On August 12th, a panel of the Ninth Circuit Court voted to deny a petition for rehearing en banc a case which many consider a controversial ruling on the Fourth Amendment’s guarantee of privacy. The original ruling of United States v. Pineda-Moreno was decided in January of this year. In Pineda-Moreno, the Ninth Circuit Court affirmed a district court ruling that effectively allows law enforcement officers to secretly place a global positioning system (GPS) device on an individual’s car without securing a warrant from a judge. In the August 12th Order, Judge Kozinski issued a dramatic and scathing dissent of the denial of the rehearing on banc.
The facts of the case were as follows: in 2007 Drug Enforcement Administration (DEA) agents attached a GPS device to the underside of Juan Pineda-Moreno’s vehicle on several occasions over a four-month period based on suspicions that he was involved in a conspiracy to grow and distribute marijuana. On four of these occasions, the vehicle was parked on a public street in front of his home. On the other two occasions, the Jeep was parked in his driveway, a few feet from the side of his trailer. Once in place, the tracking devices recorded and logged the precise movements of the vehicle. On September 12, 2007, information from a mobile tracking device alerted agents that Pineda-Moreno’s vehicle was leaving a suspected marijuana grow site. Agents followed the Jeep, pulled it over, and smelled the odor of marijuana emanating from the car. His arrest and the discovery of additional evidence followed.
Pineda-Moreno was indicted in November 2007 on one count of conspiracy to manufacture marijuana in violation of 21 U.S.C. § 846(a)(1) and (b)(1)(A)(vii) and one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii). Pineda-Moreno moved in the district court to suppress the evidence from the GPS devices, arguing that his Fourth Amendment rights were violated by attaching the GPS to his vehicle; his motion was denied. He entered a conditional guilty plea but reserved the right to appeal the denial of his motion to suppress.
On appeal, Pineda-Moreno presented several arguments with respect to the violation of his Fourth Amendment rights, each of which was considered separately by the court. First, Pineda-Moreno argued that agents violated his Fourth Amendment rights by entering his driveway and attaching the devices to the underside of his vehicle. In its decision, the Court relied on a ruling it had made in United States v. McIver, where the defendant argued that the placement of a device on the underside of his vehicle constituted an unreasonable “search,” violating his Fourth Amendment rights. United States v. McIver, 186 F. 3d 1119 (9th Cir. 1999). The Court rejected this argument, holding that the agents did not enter the curtilage of McIver’s home to attach the device and that the underside of his vehicle could not be “afforded a reasonable expectation of privacy” and therefore did not constitute a search.
According to the Court, the only difference in the instant case was that Pineda-Moreno’s car was parked within the “curtilage” of his home when the device was attached. Although the vehicle was parked in Pineda-Moreno’s driveway, the Court concluded that the driveway was on a “semi-private area.” The court ruled that “to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing special features of the driveway itself…or the nature of activities performed upon it.” The Court decided that Pineda-Moreno’s driveway did not have any features to establish this privacy and this argument was therefore rejected.
Pineda-Moreno next argued that because of the time at which the agents entered his driveway (4:00 AM and 5:00 AM) he possessed a reasonable expectation of privacy. The court once again cited McIver, where the timing of the agents’ actions were immaterial to analysis of the case.
Pineda-Moreno also argued that even if the agents’ presence in his driveway did not violate his Fourth Amendment rights, attaching the tracking device to the underside of the vehicle did. Because the Court in McIver had previously addressed this argument and held that the undercarriage of a vehicle, as the exterior of a vehicle, is not entitled to a reasonable expectation of privacy, Pineda-Moreno’s rights were not violated.
Pineda-Moreno also took the position that his Fourth Amendment Rights were violated when a GPS device was attached to his vehicle while it was parked on the street in front of his home and in a public parking lot. McIver also provided precedent for this argument and the Court held that no violation occurs when a suspect’s vehicle is parked outside the curtilage of his home because there is a lack of reasonable expectation of privacy.
Pineda-Moreno’s final claim was that the agents’ use of mobile tracking devices to continuously monitor his location violated his Fourth Amendment rights because the devices are not generally used by the public. The Court rejected this argument as well, finding that the use of the device on Pineda-Moreno’s car was, for the purpose of obtaining information on the locations where Pineda-Moreno’s car traveled, information which could have been obtained by officers actually following Pineda-Moreno. Therefore, the agents use of the GPS device did not, according to the Court, constitute a search or violate his Fourth Amendment rights.
The Court ultimately concluded that because the Agents did not “search” Pineda-Moreno’s car, they would not comment on the district court’s conclusion that the agents had reasonable suspicion that he was engaged in criminal activity, and therefore affirmed the judgment of the district court.
Notably, in his dissent, Judge Kozinski accused the Court of “dismantle[ing] the zone of privacy we enjoy in the home’s cartilage and in public” and of “quickly making personal privacy a distant memory.” He also opined that that there is “something creepy and un-American about such clandestine and underhanded behavior.”
Other courts such as the U.S. Court of Appeals in Washington, D.C., ruled in a similar factual scenario in early August that monitoring an individual with a tracking device for an extended period of time requires a warrant. There has been a great deal of controversy in response to the Ninth Circuit’s decision from conservatives and liberals alike and this case is likely to reach the Supreme Court.
United States v. Pineda-Moreno can be found at: 591 F.3d 1212 (9th Cir. 2010) and 2010 WL 3169572 (C.A.9 (Or)).
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