What do you all think of this ruling?

[hifigator]

"DEA agents placed a GPS tracking device on a suspected marijuana grower's car, that was parked in his driveway. They later retrieved the information and discovered that the vehicle had been drivenn to several remote locations, where pot was being grown. There was no warrant issued (authorizing, or for using the) device. The grower was convicted and received a 51-month sentence, which he appealed on the grounds that sneaking onto a persion's driveway and secrelty tracking their car violates a person's reasonable expactation of privacy. The Ninth Circuit refected his appeal without comment. The case could reach the Supreme Court. David Rivkin, a former Justice Department attorney, said that a person couldn't automatically expect privacy, just because something is on private property. 'You have to take measure -- to build a fence, to put the car in the garoage' or post a no-tresspassing sign, he said. "If you don't do that, you're not going to get the privacy."
Source: CNN


I would like to think that regardless of whatever position we have on the particular issue of marijuana, we would consider such an invasion to be unacceptable, at least from the facts that we have here.

I would expect this to reach the Supreme Court.

But if this ruling is upheld, then where does it end? Suppose, in placing the unauthorized device, the agent notices something suspicious in the back seat of the vehicle, but out of sight from anyone other than an intruding person?

If you want to take it to another extreme, suppose said agent "discovers" a box of Cuban cigars in the back seat, while placing the tracking device ... again, I ask, using this logic, where does it end?

If there had been probable cause that an individual was, in fact a grower, then wouldn't a search warrant seem to be the likely path of action?

Just askin ....

[SSHoya]

If you can't do the time, don't commit the crime.

US v. Pineda-Moreno, (9th Cir. Jan. 11, 2010)

Attaching a GPS Tracking Device to a Vehicle Parked within the Supect’s Driveway

As to the issue of whether attaching a GPS tracking device to Pineda-Moreno’s vehicle as it was parked in his driveway, the prosecution conceded that the vehicle was located within the suspect’s curtilage. However, the Ninth Circuit Court of Appeals noted that they have previously held that a driveway is only considered a “semi-private” area.vi The court then stated that, in order to determine if a person has a reasonable expectation of privacy in a driveway, one must look at the specific features of the driveway such as enclosures, barriers, lack of visibility from the street, “no trespassing” signs or the nature of activities performed upon it.vii In this case, Pineda-Moreno articulated no such features of his driveway. In fact, it was noted that any visitor to the house would likely walk up the driveway. Thus, the court held “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.” Therefore, the court held that the agents did not violate Pineda-Moreno’s Fourth Amendment rights when they attached the GPS tracking device to his vehicle as it was parked in his driveway. Further, the court held that it did not matter that the agents attached the device to his car at an unusual time of day, particularly 4:00a.m. to 5:00a.m.

On a final note, the court found that the use of a GPS tracking device to record the travels of a vehicle on public roadways and areas was akin to the use of the “beeper” tracking device that was held to be constitutionally reasonable in the United States v. Knotts.viii

Therefore, the Ninth Circuit Court of Appeals affirmed the district court’s denial of the motion to suppress.

[SSHoya]

Plain view doctrine gets you evidence of a crime/contraband in the back seat of a car.

The Supreme Court decision in Horton v. California summarized the plain view doctrine as having two essential ingredients: “First, not only must the item be in plain view; its incriminating character must also be immediately apparent. Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.”

Evidence may be exposed to plain view but may require warrant or other exception to be seized because it requires you to make an entry into private premises. A suspect might have an illegal marijuana plant growing in a pot inside a residential window, for example.

Although you could see it plainly from the sidewalk, the plain view doctrine would not allow you to make a warrantless entry into the residence to get it. It is only where you are able to seize the property without having to violate the Fourth Amendment in getting to it that the plain view doctrine applies.

(I am a little bit bored in the Sinai, today)

[AustinHoya03]

If this case reaches the Supreme Court, which seems fairly unlikely to me, it seems more likely to get there on the tracking device issue than the government "invasion" of private property you're so upset about. Courts have long held that ownership of a piece of land alone does not create a privacy interest. If you believe otherwise (and it appears you do), this link will really get your blood boiling.

en.wikipedia.org/wiki/Open_fields_doctrine

Oct 13, 2010 1:45:51 GMT -5 hifigator said:

If there had been probable cause that an individual was, in fact a grower, then wouldn't a search warrant seem to be the likely path of action?

Sure: if he was growing the marijuana in his house. The information you've provided states he was growing the marijuana in remote locations. How do you think law enforcement should investigate this type of grow operation?

[SSHoya]

I concur with Austin on what may reach SCT. When I was still actually engaged in the practice of law last year, I seem to recall split in the authorities about whether a warrant was required to slap on a GPS tracking device on a vehicle. But I don't think it is yet a circuit split.

[hifigator]

Yeah, my question wasn't clear. You are correct that the particular issue of law here was specifically whether an individual has the right to expect privacy in his driveway. That isn't really the issue I was intending to raise. In that regard, the "semi-private" ruling is reasonable. In other words, I wouldn't object to the specific action of placing the GPS unit on the vehicle while in the driveway. My objection is really the placing it to begin with. If they have probable cause, then get a search warrant. Then I would have no problems with the implementation of such a device. But if they don't have the evidence for a warrant, then I think that such "extended surveillance" should be a violation of privacy. That's really the matter of rights that I am asking you all about. I agree that that is the particular issue of law likely to reach the Supreme Court.

The bottom line is that if they didn't have the evidence to know that he was engaging in the criminal and even felonious acts, then using the GPS to acquire such evidence is nothing more than fishing and I have a major issue with authorities fishing.

What say you all on that question?

[SSHoya]

You don't need probable cause to start an investgation, and law enforcement is not going to waste its time slapping on GPS trackers on cars unless they have some inkling that the individual may be involved in criminal activity. That being said, you'd fall in line with the district courts that have held a warrant is required for use of GPS trackers. Other district courts disagree. For example, the FBI must have predication to start an investigation. This is set forth in the FBI's Domestic Investigation and Operations Guide (DIOG). As an internal matter, the FBI doesn't slap on GPS trackers without this predication even though it does not amount to probable cause. So your bottom line by and large isn't going to occur. I would hazard to guess that most law enforcement agencies, state and federal, don't have enough resources to "fish" in the way you suggest. Moreover, they are not going to use their limited number of GPS tracking devices in a fishing expedition. I don't think you think law enforcement randomly goes around slapping these things on cars. They generally have some type of suspicion.

[SSHoya]

DC Circuit ruled on this issue last month.

llrmi.com/articles/legal_update/gps_tracking_dc.shtml

[Boz]

Oct 13, 2010 14:45:17 GMT -5 hifigator said:

The bottom line is that if they didn't have the evidence to know that he was engaging in the criminal and even felonious acts,

Obviously they did know.

Since, you know, they didn't put the GPS device on his neighbor's car after all.

What kind of drug dealer worth his salt doesn't have a GPS Tracker Detection Device? Hell, you can get 'em for $500 bones.

[Buckets]

Oct 13, 2010 15:15:17 GMT -5 SSHoya said:

I don't think you think law enforcement randomly goes around slapping these things on cars. They generally have some type of suspicion.

Like comments made by your roommate in a blog

www.wired.com/threatlevel/2010/10/fbi-tracking-device/all/1

[hifigator]

Don't get me wrong. I'm not some conspiracy theorist looney, and I know that the vast majority of the time, law enforcement personnel at all levels are just "doing their job." I also know that sometimes rules are bent a little bit. But still, my point was that if they have enough evidence for a warrant, then I'm fine with tactics such as tracking and the sort. But if not, I don't think much of the practice of using such tactics to generate enough evidence for the warrant. I think that sort of gets back in a roundabout sort of way to the innocent until proven guilty part.

[hifigator]

I'm glad to see the DC apellate court ruling, although the particular issue of law they looked at was a slightly different question. Still, I side with the ruling. But either way, I think this is headed for the Supreme Court. As technology changes, we will need interpretations specific to the new technologies.

[AustinHoya03]

www.washingtonpost.com/politics/supreme-court-warrants-needed-in-gps-tracking/2012/01/23/gIQAx7qGLQ_story.html