By Katie Kieffer
Ferrari 360 Modena, F50, F40 and 550 Maranello in driveway. Image credit: Motorworld online.
You don’t need to own a GPS to have your privacy invaded by a GPS. You just need to be a resident of California or eight other Western states and live in a home without a gated driveway. Basically, unless you live in a sprawling Hugh Hefner-style L.A. fortress under 24-7 surveillance, you may want to take a quick peak under your car before you zoom off to work tomorrow morning. If you notice a small GPS tracking device beneath your vehicle, then you are being spied on.
No, this is not a joke. Although most laws that sound like jokes originate on the Golden Coast.
In the recent case of 11504 UNITED STATES v. PINEDA-MORENO, the Ninth Circuit’s Chief Justice, Alex Kozinski, wrote an eloquent dissent to the decision to not re-hear the case of an Oregon man named Juan Pineda-Moreno.
Pineda-Moreno was suspected of growing marijuana. So, Drug Enforcement Administration (DEA) agents crept onto his driveway in front of his trailer home in the early morning hours and quietly attached a GPS beneath his Jeep. Kozinski argues that Pineda-Moreno’s Fourth Amendment rights were violated – and those of all Americans are threatened – by upholding this act as legal.
The Ninth District ruled this espionage “legal,” by arguing that Pineda-Moreno could not reasonably expect his privacy to be protected in the “curtilage” (driveway) of his home because, “It was open to strangers … such as delivery people and neighborhood children, who could wander across it uninvited,” TIME Magazine reports.
Ninth Circuit chief judge, Alex Kozinski. Image credit: AP/Paul Sakuma
Kozinski’s dissent does an excellent job of explaining the situation and why the 3-judge panel’s decision sets a disturbing precedent for the future of Fourth Amendment rights in America. I have included what I consider key passages from Kozinski’s dissent below. If you value your privacy, it is worth the read:
“The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory.
The facts are disturbingly simple: Police crept onto Pineda-Moreno’s property in the dead of night and quietly attached a GPS tracking device to the underside of his car. The device continuously recorded the car’s location, allowing police to monitor all of Pineda-Moreno’s movements without the need for visual surveillance. The panel holds that none of this implicates the Fourth Amendment, even though the government concedes that the car was in the curtilage of Pineda-Moreno’s home at the time the police attached the tracking device. The panel twice errs in very significant and dangerous ways.”
First
“The opinion assumes that Pineda-Moreno’s driveway was part of his home’s curtilage, yet concludes that Pineda-Moreno had no reasonable expectation of privacy there. Curtilage is a quaint word most people are not familiar with; even among judges and lawyers, the word is seldom well understood. Yet, it stands for a very important concept because it rounds out the constitutional protections accorded an individual when he is at home.
In modern times it has come to mean those portions of a homeowner’s property so closely associated with the home as to be considered part of it. The front lawn is part of the curtilage, and the driveway and the backyard—if it’s not too big, and is properly separated from the open fields beyond the house.
While it can be unclear whether a particular portion of the homeowner’s property is part of the curtilage, there’s no doubt here because the government concedes that Pineda-Moreno’s driveway is a part of his curtilage, and the panel expressly assumes that it is. United States v. Pineda-Moreno, 591 F.3d 1212, 1214-15 (9th Cir. 2010). Having made that assumption, Oliver and Dunn require the panel to “treat[ ] [it] as the home itself.” Dunn, 480 U.S. at 300. Instead, the panel holds that Pineda-Moreno was required to separately establish a reasonable expectation of privacy in the curtilage. That—according to Oliver and Dunn—is like requiring the homeowner to establish a reasonable expectation of privacy in his bedroom.
The panel’s rationale for concluding that Pineda-Moreno had no reasonable expectation of privacy is even more worrisome than its disregard of Supreme Court precedent: According to the panel, Pineda-Moreno’s driveway was open to the public in that strangers wishing to reach the door of his trailer “to deliver the newspaper or to visit someone would have to go through the driveway to get to the house.” Pineda-Moreno,
591 F.3d at 1215. But there are many parts of a person’s property that are accessible to strangers for limited purposes … This doesn’t mean that we invite neighbors to use the pool, strangers to camp out on the lawn or police to snoop in the garage. See United States v. Hedrick, 922 F.2d 396, 400, 402 (7th Cir. 1991) (Cudahy, J., dissenting).
The panel authorizes police to do not only what invited strangers could, but also uninvited children—in this case crawl under the car to retrieve a ball and tinker with the undercarriage. … To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage.
The very rich will still be able to protect their privacy with the aid of electric gates, tall fences, security booths, remote cameras, motion sensors and roving patrols, but the vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel’s ruling.
There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. … Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect—and certainly did not consent—to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.
When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.”
Second
Kozinski holds that the case the panel referred to as a precedent in declining to re-hear this case, United States v. Knotts, 460 U.S. 276 (1983), was a case involving incomparable technology (a primitive beeper requiring constant human operation) to that used by the police (a GPS requiring no human operation) on Pineda-Moreno’s property.
He states, “The modern devices used in Pineda-Moreno’s case can record the car’s movements without human intervention—quietly, invisibly, with uncanny precision.
A small law enforcement team can deploy a dozen, a hundred, a thousand such devices and keep track of their various movements by computer, with far less effort than was
previously needed to follow a single vehicle. The devices create a permanent electronic record that can be compared, contrasted and coordinated to deduce all manner of private information about individuals. By holding that this kind of surveillance doesn’t impair an individual’s reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives.
The Supreme Court has recognized that advances in “police technology [can] erode the privacy guaranteed by the Fourth Amendment.” Kyllo v. United States, 533 U.S. 27, 34 (2001). To guard against this, courts “must take the long view, from the original meaning of the Fourth Amendment forward.” Id. at 40. Kyllo followed a line of cases going back to United States v. Karo, 468 U.S. 705 (1984), Katz, 389 U.S. at 353, and Silverman v. United States, 365 U.S. 505, 512 (1961), which stemmed the erosion of personal privacy wrought by technological advances.
By tracking and recording the movements of millions of individuals the government can use computers to detect patterns develop suspicions. … The FBI need no longer deploy agents to infiltrate groups it considers subversive; it can figure out where the groups hold meetings and ask the phone company for a list of cell phones near those locations.
The panel holds that the government can obtain this information without implicating the Fourth Amendment because an individual has no reasonable expectation of privacy in his movements through public spaces where he might be observed by an actual or hypothetical observer. But that’s quite a leap from what the Supreme Court actually held in Knotts, which is that you have no expectation of privacy as against police who are conducting visual surveillance, albeit “augmenting the sensory faculties bestowed upon them at birth with such enhancements as science and technology afford[s] them.” 460 U.S. at 282.
…there’s no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention. Nor is there respite from the dense network of cell towers that honeycomb the inhabited United States. Acting together these two technologies alone can provide law enforcement with a swift, efficient, silent, invisible and cheap way of tracking the movements of virtually anyone and everyone they choose. See, e.g., GPS Mini Tracker with Cell Phone Assist Tracker, http://www.spyville.com/passive-gps.html (last visited July 17, 2010). Most targets won’t know they need to disguise their movements or turn off their cell phones because they’ll have no reason to suspect that Big Brother is watching them.
I don’t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle’s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.
