Pubdate: Fri, 1 Oct 2010
Source: Sierra Sun (Truckee, CA)
Copyright: 2010 Sierra Sun
Author: Jim Porter
Note: Jim Porter is an attorney with Porter Simon, with offices in 
Truckee, South Lake Tahoe, Incline Village and Reno. He is a mediator 
and was the Governor's appointee to the Fair Political Practices 
Commission and McPherson Commission, both involving election law and 
the Political Reform Act.


How would you feel if someone planted a GPS device under your car 
when it was parked in your driveway and afterward tracked your 
travels? Does it change your answer if the GPS installer is the 
government? What if the car owner is a suspected marijuana grower?

GPS Planted

A drug enforcement agent (DEA) just happened to notice Juan 
Pineda-Moreno purchase a large quantity of fertilizer from a Home 
Depot. The agent was hanging in the fertilizer aisle? Per the court, 
it was the type of fertilizer frequently used to grow marijuana. How 
do they know that? Is the bag labeled "Perfect for Marijuana?"

Afterward, the DEA agents installed a GPS device on the underside of 
Pineda-Moreno's 1997 Jeep Grand Cherokee -- on seven different 
occasions, sometimes when the vehicle was parked on a public street, 
but on two occasions when the Jeep was parked in Pineda-Moreno's 
driveway, a few feet from the side of his trailer.

Arrest and Conviction

Information from the mobile tracking devices led to Pineda-Moreno's 
arrest and conditional guilty plea, reserving the right to appeal and 
suppress the evidence obtained by the GPS devices.

The three-judge Ninth Circuit U.S. Court of Appeals upheld the 
conviction finding that although the Jeep was parked within the 
"curtilage" of his home (the area closely around his home), the 
driveway was only a semi-private area frequented by newspaper 
delivery boys (when was the last time you saw one of them?), 
repairmen and neighborhood kids, so Pineda-Moreno had no reasonable 
expectation of privacy. Attaching the devices while the Jeep was in 
the driveway was not a search nor a violation of Fourth Amendment rights.

Passionate Dissent

The full panel of the federal Ninth Circuit denied to re-hear the 
matter "en banc."

The Ronald Reagan-appointed, conservative Chief Judge of the Ninth 
Circuit, Alex Kozinski, wrote a blistering dissent -- taking on the government.

Judge Kozinski is brilliant and passionate. If you are a libertarian 
or concerned about government intrusion in our lives, read his 
dissent, portions quoted below:

"Our court now proceeds to dismantle the zone of privacy we enjoy in 
the home's curtilage and in public. 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.

"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 has been much talk about diversity on the bench, but there is 
one kind of diversity that doesn't exist: No truly poor people are 
appointed as federal judges, or state judges for that matter.

"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.

"In determining whether the tracking devices used in Pineda-Moreno's 
case violate the Fourth Amendment's guarantee of personal privacy, we 
may not shut our eyes to the fact that they are just advance ripples 
to a tidal wave of technological assaults on our privacy.

"Companies are amassing huge, ready-made databases of where we've all 
been. If, as the panel holds, we have no privacy interest in where we 
go, then the government can mine these databases without warrant, 
indeed without suspicion whatsoever.

"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 deja 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."

This case most assuredly is heading to the U.S. Supreme Court. I will 
go out on a limb and predict the conservative U.S. Supreme Court will 
uphold the DEA.

Dedication to Austin

Today's column is dedicated to the loving memory of Austin Roberts, a 
fine young man who will be missed. Please consider a donation to 
Young Life Youth Group Truckee, P.O. Box 103 Truckee, CA, 96160.
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