Cell Phones - Subject to Warrantless Search?

Two years or so ago, I wrote a series of posts about the split in the circuits on an issue of privacy - in that case, GPS surveillance.  (Posts are here, here, and here.)

There is a new issue coming up, which undoubtedly will find its way to the Supreme Court before too long: cell phones.  Circuits (and even courts within the same circuit) have divided on the question of how much privacy it is reasonable to expect where your cell phone is concerned.  The New York Times recently published an article on the issue, which highlights some of the divisions.

For now, courts are trying to apply the 1986 Electronic Communications Act to cell phones, but it's not working too well; technology (and our dependence on our phones) has advanced far ahead of the scope of the law.  A Senate committee will convene this week to consider changes to the law.

As cell phones become more important in our daily lives, they will surely be a go-to source for police officers or investigators looking for information.  But how much access are they allowed without a search warrant?  Voice mails?  Text messages?  Your recorded GPS location?  What if you have your phone screen locked?  Does that give you added protection for your data?  Does the phone company have to alert you if your records are subpoenaed?

No definitive answers yet, but time will tell.

Punishment or Rehabilitation?

Yesterday the New York Times published a series of essays by different authors debating the treatment of juvenile criminal offenders in our current system.

The Supreme Court is set to publish its ruling any day now on a pair of cases it heard earlier this session regarding whether juveniles can be sentenced to life imprisonment with no option for parole.

More on GPS

Some time ago, I wrote about cases involving warrantless GPS tracking of automobiles; those cases were bound to be appealed.  Now one of them has been. (You can read the original posts here, here, and here.)  NPR recaps the situation nicely:

In the case against Antoine Jones (discussed in the second link, above), a conviction relying heavily on the use of a warrantless GPS tracking device was thrown out by the Court of Appeals in the District of Columbia.  The question for the Supreme Court is this: do police need to get a warrant from a judge before attaching GPS device?

The government argues that there is no expectation of privacy regarding the location of one's vehicle on public roads; the Fourth Amendment only applies to the interior spaces, such as a glove box, locked drawer, etc.  The defense points out that GPS tracking might be okay . . . if it's supported by a warrant, which in this case, it wasn't.

Stay tuned for the final ruling!



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LawyerUp

The New York Times published an article last month about a company called LawyerUp.  The company promises an attorney will begin work within 15 minutes of your emergency call to the company's operator.

I have to say, I'm a little surprised that someone didn't think of this sooner.  Whether it's a good idea or not, I'm not sure, but it appears to be a money-maker, and that seems to trump quality of the idea in all cases.

Having said that, this seems rife with ethical problems.  As one example, the system works like this: you can either pay a monthly rate to have the one hour of service available as soon as you call, or you can "pay in a pinch," which is $100 for the dispatcher and the full $250 for one hour of legal services.  But that's all you get: one hour.

I admit, I'm not sure what the rules are in New York, but I'd be hesitant to take on a client, especially one who had just been arrested or needed assistance immediately, if I knew I was going to cut them off at 60 minutes.  Once you take someone on as a client, you owe them certain obligations, and sometimes those exist whether or not you're being paid; sometimes you can't just stop working, and it seems like that's what the business model is at LawyerUp.

And that's just the first one that comes to mind.  What about pesky little things like conflicts?  Do you have time to think about that if you're only doing an hour of work?

I'll be interested to hear how this turns out.

The Collision Over Traffic Cameras

As the City of St. Louis and surrounding municipalities are installing red light cameras, debate on whether they should be used continues to intensify locally.  Check out one example of the opposition.

But apparently it's not just us.  An article in last week's New York Times by the same name as this post looks - briefly - with a wider lens at the different opinions.  Bottom line: they can be good and work well, but that happens all too rarely.

What do you think?

Crying Foul

The LA Times just published a pair of articles (first, second) which illustrate with painful clarity how wrong things can go in a custody case.

The articles are long, but worth the read.  Just in case you don't have time, I'll do my best to summarize, and add some commentary at the end:

The story is about Louis Gonzalez III, who three years on, has established that he was trying to do nothing but be a good father whenever the court would let him.  His ex-girlfriend Tracy West had taken their son from Nevada, where Louis lived, and moved to California.  One weekend, when he was in California to see his son's new school and spend the weekend with him, Tracy accused him of a brutal kidnapping, assault, and rape.  She had clearly been the victim. Louis was arrested.

He was held for over a month in the Ventura County jail before his alibi could be fully corroborated.  Police officers concluded he did not have the time or equipment to commit the crimes she accused him of.  His only snippets of unaccounted-for time were small - six minutes here, five minutes there.  He could not have done it.  He was released.  His record was expunged.  He eventually received a declaration of factual innocence from the court, which is a very rare thing; it doesn't say "we didn't have enough evidence to convict you," it says "you didn't do it."

That wasn't the end of it though.  Louis was still fighting for custody, which had been severely limited or cut off completely due to the criminal charges.  Eventually, after further investigation into Tracy's psychiatric condition, Louis was granted custody, but Tracy retains visitation rights.  She moved back to Nevada to be closer to her son.

So far, Tracy's only punishment for fabricating the accusations against Louis was a court order to reimburse Louis for $55,000 worth of attorneys fees spent in the custody battle.  No telling how much more than that he actually paid during the criminal trial and ongoing custody hearings.  Shortly after the order, she filed for bankruptcy; it's unlikely he'll ever see a penny.

My thoughts:

Something has gone horribly wrong here.  Actually, many things have gone horribly wrong.

First, there is nothing that can be done to compensate Louis Gonzalez for his time in jail, the time he lost with his son, and the lingering damage to his reputation.  He can be compensated monetarily, but Tracy West probably will not be the source of much recovery.

Second, what has this world come to, that we resort to accusations of serious criminal behavior - crimes potentially carrying five (five!) back-to-back life sentences - before we can work out a reasonable agreement with someone?

Third, obviously we have to be careful where sexual violence is concerned.  The police were right to get Louis off the street right away.  If he really had done such a horrible thing, jail was where he needed to be.  And to his credit, Louis does not fault the police department for his detainment.  They were just doing their job, and eventually the lead detective concluded that Louis did not do what Tracy accused him of.  He refused to testify against Louis in court.

However, when it is as clear as it is in this case that the complaining victim not only lied, but either brutalized herself or had someone else participate, filed a false police report, cost the county and the court system untold numbers of dollars, withheld visitation time with a child, and nearly destroyed someone's life, she deserves to be punished.

Exactly how or what the proper punishment is?  I have no idea.  But the idea that someone can game the system like this merely for personal gain and suffer nothing but self-inflicted wounds is revolting.

Louis filed a civil suit against Tracy and her then- (still-?) husband Timothy Geiges for malicious prosecution, although it appears from the very limited docket notes on the Ventura County Superior Court website that nothing came of it.  Perhaps they reached a confidential settlement.

Even Tracy's lawyers don't like her.  An article in the Ventura County Star cites a motion filed by one of her attorneys who withdrew from representation, stating that "Ms. West insists upon taking actions that [her attorney] considers repugnant and with which there exists a fundamental disagreement between Ms. West and [her attorney]."

Red Light Cameras

There has been a lot of debate over the presence of red light cameras in the City of St. Louis, as well as other municipalities.  A recent decision by Judge Mark Neill in the 22nd Judicial Circuit Court struck down the ordinance which allowed the cameras to be mounted to monitor traffic in the city.

So will the cameras be removed? It's too soon to tell, but keep your eyes peeled at city intersections!

GPS Surveillance, Part III - Meaning and Other Rulings

I went on ad nauseum two posts (and many weeks) ago about the Ninth Circuit case of United States v. Pineda-Moreno.  I stopped short (I think) of offering any of my own interpretations.  No longer:

If you live in the Ninth Circuit (which is huge; it includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands), post "No Trespassing" signs at the end of your driveway - or all around your property - if you want to prevent entry.  Those signs will give you a much stronger argument that agents who entered onto your property under cover of night to place a tracking device on your vehicle were operating unlawfully.

However, if your car is ever found in a public place (at a parking meter, for example), law enforcement officials can place a tracking device on your car to trace its location, and such action is not unlawful.

There is an argument (springing from Judge Kozinski's dissent) that GPS trackers are an unlawful extension of the law enforcement's use of technology, but so far the rest of the Ninth Circuit doesn't agree with him. (Other courts do, though; see below.)

Of course, if you are not suspected of any criminal activity, this should not concern you, except on ideological grounds (where you should be very concerned, no matter your criminal or law-abiding tendencies).

Similar rules apply if you live in the Seventh (Illinois, Indiana, and Wisconsin) or Eighth (Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North Dakota) Circuits.  See United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); Unites States v. Marquez, 605 F.3d 604 (8th Cir. 2010).  Both cases are discussed briefly below.

The Ninth Circuit, though, is not the only court with an opinion on this issue. The United States Court of Appeals for the District of Columbia Circuit has also weighed in, and the judges on the east coast (not surprisingly) feel differently.  If you live on that side of the country, you may have slightly more protection from government investigation as to your whereabouts.  What happens when one Court of Appeals says one thing and a different Court of Appeals says something else?  Usually one or more cases with similar facts will find their way to the Supreme Court of the United States.  If SCOTUS hears such a case, their ruling will become binding on all circuit courts.  If they decline to hear it, the difference of opinion, known as a split in the circuits, will continue.

United States v. Maynard
In United States v. Maynard (the full opinion is available here), the DC Circuit Court of Appeals heard the arguments made on behalf of Lawrence Maynard and Antoine Jones.

Mr. Jones and Mr. Maynard were both under investigation for narcotics violations by the joint FBI-Metropolitan Police Department Safe Streets Task Force.  They were arrested and both defendants, along with a number of their acquaintances, were charged at the trial level with conspiracy to distribute and conspiracy to possess with intent to distribute a large amount of cocaine or cocaine base.  Both were convicted in a joint trial.  Mr. Maynard's appeal does not address the GPS argument, so is not significant for these purposes.  (Mr. Jones also made a number of points on appeal which are not significant here, but include alleged error in the admission of evidence secured by wiretap and and by a search incident to a traffic stop, as well as a number of alleged errors at trial.)

Mr. Jones's conviction was secured with heavy reliance by the government at trial on a GPS tracking device which had been placed on his vehicle.  On appeal, Jones argues that this tracking - which went on 24 hours a day for 28 days, with the device automatically transmitting and recording his position at regular intervals - constituted a search which violated his reasonable expectation of privacy under the Fourth Amendment, and was therefore illegal since the agents lacked a search warrant at the time the device was activated.

(1) Did the use of the GPS device constitute a search?

  (a) Knotts is not controlling precedent
The government's argument relied on United States v. Knotts, in which the United States Supreme Court found that using a beeper device to aid in the physical tracking of a vehicle did not constitute a cognizable "search" because a person traveling on public roads has no reasonable expectation of privacy in his journey from one point to another.  The government's argument was that the GPS device was essentially the same as the beeper in Knotts in that it aided the law enforcement agents in their attempts to track the whereabouts of their suspects, and that the GPS was not the type of mass surveillance that the Supreme Court was concerned about in Knotts.

The court here disagreed.  The beeper, they said, was for use only during a "discrete journey." The Supreme Court had specifically reserved the question of "whether a warrant would be required in a case involving 'twenty-four hour surveillance,'" and not just the type of "mass surveillance" that the government was advocating for (such as blanket wiretaps), but even for twenty-four hour surveillance of an individual.  The court cautioned that "if a warrant is not required, then prolonged 'twenty-four hour surveillance of any citizen of this country will be possible, with judicial knowledge or supervision.'"

The court pays homage to United States v. Pineda-Moreno (previously discussed at some length), United States v. Garcia, and United States v. Marquez.  The Seventh Circuit Court of Appeals in Garcia upheld the use of the GPS device, but Mr. Garcia had failed to argue in that case that he had a reasonable expectation of privacy over the totality of his movements for the duration of the surveillance; his only argument was that the placement of the device which led to the tracking was a violation of the search requirements of the Fourth Amendment.  The court in Garcia found the use of the GPS device to be more similar to tracking via stationary mounted cameras or satellite (not a search) than to a listening device on a phone (a search), and hence found no Fourth Amendment violation.

In Marquez, the Eighth Circuit Court of Appeals agreed with the Seventh and Ninth Circuits when faced with an argument similar to the one made in Garcia.  The court, despite finding that the defendant lacked standing to challenge the use of the GPS device, stated that installation of a non-invasive GPS tracking device for a reasonable period of time to a car parked in a public space did not require a warrant.

  (b) Were Jones's whereabouts exposed to the public?
Since Knotts doesn't control the outcome in this case, the court must analyze Mr. Jones's expectation of privacy.  The requirement imposed by the case law stemming from the Fourth Amendment that law enforcement officials be armed with a warrant generally does not apply where a person has no reasonable expectation of privacy.  The question of whether one's actions are "exposed" can be considered in light of either actual exposure or constructive exposure.

    (i) Actual Exposure
When examining actual exposure, the court asks "not what another person can physically and may lawfully do, but rather what a reasonable person expects another might actually do."  The court illustrates the application of this question by looking at a number of different cases, including United States v. Kyllo and United States v. Gbemisola.

In Kyllo, "the Court held use of a thermal imaging device defeats the subject's reasonable expectation of privacy, 'at least where...the technology in question is not in general public use.'"  Thermal imaging was not in public use - it was not something "a reasonable person expects another might actually do" - therefore it violated the subject's reasonable expectation of privacy.

In Gbemisola, in which the subject and contraband were located in the rear seat of a taxi, the court declared that "'one cannot have a reasonable expectation of privacy concerning an act performed within the visual range of a complete stranger, [so] the Fourth Amendment's warrant requirement was not implicated."  The implied corollary in Gbemisola is that, had the act taken place out of view of the public, there would have been an expectation of privacy.

The government's argument in Maynard is simple: knowing exposure of one's movements, movements on public roads visible to anyone who wanted to look, is not subject to Fourth Amendment protection.  Applying the principles from Kyllo and Gbemisola to Mr. Jones's case, the court finds differently: "the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil."  Jones's movements were not actually exposed.

    (ii) Constructive Exposure
The government makes no argument for constructive exposure, but the court acts on its own initiative to explore the issue.  It relies on United States Department of Justice v. Nation Reporters Committee, in which a Freedom of Information Act request for documents was denied: "Although the 'individual events in those summaries [were] matters of public record,' ...the subjects had a privacy interest in the aggregated 'whole' distinct from their interest in the 'bits of information' of which it was composed."

The court's decision here, while wise, is not particularly well-stated.  "The whole of one's movements over the course of a month is not constructively exposed to the public because, like a rap sheet, that whole reveals far more than the individual movements it comprises."  Prolonged surveillance, which allows the viewer to see patterns of behavior, is vastly more revealing about a person that one-time observation.  "A reasonable person," they said, "does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain 'disconnected and anonymous.'"  Therefore, neither were Jones's movements constructively exposed to the public.

  (c) Was the expectation of privacy reasonable?
The court frames this question within the bounds of a case it previously decided, Reporters Comm. for Freedom of Press v. AT&T: "the Fourth Amendment ... secur[es] for each individual a private enclave, a 'zone' bounded by the individual's own reasonable expectations of privacy."

The government, as was its habit in Maynard, argued that Jones's movements took place on public roadways, and therefore Jones had no reasonable expectation of privacy.  The court fell back on its analysis of actual and constructive exposure, reasoning that no one would expect every movement they made over the course of a month to be aggregated; even if someone observed a single movement, the subject of the observation would expect the others to remain disconnected from that one.

The facts of the case and its own previous analysis lead the court to the conclusion that "[s]ociety recognizes Jones's expectation of privacy in his movements over the course of a month as reasonable...."

  (d) Visual Surveillance
The court takes a bit of time to distinguish between visual surveillance and the use of a GPS tracking device.  It acknowledges the efficiency of GPS tracking, but also notes that the low cost and manpower requirements attendant thereto render it a new type of intrusion into the lives of citizens, not the type of intrusion which had been previously contemplated.  The government, for its part, failed to point out a single instance of prolonged visual surveillance that would be upset by the court's ruling in Jones's favor here, and the court reserves that question for a later time.

(2) So there was a search which was otherwise unreasonable.  Was it rendered reasonable by an exception to the Fourth Amendment rule?
The "automobile exception" to the Fourth Amendment warrant requirement allows the search, without a warrant, of an automobile if the "car is readily mobile and probable cause exists to believe it contains contraband."  The government argued that this exception applies because the device was attached to a vehicle.

Mr. Jones argued, and the court agreed, that the exception does not allow installation of a tracking device.  The exception's allowance of search upon the existence of probable cause is much too narrow to support the government's position.

(3) The evidence was admitted in error.  But was the error harmless?
Evidence obtained from the GPS tracking device was used in Mr. Jones's conviction at the trial level.  If the government could show that the district court's error in admitting the evidence despite its unconstitutionality was harmless, the decision would not be overturned.  The government failed to meet that burden, and the Court of Appeals found that it is unlikely Mr. Jones would have been convicted without the GPS evidence.

The court reversed Mr. Jones's conviction.

Application for Rehearing En Banc
Since the reversal of Mr. Jones's conviction, the government applied to the DC Circuit Court for a rehearing en banc.  The petition was denied.

In support of the denial, Judges Ginsburg, Tatel, and Griffith stated that the government failed to meet either of the requirements for the automobile exception to the Fourth Amendment's warrant requirement, so they needn't reconsider the issue.  Additionally, the government's argument that the case calls the admissibility of evidence obtained from prolonged visual surveillance is faulty because the court specifically reserves that question.

In a dissent written by Chief Judge Sentelle and joined by Judges Henderson, Brown, and Kavanaugh, those judges express their concern that the DC Circuit now stands in opposition to the other circuit courts which have ruled on the issue of GPS surveillance.  Further, they feel that the panel's decision stands in opposition to the Supreme Court's opinion in Knotts, which is binding precedent and must be followed.  They are unconvinced by the panel's distinction between Knotts and Maynard, saying that the only difference between the two types of monitoring is the volume of information obtained.  Such a minute difference, they argue, is not sufficient to render a new line of jurisprudence.

GPS Surveillance, Part II - The Dissent

In my last post, I summarized the opinion of United States Court of Appeals for the Ninth Circuit in the case of United States v. Pineda-Moreno.  As I mentioned, Mr. Pineda-Moreno requested an en banc rehearing of arguments, which was denied.  Chief Judge Kozinski wrote a dissent upon that denial, which is available in full here.

His dissenting argument can be divided into two prongs: (1) a citizen's right to privacy, and (2) the limitations which should be placed on law enforcement officers.  But before we get to that, it's worth taking a moment to enjoy the literary reference in the last blistering sentences of his opening paragraph:

"The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory.  1984 may have come a bit later than predicted, but it's here at last."


Right to Privacy
The chief judge is concerned about the erosion of the right of privacy in the curtilage of one's home.  He cites Oliver v. United States for the position that the curtilage is entitled to the same level of privacy as the interior of the home:

"[O]nly the curtilage...warrants the Fourth Amendment protections that attach to the home.  At common law, the curtilage is the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life,' and therefore has been considered part of home itself for Fourth Amendment purposes.  Thus, courts have extended Fourth Amendment protection to the curtilage."

In some cases, Kozinski points out, whether the curtilage was invaded is a question of fact - the argument is about whether there was an invasion at all.  Here, the government conceded that there was an invasion.  Therefore, Kozinski argues, all rights and expectations of privacy which normally apply to the interior of a man's home should apply as well.

In this case, however, the panel stated the rights and expectations of privacy would apply to the curtilage only if it was separately established that they should apply for some reason.  Kozinski supports his argument with a discussion of limited right to enter another's property.  He mentions postal workers, repairmen, employees of utility companies, gardeners, and delivery men, all of whom have a limited right to enter property for the purpose for which they have been employed or permitted.  Others who have not been granted a right would not be welcome on the property.

In its original opinion, the panel had used the example of neighborhood children, who could have entered the driveway and crawled under Mr. Pineda-Moreno's Jeep to retrieve a lost ball.  Chief Judge Kozinski argues that such children would be uninvited, and often enter another's property for reasons not nearly that innocent or innocuous.  The "urchins," he says, might "jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas."  To allow law enforcement officers to do all of those things just because they are things which unruly children might do "spells the end of Fourth Amendment protections for most people's curtilage."

The few people whose curtilage would not be invaded, he argues, are the wealthy; the poor are not represented in the state or federal judiciary, but that does not mean they are not entitled to the same protections as those who are represented.


Limitations on Law Enforcement
The more controversial of Chief Judge Kozinski's arguments is that proper law enforcement requires human action.  He is troubled by the use in this case of satellite-based GPS tracking devices which "can record the car's movement's without human intervention--quietly, invisibly, with uncanny precision."  He cites the previously-mentioned Knotts case to distinguish the GPS tracker from the beeper used in Knotts:

"The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways....But the beeper could perform no tracking on its own, nor could it record its location."

Kozinski seems to focus on the expectation of the citizen.  He notes the general lack of expectation of privacy when one is in public spaces, but also identifies ways to preserve privacy, even in public:

"By traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed.  But 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."

Chief Judge Kozinski notes that technology is improving, and we must account for that.  He is a believer in the original intent of the Fourth Amendment, and feels its protections need to be adjusted to account for ever-advancing technological devices:

"The Supreme Court has recognized that advances in 'police technology [can] erode the privacy guaranteed by the Fourth Amendment.' To guard against this, courts 'must take the long view, from the original meaning of the Fourth Amendment forward.'"

Kozinski seems unconcerned with the reason for one's desire to evade detection and surveillance.  Rather he is opposed to the general erosion of the right to privacy, because it is a slippery downward slope.  Even law-abiding citizens, he seems to indicate, don't want to live in a police state of constant surveillance.

I imagine he's right about that.

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."