*1 habeas, an “extraordi- may, if that as it individually EL-NAHAL, Hassan large is to a operation nary remedy whose similarly all others on behalf of by traditional rules of extent uninhibited situated, Plaintiff-Appellant, federalism,” id. has trans- finality and formed, from a reme- petitioners, for some YASSKY, Matthew Commissioner David liberty to a deprivations of dy of severe City Bloomberg, Daus, Michael may through petitioner tool mere York, Defendants-Appellees. New consequences collateral challenge the No. 14-405-cv then it is all the adjudication, conviction August Term 2014 that we ensure that the important more of Appeals, States Court controversy a live case or petition presents Circuit. Second those collateral conse- analyzing when 11, 2014 Argued: December quences. August Decided: respectfully dissent. (suggesting day Poodry, jury also also 85 F.3d session on the scheduled penalty hierarchy any subsequent placement of a 'at time to which the case ” penalty-scheme is relevant to its se- may (quoting Mass.Gen.Laws a state's be continued' Further, Ann., (West 1981)); verity). majority's require- § conclusion that ch. depart (quoting is in all cases irrelevant to the level ment to "not without leave” duration id.); penalty, Maj. Op. years’ severity imposed by a see and the imminent threat of two Indeed, may appear at the does not seem obvious. incarceration should he fail to trial); recognize duration Poodry Band Seneca be that at times one must v. Tonawanda Indians, 1996) (find- (2d severity fully of a restriction understand 85 F.3d See, liberty. e.g., Poodry, ing permanent 85 F.3d at 895 the threat of banishment from banishment); (discussing permanent petition- a reservation sufficient to render the (not- compare Lydon, 104 S.Ct. 1805 custody); Shenandoah v. U.S. ers in Interior, ing petitioner "under an obli- that the Dep’t jury custody gation appear trial in the session (finding petitioners not in alia, they day and 'at subse- they alleged, on the scheduled also where inter may be contin- quent time to which the case been "denied admittance into the Nation's ” Ann., center, ch. ued' Mass.Gen.Laws health banned from various [and] added)). facilities”); (West 1981))(emphasis and recreational see businesses *2 brief), York, N.Y., Dolgow, on the New er Defendants-Appellees. POOLER, LIVINGSTON, and Before: DRONEY, Judges. Circuit Judge part POOLER concurs separate opinion. in a part dissents LIVINGSTON, DEBRA ANN Circuit Judge:

Plaintiff-Appellant Hassan El-Nahal (“El-Nahal”), driver, City a New York ’ § suit in the brought a U.S.C. District Court for the South- United States (Forrest, /.), ern District of New York the New York principally alleging City Taxi Limousine Commission (“TLC”) through Defendants-Appellees — Daus, chairman of the Matthew a former TLC; Yassky, then-chairman of the David TLC; then-Mayor of Bloomberg, Michael City; City and the of New York New York “Defendants”) deprived (collectively, —had rights in him of his Fourth Amendment appeal, ways. As relevant to this various mandate argued that the TLC’s install City all York taxicabs New equipped with Global technology systems (“GPS”) tracking abili- Positioning System property-based ties amounted to — U.S.-, violated his and that this search District rights. The judgment to De- summary granted

Court on all of El-Nahal’s fendants claims, including his Jones claim, only issue before us which is the is devoid of the record appeal. Because El-Nahal had as to whether evidence alleged time of an in a taxi at the of Daniel DANIEL L. Law Office AokmaN, intrusion, El-Nahal trespass Ackman, York, N.Y., for Plaintiff- L. New showing on to make a sufficient failed Appellant. of his essential element claim and Defendants Zachary W. Fourth Elizabeth S. Natrella, Ac- summary judgment. Carter, City of were entitled Corporation Counsel court’s (Richard AFFIRM the district cordingly, we Dearing, Pamela Seid- New York summary judgment provide to Defen- this same information in the form grant of trip of handwritten records. The TTS rule dants. mandated that taxicab medallion owners I. procure by August in their TTSs taxis l-ll(g). 2007. Id. Background A. *3 agency City of

The TLC is pro- as the Around the same time TLC “regula- that tasked with the New York rule, mulgated the TTS the TLC also es- supervision of the business and tion and system tablished a new for taxi fare “rate industry transportation persons by codes,” corresponding types to different city.” vehicles for hire the licensed may charge. fares a taxi driver Rate Code N.Y., N.Y.C., § ch. Its Charter 2303a. instance, is the standard New York “rates,” regulation include the duties City point- rate and is used for fares from service,” and conditions of “standards to-point City. within New York Rate Code “Requirements safety of standards of and 4, meanwhile, doubles the fare for each efficiency operation ... of vehicles driven, may engaged unit additional and auxiliary equipment,” and the “estab- by only a taxi driver under certain circum- system ... ac- lishment of uniform [a] upon entering stances Nassau or West- counts,” ... right which entails “the County. chester inspect require books and records and to press In March the issued a TLC reports of such the com- the submission as announcing release that it had discovered may § Pur- mission determine.” Id. 2303b. using were the some taxicab drivers City York suant to the New Administra- setting overcharge passen- Rate Code Code, may tive promulgate TLC rules gers. “Using technology installed in GPS necessary implement authority. its taxicabs,” press explained, release 19-503(a). N.Y.C., N.Y., § Code 1,872,078trips “TLC has discovered where promulgated In TLC rule passengers illegally charged were requiring City that all New York taxicabs 35,558 higher by rate” drivers for a total of begin Technology System to use a Taxicab $8,330,155 overcharges. in alleged J.A. 135. (“TTS”), device located in the press qualified finding by release would, backseat among of taxicabs that noting that “there were 361 million taxi things, provide other credit debit card during illegal trips period, that time so the customers, payment services for as well as only charged trips,” fare was in 0.5% of all transmit to the TLC electronic data about alleged primarily and that the “scam was trips made gathered drivers drivers, perpetrated by a small number of N.Y.C., N.Y., means of tit. GPS. See Rules 3,000 overcharging with drivers more than TTS, § 1-01 Through the 100 times.” Id. only TLC would when drivers collect— later, duty May were on num- taxicab license Two months the TLC —“the ber; number; press taxicab driver’s license issued a second release modified initiation; trip findings, announcing location of the time of its initial initiation; trip passengers; completed analysis” the number of “TLC’s revealed that termination; “21,819 trip overcharged pas- the location of the time of taxicab drivers termination; 286,000 trip sengers the metered for the a total of times fare trip; trip.” overcharge and the of almost distance Id. 3- total estimated $1.1 06(b). implementation press Prior to the of the million.” J.A. 146. The release added rule, 13,315 required TTS that the out of TLC drivers to TLC believed fine, guilty, imposed in over- found 21,819 “engaged drivers times,” again ap license. El-Nahal but that it revoked his or two just one charging again Appeals and the Unit over pealed, that some prove able to “to be expected judge’s law deci 1,000 the administrative or more over- turned engaged drivers scandal, that the administrative ground sion on the to the response Id. In charges.” respect to El- judge’s findings law Attorney’s office Manhattan District overcharge intent to were alleged and Nahal’s defrauding “for 59 drivers arrested Nonetheless, customers,” the TLC re-filed insufficient. J.A. stealing from An El-Nahal once more. passenger charges against programmed and the TLC yet again foun judge law highly “a visible alert administrative display screens d part guilty, out of El-Nahal based GPS higher, when the that advises riders activated,” Google maps, and the trip 151. The TLC records rate is J.A. town *4 yet again reversed the deci against Appeals actions Unit brought administrative also Appeals appeal. reversing, sion on In many drivers. charges prejudice with dismissed the Unit faced administrative Among those who emphasized that the GPS evidence and El-Nahal, point at that who charges not, by El-Nahal could used to convict for more than been a taxi driver itself, that El-Nahal “intended to show 3, 2012, January twenty years. On overcharge.” overcharge, only that he did directing him El-Nahal a letter TLC sent 216. J.A. conference for a settlement appear that he over- allegations reference to History B. Procedural on 10 occasions be- charged passengers 31, 2013, El-Nahal filed his May On 20, February 2009 and tween November here, complaint complaint.1As relevant 4 22, using the Rate by improperly 2010 and use of installation alleged “[t]he allegations. El-Nahal contested the code. [through the TTS] GPS device [the] 2012, law May an administrative On search under the unlawful] constitutes a[n found, records the trip based on judge The com- Amendment.” J.A. 34. GPS, El- via allegedly obtained TLC the New alleged violations of plaint also rules on six oc- Nahal violated the TLC’s Constitution, the New Article 78 of York thus judge law casions. The administrative Rules, the Laws and York Practice Civil penalties upon El-Nahal imposed $550 Charter, and New York City New York El-Nahal’s TLC license and revoked common law. appeal, the Office Ad- drive taxis. On moved Taxi and Defendants Hearings August On ministrative Trials complaint pursuant (“Ap- El-Nahal’s Appeals Limousine Tribunal Unit to dismiss Unit”) Procedure ruling Rules of Civil penalty, to Federal peals overturned 12(b)(1) 12(b)(6). to the mo- Attached judge’s law deci- the administrative of exhibits. At seventy-two ev- tion were supported by “not substantial pages sion was Sep- conference held pretrial an initial The TLC then re-filed idence.” J.A. 187. 13, 2013, Forrest converted violation, Judge the adminis- tember one regarding into a mo- to dismiss not Defendants’ motion found El-Nahal judge trative law and directed Undeterred, summary judgment for re-filed five tion guilty. the TLC opposition to Defen- El-Nahal, to file his and a dif- charges against other judgment and summary motion for judge again law once dants’ ferent administrative viduals, the district court at no complaint on he Although El-Nahal filed the proceedings sought class certification. similarly situated indi- behalf of himself and summary judgment by II. motion for his own September 2013. On September review an “We award of sum partial El-Nahal cross-moved mary judgment de novo.” F.D.I.C. Gi respect to his summary judgment (2d 1994). ammettei, 34 F.3d claims, § and New York Constitution 56(c) motion, Upon proper Rule Defendants’ motion for sum- opposed Federal Rules of Civil Procedure man mary judgment. entry summary judgment dates the 29, 2014, January By order dated “against party who fails to make a show granted Defendants’ motion district court ing to establish sufficient the existence of summary judgment on El-Nahal’s ease, party’s an element essential to that claim, and dismissed the state party and on which that will bear the jurisdiction. supplemental claims for lack of proof Hayut burden of at trial.” v. State El -Nahal N.Y., Univ. (S.D.N.Y. 2014). 469-70 Catrett, Corp. Celotex court held that the installation and use of 317, 322-23, the TTS did not constitute a search for the (1986)). purposes situation, of the Fourth Amendment. As to L.Ed.2d 265 “In such a challenged whether the conduct intruded can be ‘no genuine there issue as to expectation El-Nahal’s reasonable fact,’ complete material since a failure of *5 court, privacy, citing the district our deci- proof concerning an essential element of in Buliga sion v. N.Y.C. Taxi & Limousine nonmoving party’s necessarily case (2d Comm’n, Fed.Appx. renders all other facts immaterial.” Celo 2009) (affirming ruling district court’s tex, 322-23, 477 U.S. at 106 S.Ct. 2548 requiring that the TLC rule the installa- (cur 56(c) (1963) (quoting Fed. R. P. Civ. in all tion of TTS taxis did not invade the 56(a) rent version at Fed. R. P. Civ. plaintiffs expectation priva- reasonable of (2010))).Thus, moving party is ‘enti “[t]he cy), concluded that El-Nahal had no “rea- judgment tled to a as a matter of law1 expectation sonable privacy any of because nonmoving party has failed to by the information collected” the TTS. El- showing make a sufficient on an essential Nahal, F.Supp.2d Regarding 465. respect element of her case with to which El-Nahal’s claim in- mandatory. that the proof.” she has the burden of Id. stallation of the TTS was a search because 106 S.Ct. 2548 R. Fed. Civ. P. involved a intrusion for the 56(c) (1963) (current version at Fed. R. information, purpose obtaining the dis- 56(a) (2010))); P. Goenaga Civ. rejected trict court claim on the Found., March Dimes Birth Defects grounds that “taxi drivers are aware of the (noting F.3d that “the system, system is pursuant installed if movant’s burden will be satisfied he can regulations, and the taxicabs in which the support to an absence of evidence to system truly private is installed are not an nonmoving par essential element of the El-Nahal, vehicles.” at 467. claim”). ty’s The district court further reasoned that assuming, arguendo, even that the manda-

tory installation of the TTS did constitute purposes, search for Fourth Amendment argues El-Nahal that the district justified the search pursuant was to the summary court “special granting judg needs” doctrine. El- erred Id. timely appealed. Nahal ment on his Fourth Amendment claim be- taxicab, in a we interests Jones, property-based “[p]hysical place- cause the district court neverthe- conclude that private device on tracking ment of a summary judgment granted properly less information in order to obtain vehicle is no evidence the record because there search,” Amend- that his Fourth so ... a element of El-Nahal’s as to an essential “[t]he when were violated rights ment bears the burden of claim on which he physical placement mandated the TLC namely, that he had such proof: owned taxi- privately tracking devices in a taxicab at the time a TTS was has at 29. El-Nahal Br. Appellant’s cabs.” installed.3 subject- that he was appeal argued not on intrusion on of an by virtue

ed to a search plaintiff that a itself demonstrates Jones he expectation privacy any reasonable such a El-Nahal must establish such as and use of the installation regarding interest. In the Su property-based Instead, that he asserts here he the TTS.2 clear that the reason Court made preme of defen- ‘rejected premise’ “explicitly did not test able-expectation-of-privacy was re- below that he argument dants’ merely supplemented supplant, but priva- invasion of to demonstrate quired earlier, to defin property-based approach claim that his Fourth cy” “search,” circumstances which ing the expecta- his depend on whether “does purposes, has oc for Fourth Amendment Appellant’s violated.” privacy There, was tion S.Ct. at 949-50. curred. 132 Accordingly, we address at 31-32. placed tracking Br. a GPS device Government presented was, has only argument undercarriage Jeep his contention namely, acknowledged, exclusively appeal: Government concluding that sum- erred in n.2. The district court Id. at 948-49 & driven Jones.4 warranted as to his move judgment Jeep’s tracked the mary then Government claim. days, using information for 28 ments pros tracking the TLC-man- from the Jones’s Assuming, arguendo, gleaned *6 Id. at drug devices several offenses. and use of TTS ecution for dated installation that Court instructed City may consti- 948-49. The Jones in New York in taxicabs approach, to the as to those with sufficient tute a search (1) "did not that Defendants' actions ap- elusions: reasonable-expectation-of-privacy 2. meaning deciding of the whether a search has a within the proach for constitute search meaning Fourth within the occurred ... the Jones Amendment ... under Justice Harlan’s (2) derives from analysis;” as- that physical-trespass States, 389 U.S. in v. United occurred, concurrence Katz suming, arguendo, that 19 L.Ed.2d 576 88 S.Ct. spe- reasonable under the "that search was the Fourth Amendment which affirms that Amend- analysis of the Fourth cial-needs upon protects against invasions an individu- El-Nahal, F.Supp.2d at 468-69. ment.” expectation privacy.” Id. al’s “reasonable J., (Harlan, concurring); S.Ct. 507 at that Government conceded 4.Because the Maryland, 442 U.S. see Smith v. Jeep, driver” of the was "the exclusive Jones (“Consis- (1979) Jones, (quoting United at 949 n.2 132 S.Ct. Katz, uniformly has tently this Court with (D.C. Maynard, 555 n.* application of the Fourth held 2010), grounds sub nom. on other aff'd person depends on whether the -, Jones,-U.S. 132 S.Ct. United States 'justifi- claim a invoking protection can. its (2012)), if Jones even 'reasonable,' able,' 'legitimate expecta- Jeep, Su "not the owner” of invaded privacy’ that has been tion of noted, prop he "had least preme Court cases)). (citing government action.” bailee,” id. erty rights of a ground alternative We thus affirm on an 3. con- the district court’s and do not consider search “undoubtedly operated, periodic which signals emitf] receiver,” up by when the Government acts to that can picked occurfs]” a radio Knotts, physically ] information intrud 103 S.Ct. 1081— “obtainf constitutionally area,” ing protected on a into containers of chemicals that were is, tracked, at 950 “per id. n.3—that individuals’ thereafter and that the Govern- sons, houses, effects,” papers, suspected as enu ment would be used in connec- text, in merated the Fourth Amendment’s tion with the illegal drugs, manufacture of Const. 278-79, 1081; Amend. IV.5 see id. at Karo, 708-09, 468 U.S. at 104 S.Ct. 3296. agents Because physi- Government argued The Government Jones cally Jeep, intruded on Jones’s which was Knotts and Karo “foreclosefd] the conclu- “beyond dispute ‘effect’ as that sion that what occurred consti- [to Jones] Amendment,” term is used in the [Fourth] tuted a search” because in these earlier Jones, plant 132 S.Ct. at and em- cases, Court, employing the reason- device, ploy tracking Supreme Court able-expectation-of-privacy approach, had concluded that it need not consider the using determined a beeper to track reasonable-expectation-of-privacy ap- movement of containers on public proach determining whether Jones was roads did not constitute a search. 132 S.Ct. subject search, to a see id. at 950-53. at 951. disagreed, The Jones Court con- Applying property-based approach, cluding that the outcomes in Knotts held “that Court the Government’s instal- Karo were “perfectly consistent” its vehicle, target’s lation GPS device on a property-based approach to the. Fourth and its use of that device to monitor the Amendment’s Id. at scope. movements, vehicle’s constitutes ” Thus, ‘search.’ Id. at 949. Jones was sub- explained, As Jones Government to a ject search because the Government Knotts beeper had installed the installed a GPS device his vehicle in container at issue it came into “before to obtain order information —on a vehicle possession, with KnottsXs] consent that, wife, registered while to his he exclu- (em- the then-owner” of the container. Id. (as sively drove the Court added). phasis challenge Knotts did not note) pains took he “had at least the installation, and the “specifically Court property rights of a bailee” at the time the declined to its consider effect.” the tracking Government installed device. Similarly, S.Ct. at 952. the Jones court Id. 949 n.2. Karo, explained Knotts, “[a]s *7 centrality The ... property of some [t]he interest Government came into phys- a property-based to Fourth ical Amendment contact with only the container before claim is also in evident in belonged manner to the Karo” and defendant distinguished Jones Court Unit- the consent of its then-owner: “Karo Knotts, States v. him, ed accepted the container as it came to all, beeper and United and and was en- therefore not Karo, object titled beeper’s presence, S.Ct. to the 82 L.Ed.2d In Knotts even though and it was used to monitor the Karo, the Government had installed beep- container’s location.” Id. (emphasis add- transmitterfs], ed). Jones, ers—“radio usually battery meanwhile, was on “much dif- effects, provides 5. Fourth Amendment in against relevant unreasonable searches seizures, part right people of the "[t]he to be shall be violated.” U.S. Const. houses, persons, secure in papers, Amend. IV. During that led to proceedings or Karo: he sum than Knotts footing” ferent Defendants, at the time Jeep mary judgment the Gov- of “possessed in favor inserted the infor- trespassorily ernment repeatedly Defendants stated that (emphasis device.” Id. mation-gathering in property-based approach Jones was LaFave, added); Wayne R. predicated upon physical intrusion on A Treatise Search & Seizure: property, emphasized how Jones dif 2.7(f) (5th 2012) ed. Fourth Amendment instance, For fered from and Karo. Knotts requisite date of the (noting that “the opening Defendants’ memorandum of law “period than the of sur- trespass” rather that, in explained unlike the defendant assessing veillance” is critical whether Jones, occupation physical there was no of occurred to Jones’s search has purpose El-Nahal’s property for of approach). Because the property-based because, obtaining information upon a intrusion was constitution- physical Karo, initial placement Knotts and “the of was ally protected area and undertaken monitor at Defs.’ was not issue.” Mem. information, obtaining purpose for the Yassky, of L. in El-Nahal v. Supp. conduct amounted Government’s (S.D.N.Y. (No. type search that property-based (KBF)), 13. 13-cv-3690 ECF No. Since the protects against. placement the GPS “physical device” issue, continued, was not at Defendants clear, there To be because was no dis- had relevance Plaintiffs Jones “little lawfully that the defendant pute Jones from logically claim.”6 Id. It followed Jeep at the time it was possessed the any was to statement that if Jones have nor did the trespassed upon, Government relevance, put the place El-Nahal had determination challenge the D.C. Circuit’s at issue—a point ment GPS device registration “that the did not af- vehicle’s implicitly acknowledged his pa he own ability fect to make a Fourth [Jones’s] opposition to Defendants’ motion pers objection,” the Jones Court cross support of his motion fully no to consider the na- occasion summary by stating that judgment “[t]he interest that suffi- ture was based on a Jones] Court’s decision [in cient to make out a understanding of the Fourth traditional claim. Id. at 949 n.2. Neither trespass” common law Amendment tied to need we here. Because we can dis- do so physical and “the attachment the de cern no at all El-Nahal had evidence 15-16, vice,” Supp. L. in Pl.’s Mem. of particular in a taxicab at the F.Supp.2d 460 El-Nahal v. alleged trespass time of an (No. (S.D.N.Y. 2014) (KBF)), 13-cv-3690 intrusion, genuine find no issue of ma- we No. and that Jones “focused on ECF Summary a trial. warranting terial fact [Gjovernment’s trespass JonesXs] judgment in favor Defendants added). vehicle,” (emphasis id. at 19 wholly proper. therefore *8 devoting an summary judgment, entire aspect this for 6. Defendants reiterated crucial specifically to the a that opposition to section of their brief Jones in their El-Nahal's cross- "[tjhere [t]respass on summary judgment Plaintiff's [w]as [n]o motion on the search 12, [cjonstituting Opp. [p]erson [p]roperty a L. in El- or claim. Defs.’ Mem. of at 460, Supp. L. in F.Supp.2d Reply Mem. of [s]earch.” Defs.’ Nahal v. 469-70 460, 7, (S.D.N.Y. 2014) (No. (KBF)), Yassky, 993 ECF El-Nahal v. 13-cv3690 (S.D.N.Y. 2014) (No. 13-cv-3690 They yet again reply 469-70 No. 30. did so their (KBF)), support of their ECF No. 36. memorandum in own motion “point[ed] thus out to necessarily Defendants does not entitle someone else that an acquires [was] district court there ab who later an interest in that Celotex, evidence,” sence of U.S. at property to claim that the Government “an support essen trespassed physically or intruded on her claim, tial element” El-Nahal’s Jones id. property. 106 S.Ct. 2548. It then fell to El- provided El-Nahal no evidence describ specific Nahal to “come forward with evi ing his interest a taxi at the time of an demonstrating dence the existence of a alleged trespass physical or intrusion. Be genuine fact” as to dispute material that yond that he a stating has been taxicab element of his Fourth Amendment claim. years, driver for more than 20 El-Nahal Co., Lilly Brown v. Eli & F.3d mystery leaves it a he whether owns a (citing Anderson v. Lib (and taxicab medallion owners of Inc., erty Lobby, regulations such medallions that TLC re (1986)); see also quire equip TTS, with a taxicabs Airlines, Royal Tovar v. KLM Dutch No. N.Y.C., N.Y., 35, § Rules tit. 1-11(f)-(g) 98 Civ. WL *5-6 (2010)), a corporate rents taxi from a own (S.D.N.Y. 2000) (in Sept. converting de basis, daily weekly er on a or or alternates fendants’ motion to to a motion dismiss with driving shifts another driver who summary judgment, noting that defen Moreover, rents a cab. he has said nothing may satisfy dants their burden at all as to what he had in “pointing] to absence of evidence to (if particular any) at the time it was support an essential of the element non- Thus, installed with TTS. so far as the claim,” moving party’s point at which discloses, record may here have [plaintiff] burden “shifts to come rented a taxi after its owner contracted ‘specific forward with showing facts that ” third-party with a provider to install' a genuine there is a issue for trial’ TTS, fully cognizant presence of the of the 18; Goenaga, 51 F.3d at Fed. R. Civ. P. cab, taking TTS the and even custody of 56(e))).Yet, El-Nahal adduced no evidence the cab on properly the-condition that he as to the surrounding any circumstances maintain the TTS operating while the taxi. alleged trespass physical or intrusion on a (Alito, J., 132 S.Ct. at 961 con Cf. taxicab in he had a curring) (noting that theory “the [Jones] interest. provide protection” would no if “the Fed Here, El-Nahal emphasizes that he persuaded eral Government or required drives a taxicab and that the TLC mandat- auto manufacturers include a GPS physical placement ed the aof TTS in all car”). tracking device in every Jones

privately owned cabs. But this is not case, leaves no doubt that such enough place- to show that property-based search claim would be ment of a TTS intruded on constitution- lacking. ally protected area Elr-Nahal. Even if That parameters property- point El-Nahal at some a taxicab drove fact, theory based TTS, outlined installed with Jones standing alone, fully were not explicated is no more than relevant the fact case makes it all Knotts and Karo at the more remarkable that El- pos- some sessed containers Nahal has failed to beepers. installed adduce evidence on one plain, aspect As Jones possibility makes of Jones that is clear: to claim may trespassed Government or trespassed physically have Government physically intruded on upon constitutionally pro- someone’s intruded one’s

257 however, disagree, I Defendants purposes gathering for area the tected out ... an to the district court “point[ed] information, must establish plaintiff support the non- absence evidence constitutionally pro- interest in a property moving party’s Corp. v. Ca case.” Celotex intrusion. area at the time the tected 317, 325, 2548, trett, 106 91 477 U.S. S.Ct. Here, evidence provided El-Nahal has no majority 265 relies on L.Ed.2d in that he an interest tending to show initial Defendants’ statements “the alleged trespass the of an any taxi at time issue,” of monitor was not at placement the that, element or invasion—an Mem. of L. in Defs.’ from dependent divergent on or whether u S have de- principles, tort we common-law p analysis as “the touchstone the scribed p . v. 737 Aguiar, See in Jones.” 460, 469- t a J.). (2d (Pooler, 251, 261 F.3d (S.D.N.Y. 2014) (No. (KBF)), 13-cv-3690 El-Na- jury could find for No reasonable “physical No. ECF that because the his the Government’s hal on claim the vehi- of the GPS device in placement Jones, constituted a search under conduct no is not at issue” Jones “has little or cles us nothing there is to do but claim,” in Plaintiffs Defs. Mem. relevance grant court’s of sum- affirm the district Supp. analysis at of L. the According- mary judgment to Defendants. the No following heading “There Was fact finding genuine no issue material ly, Property on Person Trespass Plaintiffs trial, judg- warranting a we AFFIRM the Search,” Constituting a the ar- only even of the court. ment district merely portion relevant of which guably physical placement stated that “the

again at in the vehicles is not of the GPS device POOLER, Judge, concurring Circuit at Supp. Defs.’ Mem. of L. in Reply issue.” dissenting part: part and v. anal- majority’s I excellent concur the (No. (S.D.N.Y. 2014) 469-70 13-cv-3690 between United States ysis of line (KBF)), Thus, pages ECF No. 36. in 64 — -, 132 S.Ct. Defendants, the briefing by only statement (2012), hand, one L.Ed.2d referring to an of evidence on absence Knotts, United States at interest in the taxi of El-Nahal’s (1983), physi- 75 L.Ed.2d Unit is that “the trespass time of in the Karo, GPS placement of the device cal ed States I, frankly, quite not issue.” vehicles is the other means. know this statement do not what Indeed, pressed had Defendants hand. lines nuanced majority draws While court, I analysis before same Karo, Knotts and Jones and between join majority holding would ownership showing importance successfully shifted Defendants had trespass, interest the time “come to El-Nahal to forward burden at such implicitly hint most Defendants exis demonstrating the specific evidence think was suffi- do not distinction. dispute of fact” genuine material tence to El-Nahal to shift the burden cient property of El-Nahal’s inter on the issue his provide evidence of alleged time of est in the at the taxi. Co., Lilly v. Eli & trespass, Brown moreover, 2011), evident, El- that the district and that It is F.3d these statements court did read failed to meet this burden. Nahal *10 258 majority, preclude

same manner does the as the not the finding GPS does that held that Jones not con- court did the surveillance entailed search. trespass trol on the that the in grounds view, Nor, my in fact is the that the GPS surreptitious, that are Jones was taxis pursuant was installed to administrative system truly private and that the property, dispositive. occasions, rule On numerous regulations. to See pursuant installed Supreme Court has addressed statutes El-Nahal v. 993 regulations implicating and Fourth (S.D.N.Y. 2014). I Although agree 467-68 instance, rights. Grady For that majority need not reach these — Carolina, U.S.-, v. North 135 S.Ct: issues, n.3, view, Maj. Op. my see at 253 (2015), 1368, 191 L.Ed.2d the Supreme 459 they incorrectly. were decided Jones’s, applied reasoning Court evaluat- matter, agree mandating As an initial cannot ing state statute the satellite- surreptitious nature of the intru- monitoring categories based of certain holding By sion was a critical factor to the sex recidivist offenders. unanimous Jones. the fact Beyond opinion, the Jones the Court that “a concluded State majority never characterized the intrusion it conducts search when attaches a manner, its reasoning expressly person’s consent, this device to a without body, target’s reliance on purpose tracking disclaimed ex- individu- pectations movements,” regarding possibility al’s id. at decision not physical changed by surveillance. The invasion of a the fact that this search was protected constitutionally area is no less conducted to statute. See id. at actionable under the Fourth Amendment (rejecting argument 1371 that this was not See, merely conspicuous. it is e.g., because unconstitutional “State’s moni- because Isiofia, nature”); toring program is civil in — 2004) (holding -, 232-33 that a war- Maryland King, (2013) 1968-69, rantless home search was unconstitutional S.Ct. where (considering the defendant witnessed the search the constitutionality under the consent, gave later found to invol- Fourth Amendment of DNA swabs taken statute). untary).1 pursuant Maryland To hold otherwise would allow to Most re- — government Patel, to conduct cently, City unreasonable Angeles Los U.S.-, merely announcing searches them. But 192 L.Ed.2d 435 not, instance, government could the Supreme Court struck down a pro- eliminate Fourth city Amendment’s ordinance requiring permit hotels to “homes, tection papers, if effects” the warrantless inspection guest it suddenly “were to announce on nation- records the basis that authorized wide television all regime homes henceforth of unreasonable searches without subject entry.” would be opportunity warrantless for precompliance review. Id. n.5, 2447-48, Smith v. Maryland, Plainly, govern- 2451-53. Ac- on a ment’s intrusion constitution- cordingly, subject El-Nahal’s ally protected awareness area Indeed, is illustrated Entick v. seizure.” 132 S.Ct. at 1765), Carrington, Eng. (C.P. (internal omitted). Rep. quotation marks In Entick, Supreme plaintiff case the Court prevailed has described as "un in an action for doubtedly every trespass messengers, familiar King’s acting American states after the man at adopted, authority general the time Constitution was the claimed under war- rant, to be the considered true and ultimate "with force and arms” entered and expression regard dwelling of constitutional law "against searched his his will.” *11 mas by the Fourth Amendment was the scrutiny even if the intrusion Amendment privacy sive intrusion on undertaken municipal regulations. by is authorized general of taxes to collection the taxi was respect to whether With M. warrants and writs of assistance.” G. constitutionally protected property, States, Corp. v. 429 U.S. Leasing negative, court answered in the 338, 355, 619, S.Ct. 50 530 97 L.Ed.2d regulation reasoning pervasive that “[t]he (1977). hated of “The writs assistance openness public to use of taxis authority to given customs officials blanket truly private from distinguishes them they im goods search pleased where El-Nahal, at issue Jones.” 993 ported in violation of British tax laws.” added). Al- (emphasis at 467 F.Supp.2d York, 573, Payton 583 v. New 445 U.S. agree that taxicabs differ from though (1980). n.21, 100 1371, 63 L.Ed.2d 639 S.Ct. important re- noncommercial vehicles engendered The offensiveness” “particular view, my these do distinctions spects, by acutely warrant “was felt general these all strip them of not by the whose merchants and businessmen protections. pri- the taxi was El-Nahal’s If products premises inspected were property, Jones dictates that personal vate parliamentary compliance with the several' property qualifies as “an ‘effect’ as such Barlow’s, revenue measures.” Marshall v. is used in the Amend- [Fourth] that term 307, Inc., 1816, 56 U.S. 98 S.Ct. 436 (“It important 132 at 949 is to ment.” S.Ct. (1978) added). (emphasis 305 L.Ed.2d happened what in this case: be clear about pri- physically occupied pri- purpose, Consistent “[o]ur The Government Fourth purpose obtaining or cases have established property for vate information.”). such, against unrea- prohibition to Amendment’s As was entitled to significance” applies sonable searches administrative “Fourth Amendment special inspections private proper- enumerat- commercial protected “one of those areas York, v. New ty.” Spinelli City Id. at 953. At in the constitutional text. ed” 2009). Fourth bottom, preser- must 167 “assur[e] the Court implicated by against is therefore degree privacy of that vation regulatory authori- by conducted that existed when searches government (al- en- involving “physical the unlicensed adopted.” Id. at 950 ties Amendment was See try” private property. v. on a business’s (quoting Kyllo Unit- original) teration States, 97 Leasing Corp., M. 429 U.S. at G. ed (2001)). Amend- (indicating that Fourth “The Framers S.Ct. 619 150 by implicated to ment be “warrantless have understood the term ‘effects’ would would real, property, than even owned personal, limited to rather seizure States, Oliver, corporation, private premises situated on v. United 466 property.” n.7, to access is not otherwise available 80 S.Ct. officer”). (1984). seizing was not for the L.Ed.2d The term limited, however, personal property of a worked The conclusion that TLC’s rule nature. It included “the noncommercial intrusion a con- an unlicensed of a tradesman.” Alt- goods [or] merchant stitutionally protected effect is not altered Point, F.3d City High man use.” public “openness the taxicab’s (4th Dictionarium El-Nahal, “What 1730)). (Nathan ed., Baily Britannicum knowingly exposes public, person office, even in own home or history, familiar “one of his

To recount now subject protection.” eliminated of Fourth primary evils intended to be States, 347, 351, ger longer) scope Katz United leave.” Id. at 1415. “The An express implied limit- license— —is implied permits regulato- license therefore only ed not particular to a area but also “any ry private officials to do citizen what specific Id. at purpose.” 1416. The detec- do,” might implicating without the Fourth tives’ conduct was therefore a un- — Jardines, Amendment. See Florida der they the Fourth Amendment because *12 -, 1409, 1416, U.S. 133 S.Ct. 185 engaged in behavior that ex- objectively (2013) L.Ed.2d (quoting Kentucky scope implicit ceeded the license King, 131 S.Ct. occupying constitutionally enter while (2011)). government A protected area. Id. at 1416-17. Here as in the same manner as a agent, private well, implied license all taxis extend person, may hail a taxi when it duty is on public not encompass does an invita- physically occupy for the duration tion to install technology surveillance Macon, trip. Maryland See 472 their vehicles. 463, 470, L.Ed.2d (1985). But, leave, without the driver’s typical may passenger not dust the car’s interior for mount a fingerprints, camera Accordingly, join analy- I the majority’s dashboard, through or rifle Jones, Knotts, sis of and Karo. I Because glove compartment peruse vehicle’s do not believe that Defendants properly tips passengers that other paid. have put at issue El-Nahal’s interest the- is no “[TJhere basis the notion that trespass, the time of I and because public because retail store invites the disagree analysis court’s enter, it consents to wholesale searches physical trespass-based and seizures that do conform to claim, I would vacate re- guarantees.” Lo-Ji mand for factual development. further Sales, York, 319, 329, Inc. v. New part therefore concur in respectfully 99 S.Ct. L.Ed.2d The in part. dissent Supreme Court explored related issue in Jardines, where law enforcement officers a narcotics-detecting

invited canine to

sniff around a suspect’s porch. front held that

Court a Fourth Amendment

search occurred because the detectives gathered by information “physically

entering and occupying” the constitution-

ally protected house, curtilage “to engage order not explicitly conduct MOSS, Deborah on behalf of herself implicitly permitted the home; similarly situated, and all others Jardines, owner.” 1414. The Plaintiff-Appellee, dog’s investigation amounted to an “unli- intrusion,” despite censed the fact that custom an implicit extended license approach BANK,

“to the home the front FIRST PREMIER path, South Da- bank, Bay knock promptly, briefly kota wait to be re- state-chartered ceived, (absent Bank, and then invitation to lin- Cities a Florida state-chartered