Law and the Multiverse Retcon # 4: Batman: Noel (Revisited)

On Christmas Day, 2011, we discussed Batman: Noel, mentioning that one of the issues present was actually the subject of a then-pending Supreme Court Case, U.S. v. Jones.

Well, the Court has just handed down its opinion in that case. SCOTUSblog has an excellent analysis of the opinion, which was only unanimous to the extent that all the justices agreed with the appellee’s contention that the use of this wireless GPS device to track his vehicle violated his Fourth Amendment rights.

The justices disagreed, however, on exactly what “Fourth Amendment rights” meant in this case. The majority opinion (Scalia, Roberts, Kennedy, Thomas, Sotomayor) was the narrowest and seems to mostly stand for the proposition that law enforcement agencies would be well advised to get a warrant before doing this sort of thing, but it stops short of holding that a warrant is categorically necessary. They essentially held that the physical intrusion of the device on the car was a “search” but punted on the use of the technology. The four-justice concurring opinion (Alito, Ginsburg, Breyer, Kagan), wanted to talk more about whether or not there was a reasonable expectation of privacy with respect to the use of GPS tracking and suggested that the longer the tracking goes on, the more of an expectation there is. Sotomayor also filed her own concurring opinion which actually criticizes the majority opinion—which she joined—suggesting that if the cops try to get too funky with warrantless, wireless tracking, she may well side with the other bloc of justices and opt for a ban.

While we certainly didn’t predict how this was going to play out in terms of the justices voting patterns, this is basically what we predicted would happen overall.  As we said, “The Justices seem likely to say that while there isn’t necessarily a reasonable expectation of privacy in one’s movements in public places, the police still can’t directly track your movements without either your consent or a warrant.” So ultimately, the Court didn’t decide the former issue but suggested that the latter is probably true. At the very least, using a physical device attached to one’s person or property now constitutes a “search” under the Fourth Amendment.

So this isn’t precisely a “retcon” as much as it is an update. The original post suggested that Batman probably needed a warrant to use that tracer on Bob Cratchit, and today’s opinion in Jones says that this is correct.

10 responses to “Law and the Multiverse Retcon # 4: Batman: Noel (Revisited)

  1. The Supreme Court (or at least the majority opinion) seems to want to avoid making a broad decision on the nature of privacy and data just yet. I expect it will become a major court decision sometime over the decade.

  2. So, just to clarify, what would happen if Batman were to place a homing device on some perp’s car, tail them to their residence, and then anonymously tip off the police? (“This is where the guy who did such-and-such an illegal activity lives”)

    • I don’t see how on the police’s side there would be a legal difference between this and any other anonymous caller telling them there’s a criminal there so long as the police aren’t asking Batman to do it.

      • So in this hypothetical, Batman (who we’ll assume is a state actor) violates the Fourth Amendment and then submits the evidence to the police anonymously, but the police have an honest and good faith belief that it was a legitimate anonymous tip-off. In that case, the police likely would not violate the Fourth Amendment by acting on the tip. That doesn’t necessarily mean that the evidence is admissible, however. Batman’s illegal search may taint any resulting evidence as “fruit of the poisonous tree.”

        In order for the “fruit of the poisonous tree” doctrine to apply, a court must answer “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488 (1963). One way the taint can be purged is by showing that the “causal chain” between the violation and the evidence has been broken. Brown v. Illinois, 422 U.S. 590 (1975).

        In this case, Batman himself clearly knows what he’s doing in this instance and is consciously trying to do an end-run around the Fourth Amendment. He collected the evidence with the intent that it be used at trial, and he submitted it to the police anonymously to avoid the exclusionary rule. Viewed from this perspective, the police’s good faith actions did not break the causal chain. Indeed, it’s exactly what Batman planned. Excluding the evidence despite the police’s good faith would serve the deterrent effect of the exclusionary rule, which is a major policy consideration underlying Fourth Amendment cases. Brown, 422 U.S. at 599.

        So while Batman’s anonymous tip-off might make the Fourth Amendment violation difficult to prove, it does not mean that the evidence could not be excluded at trial, if the violation could be proved.

      • Melanie Koleini

        I don’t remember the Batman story line too well. But I thought Batman wasn’t after Cratchit, he just used the tracker to find the Joker. In that case, wouldn’t the illegal search result in the arrest but no actual evidence submitted at trial?

        Batman’s actions might be enough to keep Cratchit being charged with a crime, but would that help the Joker? Besides, I don’t think the Joker has standing to exclude evidence from the search anyway.

      • That’s a good point with regard to the actual facts of the Batman: Noel comic. I assumed (and should have said so) that Levi was creating a new set of hypothetical facts, per the phrase “if Batman were to place a homing device on some perp’s car.”

      • For the sake of clarification (on my part at least, and yes, this hypothetical is independent of Batman: Noel), what if Batman was NOT a state actor?

  3. I think it’s fairly solidly established that, although a Batman in this universe would be a state actor, the law of the DC Universe differs sufficiently to exclude that possibility. I think some further expansion is necessary with the assumption (noting that it is not valid in THIS universe) that Batman is not an agent of the GCPD.

    Alternatively, you could examine Spider-Man’s spider tracers, which use a slightly different technology to achieve the same result. I don’t believe that you could label Spider-Man a state actor for most of his career, as he was a wanted criminal (yes, I know that this is no longer true, but it was when I was still reading Spider-Man.)

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