Chicago beach

A “super creepy” spy program that was uncovered in Chicago and challenged all the way up to the state Supreme Court now is getting attention, and opposition, from one of the key property-rights advocates in the country.

It’s a city ordinance that demands food truck operators install and operate a GPS unit on their trucks, devices that must transmit their location every five minutes. That information then is available to anyone who asks.

Mayor Rahm Emanuel, who served in Barack Obama’s White House during his first term, claimed they are needed “so that the city and consumers can follow [food truck] locations.”

The Institute for Justice took up the fight when LMP Services objected to the requirement for its trucks back in 2012, and its arguments have included opposition to a city ban on trucks operating within 200 feet of a brick-and-mortar restaurant.

“Politically connected businesses should not be able to use the government to shut out their competition and restrict consumers’ choices,” said Robert Frommer, an IJ senior attorney, said when it was confirmed the state Supreme Court would review the case.

“The Illinois Supreme Court has an opportunity to strike down protectionism and stand up for the freedom of food truck owners to earn a living.”

The IJ’s National Street Vending Initiative has battled over “brick-and-mortar” demands in San Antonio, El Paso, Louisville and Baltimore.

But now the Pacific Legal Foundation has filed a friend-of-the-court brief in support of the IJ’s position, emphasizing that the GPS demand likely violates the U.S. Constitution’s Fourth Amendment.

Its expertise is in property rights, and is has fought and won multiple precedents at the U.S. Supreme Court, including those set in the Hawkes, Koontz and Sackett cases.

Its attorney, Timothy R. Snowball, explained the Chicago rule collects information about the truck movements.

But he explained in an online report, “The Fourth Amendment provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.…’ The Fourth Amendment was originally grounded in property rights, but this approach was augmented with a standard based on personal expectations of privacy in the 1960s. In recent cases, however, the Supreme Court has made clear that the Fourth Amendment still provides specific protection for private property, including effects (personal property). In addition, the Illinois Supreme Court has found that the Illinois Constitution provides even more protection against unreasonable searches than the Fourth Amendment.”

He pointed out food truck owners have a property interest in their vehicles separate from privacy concerns, and U.S. Supreme Court rulings have determined “unequivocally” that they are protected effects.

“If a food truck is protected property, then a required physical trespass, direct or indirect, constitutes a search, and a warrant is required under the Fourth Amendment. For these reasons, we encourage the Illinois Supreme Court to reverse the ruling below and find the Chicago’s GPS tracking rule unconstitutional,” he explained.

The filing states, “The government’s warrantless demand that food truck owners permanently place a GPS device on their vehicle, which continuously tracks its location, is a physical trespass in violation of the Fourth Amendment.”

It went on, “The question at the heart of this case is not whether food trucks are protected property, but to which category of property protected by the Fourth Amendment do the food trucks at issue belong. … In recent years the Supreme Court has made clear that property rights provide a firm and separate basis for Fourth Amendment protection.”

That court ruled that even a police officer’s warrantless use of a drug-sniffing dog on the porch of a home “was a physical trespass … in violation of the Fourth Amendment.”

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