Appeals court supports GPS tracking

Local law enforcement agencies can now legally enter private driveways, install GPS tracking devices onto vehicles there and track the owner without having to get a warrant, the 9th Circuit Court of Appeals has ruled.

“We do have access to that equipment and there have been occasions when we've used it,” said Capt. Eben Bratcher, Yuma County Sheriff's Office public information officer, adding they only do so where it is allowed by law. “We follow the law in its application in every circumstance.”

The Yuma Police Department also has access to the GPS tracking technology.

“We are aware of the technology but have not used them in the past,” said Sgt. Clint Norred, YPD public information officer.

The 9th Circuit has jurisdiction over Arizona and several other Western states. The ruling was made in January of this year by Diarmuid F. O'Scannlain and N. Randy Smith, 9th Circuit judges, and Charles R. Wolle, senior 9th Circuit judge, after an appeal by Juan Pineda-Moreno, a man convicted of growing marijuana in Oregon who claimed his Fourth Amendment rights had been violated by police.

Over a four-month period in 2007, U.S. Drug Enforcement Administration agents repeatedly monitored Pineda-Moreno's Jeep using various types of mobile tracking devices to gather enough information to make an arrest, the court stated.

“Each device was about the size of a bar of soap and had a magnet affixed to its side, allowing it to be attached to the underside of a car. Agents installed these devices on the underside of Pineda-Moreno's Jeep on seven different occasions.”

On two of those occasions, the Jeep was parked in Pineda-Moreno's driveway a few feet from the side of his trailer, the court revealed.

The three-judge panel stated since the driveway leading up to the trailer was open and agents did not observe any fence, gate or “No Trespassing” signs indicating that they were not to enter the property, they were legally allowed to come onto the property and place the GPS devices.

According to the court, the agents entered Pineda-Moreno's driveway between 4 and 5 a.m. and attached the tracking devices to the Jeep. Once in place, the tracking devices recorded and logged the precise movements of the vehicle.

The curtilage is the portions of a homeowner's property so closely associated with the home as to be considered part of it, explained Alex Kozinski, chief judge of the 9th Circuit.

This includes the walkway leading from the street to the house, the stairs from the walkway to the porch, the porch, attached garage, the detached shed, the front lawn, the driveway and the backyard (if fenced).

The Jeep was parked in Pineda-Moreno's driveway, which is only a semiprivate area having no features to prevent someone standing in the street from seeing the entire driveway, the panel stated.

Kozinski, who opposes the ruling, was disturbed by that assumption. “The panel holds that Pineda-Moreno was required to separately establish a reasonable expectation of privacy in the curtilage,” he wrote. “That ... is like requiring the homeowner to establish a reasonable expectation of privacy in his bedroom.”

The panel that made the ruling also believed since Pineda-Moreno allowed the mail carrier and other workers to walk through his driveway, as well as visitors coming to call, that by default meant the agents could do the same.

“If a neighborhood child had walked up Pineda-Moreno's driveway and crawled under his Jeep to retrieve a lost ball or runaway cat, Pineda-Moreno would have no grounds to complain,” they stated. “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 his home.”

Kozinski disagreed. “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,” he wrote.

“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. 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.”

In conclusion, the panel ruled that the agents did not invade his property, they conducted no search and there was no Fourth Amendment violation since Pineda-Moreno could not prove they had entered a private area.

According to Kozinski, now only 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.

The next step to appeal the 9th Circuit would be the U.S. Supreme Court.