove that I did so. If only because you'd have to prove my possessing it in the first place, which does not mesh well with a device attached to follow my whereabouts in an unobtrusive way. Unless you plan on sticking a watch team with cameras on me as well, but in that case you wouldn't need a GPS unit.
A GPS unit is basically a way to track someone without further surveillance.
> "That is a structural problem with your legal system."
> Well I on purpose used "our", since "my" legal system is also the Dutch one.
Ok, so that makes it a funny situation then, two Dutch people arguing US law, personally I wouldn't have any compunction dealing with such a device in a very destructive manner on the premise that I don't know who does own it and if someone 'loses' their stuff under my car they only have themselves to blame if it gets lost or damaged.
> Also, I'm one paper away from finishing my degree in Dutch law - not to argue by authority
No, but you do mention that to bolster your argument.
> and I'm certainly no expert on criminal procedure, just pointing out that I do have some basic knowledge of Dutch criminal and property law.
So do I. So what. Transfer of property requires in most cases a consent on behalf of both parties and preferably a bill of sale or a deed of gifting. Other than that ownership is a pretty murky business from a legal point of view, I could make the case that if you attach something to my car that I assume possession of it, and if you don't agree with that you'd have to sue me. But first you'd have to get me to agree that I acknowledge that the device was there in the first place, but my whole argument rests on the fact that I have absolutely no intention to do so.
So the proof that I had your goods in my possession would have to come from you, and that might be a very difficult thing to do. After all, if I didn't know about it but you and your buddies did then why should I be the one to be held responsible for loss, damage or theft by some unknown third party.
> Smaller infractions (like retroactively applying for a warrant) much less.
Cite a case please, and name the defendants lawyer, that way I can be sure to avoid them.
retro-active warrants are very much frowned upon here, prosecuting party would have to meet pretty stringent levels of proof that there was an element of speed involved of such magnitude that the normal procedure could not be followed. In any case a competent lawyer will use that to his advantage.
> And don't forget that the Dutch 'reasonable suspicion' threshold is quite low. An anonymous phone tip will do. And hey, if that phone call happens to come from a phone booth across the street from the police station, who cares.
I agree that anonymous tips are not good enough to meet the standard, but from what I've seen of the Dutch legal system the police is not in a habit of going across the street phoning in illegally obtained evidence in order to 'launder' it.
If you have any evidence to the contrary then I'll accept that as incidental, not as structural. In other words, no doubt that there have been such cases but I do not feel that this is a thing that happens with great regularity, and I would hope for those cases where it did happen to be exposed and the responsible police officers to be removed from service.
"prove that I'm the one that 'illegally disposed' of your or someone else's property that you attached surreptitiously to my car."
Ok then I misunderstood your remark, I thought you meant I had to prove "he is legally liable for those damages". But yeah if you turn it into a matter of evidence, anything goes, it becomes purely based on the specific circumstances. I was arguing the theoretical fundamentals.
"ownership is a pretty murky business from a legal point of view"
Eh no it's not. Transferring ownership is very widely studied, specified and understood. There is no discussion that the tracked subject doesn't get ownership. He does get possession, obviously. Nobody would argue otherwise. Again, if you bend this into an evidence case, all bets are off. In the concrete case the guy posted a picture of himself holding the device on the web. All the armchair lawyers saying 'oh he shouldn't give it back! it's now his!' don't know what they're talking about. I was in my original comment merely pointing out that this guy has no leg to stand on - he should just return the thing to the feds (well, he did) and save himself a lot of trouble.
"Cite a case please, and name the defendants lawyer,"
You can find the names of the lawyers in the various instances in the history of judgments.
These are just the cases where the judgments have been published, and where they were explicitly mentioned in the case. Also cases are only published when they have legal relevance, routine cases are not (they're not even written up if there's no appeal). Obviously most of these cases are handled 'behind the scenes'. Nobody ever knows that not everything went 100% 'by the book'. One case where (part of the) evidence was thrown out was when the police picked a guy up from work, threatened him, bullied him into silence after he repeatedly asked for a warrant, entered his house (without a warrant) through the neighbor's balcony, cuffed the suspect and threatened him and his mom to arrest him until he gave permission to search the house. This is about how bad it needs to get before evidence is excluded. I have no reason to believe these policemen were sanctioned.
"the police is not in a habit of going across the street phoning in illegally obtained evidence in order to 'launder' it."
Well it's all hearsay from here on, so we can go 'yes!' 'no!' for hours. I do think though you remember the IRT case; that's only 15 years ago! Also read accounts like http://www.koudbloed.nl/content/docs/robzijlstra.pdf.
Like I said, from here on it's no longer based on verifiable facts, not worth the trouble. I do think you have a too rosy picture of the practical workings of the justice system, though (note that I'm not making a moral judgment; I think overall it works pretty well. I'm just saying that it ain't like on Law and Order).
This is true, but if someone places something on your car, I'm not sure they can have a reasonable expectation that they will receive it back in one piece. It is reasonable that if someone found a GPS device attached to their car that they would want to remove it.
If I placed something under your car, why would I assume that I'd be able to retrieve it back again? It could become dislodged. You could have hit a bad pot hole and it fell out. It could have been disabled by going through a car wash.
It would still be the agency's property; however, I wouldn't be liable for anything that happened to it.
You (as in you the law enforcement agency) might be in the right to attach stuff to my car, but I as the owner of the vehicle am not responsible if your stuff goes missing in action.
And if you do it without a warrant I'll make sure you have bigger problems.