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."

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