Nathan Fan is a JD Candidate at Osgoode Hall Law School
In a decision with “big brother” dimensions, the 9th Circuit on August 12, 2010 affirmed a ruling that the Fourth Amendment right is not violated when law enforcement agents enter a driveway without a warrant to plant a surveillance device on one’s car. With 60 million people living under the court’s jurisdiction, the decision could significantly affect the level of privacy that many Americans may expect within the “curtilage” of their homes.
In May of 2007, as Juan Pineda-Moreno was making his way home from a Home Depot with a suspiciously large quantity of fertilizer and irrigation equipment, DEA agents followed Pineda-Moreno’s Jeep to his trailer home. Suspected of operating a marijuana grow-op, the DEA agents monitored Pineda-Moreno’s whereabouts over the next four months by attaching GPS tracking devices on multiple occasions to the underside of his Jeep. On one of these occasions, the DEA agents snuck onto Pineda-Moreno’s driveway (part of his home’s curtilage) in the middle of the night to attach the tracking device onto his Jeep, which was parked a few feet away from Pinedo-Moreno’s trailer. The DEA continued to monitor Pinedo-Moreno’s movements, which eventually led to his arrest upon discovery of two garbage bags full of marijuana in his trailer and his association with a marijuana grow-op.
In November 2007, a district court convicted Pineda-Moreno of conspiracy to manufacture marijuana. Pineda-Moreno moved to suppress the evidence obtained from the mobile tracking devices, arguing that the DEA agents violated his Fourth Amendment rights (which ensure against unreasonable search and seizure). Specifically, Pineda-Moreno argued that by sneaking onto his driveway and attaching mobile tracking devices to the undercarriage of his Jeep, the DEA agents invaded an area in which he possessed a reasonable expectation of privacy, thereby violating his Fourth Amendment rights. The district court denied his motion to suppress the evidence and Pineda-Moreno appealed to the 9th Circuit, where a three-judge panel ruled on the motion.
In its January 11, 2010 decision, the 9th Circuit panel held that the DEA’s actions in entering Pineda-Moreno’s driveway and attaching the GPS tracking devices did not violate Pineda-Moreno’s Fourth Amendment rights. Although the government had conceded that the DEA agents had in fact entered Pineda-Moreno’s “curtilage” in order to plant the tracking devices, the panel held that Pineda-Moreno did not have a reasonable expectation of privacy on his driveway as it was “only a semi-private area”. The panel noted that Pineda-Moreno’s driveway had no gate, no “No Trespassing” signs, and no features that prevent the public from viewing the driveway from the street. This openness was an invitation to the public. The fact that neighbourhood children could walk up to the driveway and crawl under his Jeep to retrieve a lost ball or runaway cat, a situation where Pineda-Moreno “would have no grounds to complain”, was an analogy for the actions of the DEA agents.
The panel also rejected Pineda-Moreno’s motion on the basis that the tracking devices did not constitute a “search” recognized by the Fourth Amendment. By continuously monitoring the location of the Jeep, the agents had not conducted a “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”.
As this was only a three-judge panel decision, Pineda-Moreno petitioned for a rehearing en banc by a full court of the 9th Circuit. A majority of the full court denied Pineda-Moreno’s petition, upholding the reasons of the panel (see decision). However, there was a strong dissent from Chief Judge Kozinski and Judge Reinhardt. Chief Judge Kozinski was particularly unsettled by the Orwellian ramifications of the majority’s decision, lamenting that “1984 may have come a bit later than predicted, but it’s here at last”. In particular, Kozinski dissented on the majority’s “breezy opinion” on the sanctity of one’s curtilage. The Chief Judge stated that ‘curtilage’ is interpreted in modern times as to mean the portions of a homeowner’s property so closely associated with “sanctity of a man’s home and the privacies of life” as to be considered part of it. This would include one’s driveway, as was conceded by the government at trial. It was emphasized that “once it is determined that something is part of the curtilage, it’s entitled to precisely the same Fourth Amendment protections as the home itself” – a principle clearly laid out and endorsed by the Supreme Court repeatedly.
Kozinski was also worried about the panel’s rationale for subjecting Pineda-Moreno’s curtilage to a reasonable expectation of privacy. By this rationale, it would also require a homeowner to establish a reasonable expectation of privacy in his own bedroom. Further, it was argued that the level of openness of Pineda-Moreno’s driveway does not automatically do away with a reasonable expectation of privacy: “there are many parts of a person’s property that are accessible to strangers for limited purposes…[but] this doesn’t mean that we invite neighbours to use the pool, strangers to camp out on the lawn or police to snoop in the garage.”
In liberal fashion, Kozinski (a leading Reagan-appointed conservative) heartily criticized the panel’s “unselfconscious cultural elitism”. Kozinski wrote: “No truly poor people are appointed as federal judges, or as state judges for that matter… [they] are selected from the class of people who don’t live in trailers or urban ghettos”. As a result of this decision, the rich will be able to protect their privacy with the aid of fences and gates, while “the vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel’s ruling”.
Kozinski was left with considerable unease, summarizing the decision as “something creepy and un-American about such clandestine and underhanded behaviour. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu.” These sentiments were echoed by Judge Reinhardt’s dissent: “Today’s decision is but one more step down the gloomy path the current Judiciary has chosen to follow with regard to the liberties protected by the Fourth Amendment. Sadly, I predict that there will be many more such decisions to come.”
As with the dissent, the decision has raised significant concerns with privacy law spectators. However, for those who champion the position of the dissent, they have some solace in the fact that some circuits have clamped down on big brother’s encroaching hand. Just weeks earlier from this decision, the Court of Appeals for the D.C. Circuit firmly rejected claims that the government has an unfettered right to install GPS tracking devices to a car without warrant (see decision here). In a similar situation to Pineda-Moreno’s, FBI agents had entered Lawrence Maynard’s private property and planted GPS tracking devices to his vehicle and monitored his movements on a 24-hour basis for a month. While it was argued by the government that what one does in public view is not within the scope of one’s expectation of privacy, the D.C. Circuit held the extended monitoring in this case was beyond what an individual would reasonably expect, noting that “[w]hen it comes to privacy…the whole may be more revealing than its parts.”
Of course the line drawing between privacy and law enforcement efficacy is nothing new. But in an age when technology provides the government with a very large toolbox for tracking the activities of its people, it is that much more essential for a democratic society to find the right balance between facilitating effective law enforcement and turning the country into a reality television program. The circuit courts of America are struggling with new issues borne of GPS tracking and the extent to which the government can employ such forms of monitoring in light of Fourth Amendment rights. Such controversial issues like this will likely make its way to the Supreme Court.
Although the U.S. gets the lion’s share of the debate when it comes to these privacy issues, Canada has also had to deal with the balance between reasonable expectations of privacy and effective government search and seizure (e.g. see R. v. Tessling where the RCMP used infrared heat sensors on suspicion of a marijuana grow-op). As technology advances, Canada’s analogous section 8 Charter right will likely be before the courts again before long.