This one comes from the Supreme Court of the United States.
In
United States v. Jones, which came down yesterday, Justice Alito wrote a concurring opinion to criticize the majority for using "18th-century tort law" to decide whether "a 21st-century surveillance technique" (attaching a GPS tracking device to the underbody of a suspect's vehicle) is a "search" for Fourth Amendment purposes.
"[I]t is impossible to think of late 18th-century situations that are analogous to what took place in this case," Alito objected. "Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach's owner?"
Justice Scalia, writing for the majority, responds in footnote 3:
"Justice Alito's concurrence doubts the wisdom of our approach . . . . But in fact it posits a situation that is not far afield—a constable's concealing himself in the target's coach in order to track its movements. There is no doubt that the information gained by that trespassory activity would be the product of an unlawful search—whether that information consisted of the conversations occurring in the coach, or of the destinations to which the coach traveled."
But Justice Alito is ready with his own footnote 3:
"The Court suggests that something like this might have occurred in 1791 [when the Fourth Amendment was ratified], but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience."
So:
Is it true, as Justice Alito suggests, that a normal-sized constable in 1791 could not possibly have secreted himself in a coach of that era, undetected by owner and occupants, for "a period of time" sufficient to monitor the movements of the coach?
