Wednesday, September 22, 2010

GPS Surveillance, Part I - The Facts and Arguments

A number of news sources [including Reuters, Time Magazine, Yahoo! News, and ComputerWorld (an IT magazine)] reported earlier this month on a decision handed down by the Ninth Circuit Court of Appeals regarding warrantless entry onto private property and GPS tracking by government agents.  The full opinion is available here.

The criminal defendant in this case is an Oregonian named Juan Pineda-Moreno.  In 2007, by all accounts, DEA agents suspected Mr. Pineda-Moreno of growing marijuana.  Agents entered onto his property between 4:00 and 5:00 in the morning on two occasions to place a GPS tracking device on his vehicle, which was parked in a driveway a few feet from his trailer home.  (They placed a tracking device on his car on five other occasions when the car was parked on a public street or lot.)

During criminal proceedings in the district court, Mr. Pineda-Moreno sought to suppress all evidence against him which had been obtained using the GPS.  The district court denied his motion.  Mr. Pineda-Moreno conditionally plead guilty to charges of manufacturing marijuana and conspiracy to manufacture marijuana; the condition was that he be allowed to appeal the rejection of his motion to suppress the evidence.

A Ninth Circuit three-judge panel upheld the lower court's ruling regarding the admission of evidence.  Their opinion is available here.

Mr. Pineda-Moreno sought an en banc review of the decision, which was denied.  Chief Judge Alex Kozenski wrote a scathing dissent of the panel's decision upon the denial of the en banc hearing.  The dissent is available here.

In case you don't want to read it, the very short summary goes like this:
The court finds that Mr. Pineda-Moreno has no reasonable expectation of privacy either in his driveway or concerning the exterior of his vehicle.

For a slightly longer analysis:

(1) Fourth Amendment Violation on Private Property
Mr. Pineda-Moreno first argued that, by entering his driveway between 4:00 and 5:00 am and attaching tracking devices to his vehicle, the DEA agents violated his Fourth Amendment rights (protection from unlawful search and seizure).  This breaks down into two responses:

   (a) Curtilage
In responding to this argument, the judges relied on an earlier case called United States v. McIver.  In McIver, the court first found that the car in question had been outside the curtilage of McIver's home, so he had no expectation of privacy.

Curtilage is defined in Black's Law Dictionary (citing various cases) as "the inclosed space of ground and buildings immediately surrounding a dwelling house," or alternatively as "a small piece of land, not necessarily inclosed, around the dwelling house, and generally includes the buildings used for domestic purposes in the conduct of family affairs."  Traditionally, the area of curtilage around a house was afforded some degree of privacy - perhaps not as much privacy as the interior of the home, but more privacy than is given to a sidewalk or street in front of a home.

In Pineda-Moreno, unlike in McIver, the agents conceded that the vehicle was parked within the curtilage of the defendant's dwelling place.  However, the judges found that concession largely irrelevant in light of their pronouncement that his driveway was "only a semi-private area."  They concluded the followng:

"in order to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing the special features of the driveway itself (i.e. enclosures, barriers, lack of visibility from the street)....To the contrary, [Pineda-Moreno's]driveway had no gate, no 'No Trespassing' signs, and no features to prevent someone standing in the street from seeing the entire driveway....Thus, because Pineda-Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of the home."

The time of entry onto the property by the DEA agents is immaterial.

   (b) Vehicle
Second, the three-judge panel found that there was no cognizable "search" as recognized under the Fourth Amendment, because the tracking device was attached to the outside of the vehicle, where there is no reasonable expectation of privacy.

(2) Fourth Amendment Violation on Public Property
Mr. Pidena-Moreno's second argument was that the agents violated his Fourth Amendment rights by attaching the GPS tracking device to his vehicle while it was parked in a public place, but this was quickly shut down by the court, due to the lack of a reasonable expectation of privacy in a public place.

(3) Fourth Amendment Violation due to Continuous GPS Tracking
Mr. Pineda-Moreno's final argument was that the agents violated his Fourth Amendment rights by continuously tracking the location of his vehicle, since such devices are not generally used by the public.

In his argument, Mr. Pineda-Morena acknowledged the case of United States v. Knotts, but believes that the reasoning in that case was challenged by a later case of Kyllo v. United States.  In Knotts, the Supreme Court found that attaching a beeper device to a vehicle did not constitute a cognizable "search" because a "person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."  In Kyllo, the Supreme Court found that use of thermal imaging technology to obtain "any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search--at least where ... the technology in question is not in general public use."

The judges disagree, pointing out that the difference between the two cases is what the original search would have been, not what technology was used as a substitute for that search.  In Kyllo, the original search (entering the home to obtain information contained therein) would have qualified as a "search" under the Fourth Amendment, so the technological substitute for such a search does as well.  However in Knotts, as in Pineda-Moreno, the original search would have entailed following a car as it drove down public thoroughfares, which does not constitute a "search" under the Fourth Amendment; therefore neither does the technological substitute for such a search.  They conclude with this: "We have never equated police efficiency with unconstitutionality and decline to do so now."

Friday, September 17, 2010


Earlier this summer, an attorney friend of mine and I got discussing health insurance.  Particularly, we were debating the pros and cons of even having insurance, since you never know when you'll need medical care.  It came down to this: insurance is one of those things you'll hate having until you really need it (assuming your insurance company stands behind you when that time comes).

Somewhat inevitably, the conversation shifted slightly to the idea of legal insurance.  I knew that it existed in some form - x number of hours of consultation with an attorney, for the bargain price of $y per month.  I do a lot of family law, so we got thinking about divorce insurance.  Did this exist?  If so, did people actually use it?  Do you need an insurance broker's license to sell it?

Turns out, divorce insurance does exist, though it appears to be a very new invention - the last few months or so.  A company called WedLock (owned by SafeGuard Guaranty Corporation out of North Carolina) appears to be leading the charge, mostly through scare tactics.  The cost of a divorce quoted on their website is not necessarily untrue, but in most cases applies to a higher-asset divorce.  For a couple just trying to divide a small house and modest some bank accounts, and even sometimes when there are children involved, the costs usually only get that high if there is bitter fighting over the coffee table, the blender, the DVD player, the bathmat, the alarm clock, the fruit basket, the....  You get the picture.  Most folks, in my experience, are able to sort out the small details themselves, and the cost doesn't get anywhere near the $15,000 to $30,000 quoted on the site.

High-asset cases, on the other hand, can easily reach that level, even when the parties are cooperative.  More assets means more paperwork to swap and sift through, and that takes time. And time, as they say,  is money.

Undoubtedly, other companies will jump on board with WedLock in the coming months and years.  When that happens, there are two key things to think about:
1. Do you really need or want divorce insurance?
2. If you think you do, which company/policy best suits your needs?

Monday, September 13, 2010

Moving in with a Grandma

How would you like to move in with a grandma?  Here's the catch: she's not your grandma.

The Wall Street Journal reported on a strange bankruptcy in Long Island.  The 81-year-old widow who owned the house in question transferred it to her two children, reserving a life estate for herself.  Her son declared bankruptcy, and now his half interest in the home is on the auction block.  The buyer, however, will have to abide by the original terms of the transfer, meaning Grandma can continue living in the house alone until her death.  Then it will be up to the buyer and Grandma's daughter to sort out who gets what.  According to the son's bankruptcy attorney, "Whoever buys this, buys a lawsuit."

Tuesday, September 7, 2010

Public Service in the Down Economy

A New York Times article published last month told the story of Nathan Richardson, a University of Chicago Law School graduate who secured a coveted job offer at the LA-based firm of Latham & Watkins, P.C.  When the economy went south, Latham & Watkins, like many large firms, offered newly-minted attorneys a stipend of tens of thousands of dollars, usually about half of their first-year salary (a first-year salary would likely range from $100,000 to $150,000) to not come in to work.  That's right, these lawyers were paid for the year to do nothing.

But as ambitious young attorneys, most of them decided to do something anyway.  Many, like Richardson, went to work at public interest law firms, and the lucky ones were even able to work pro bono thanks to the stipend they received from the deferring firm.  As you can imagine, this was great news for the not-for-profits and the public interest firms, who were now getting top-notch students who were used to working hard and ambitious to make an impression.  That extra manpower certainly helped to clear many a backlogged file cabinet.

According to the Atlanta Journal-Constitution, the Georgia Supreme Court issued a rule late last year allowing limited privileges for attorneys who were not licensed to practice in Georgia and were willing to volunteer their time.  The non-licensed attorneys could work for a non-profit or one of a number of government agencies or offices, and their work had to be signed off on by a licensed attorney working for that organization.  This rule allowed deferred associates or attorneys looking to try out a new career path to get real, hands-on experience, while also providing extra manpower to help out cases which were building up, often due to hiring freezes instituted by the government or governing board.

These circumstances come together to improve the situation for public interest law firms and not for profits - ambitious new lawyers, or lawyers seeking to reinvigorate their passion, are flooding the market - often for free or cheap.

Not quite everything is coming up roses though. Time Magazine article states that the average law student who graduated in 2009 was burdened with $73,000 in debt.  [Repayment terms vary, of course, but those loans would probably require a monthly payment of something on the order of $1,000 to $1,500.]  The Time article quotes Larry Kramer, dean of Stanford Law School, who laments the lack of a suitable loan forgiveness or similar program to help students who could not only not afford to work pro bono, but also those who are having trouble making loan payments even if they are receiving a small salary from their interim employer.