While enjoying breakfast this morning and skimming the news headlines I came across a story on CNN. The headline read "Police can secretly tack GPS on your car" (http://www.cnn.com/2010/CRIME/08/27/oregon.gps.surveillance/index.html?hpt=T1). The story piqued my interest and lead me to read the Ninth Circuit's latest denial of Pineda-Moreno's appeal of the warrantless entry on his drive way to install and later use a GPS tracking device on his car. After a decision by a three judge panel the full court wouldn't reconsider the appeal and affirmed the district court.
Out of Touch with Society
The dissent rips into the panel's decision. It begins by analyzing why the court refused to recognize the curtilage (a "quaint word" that describes in modern law mean "those portions of a homeowner’s property so closely associated with
the home as to be considered part of it") as a place where Pineda-Moreno, and any person really, enjoyed a reasonable expectation of privacy. Supreme Court precedent, neatly laid out in the dissent, supports a reasonable expectation of privacy in the curtilage.
Yet the majority, after the government conceded the driveway was curtilage, reasons that it isn't protected because the "driveway was open to the public in that strangers wishing to reach the door of his trailer to deliver the newspaper or to visit someone would have to go through the driveway to get to the house.” Pineda-Moreno,591 F.3d 1212, 1215. Ignoring the protection provided when the mail is delivered or the electric meter read, the court finds that because the police can do what an "uninvited child" can do, crawl under a fence or under a car, there is no reasonable expectation of privacy.
As the dissent notes the majority is out of touch with the "vast majority" of citizens in the Circuit (and truly across the nation) who:
"...will see their privacy materially diminished by the panel’s ruling.
Open driveways, unenclosed porches, basement doors left
unlocked, back doors left ajar, yard gates left unlatched,
garage doors that don’t quite close, ladders propped up under
an open window will all be considered invitations for police
to sneak in on the theory that a neighborhood child might, in
which case, the homeowner “would have no grounds to complain.”
The court more than affirming a bad district court decision, affirmed that many of the judges live in a bubble.
Out of Touch with Technology
More than leaving unenclosed areas unprotected the Ninth Circuit, like many courts, doesn't appear to understand technology. The majority compares the GPS used in Pineda-Moreno, to a beeper used in another case in 1983!(United States v. Knotts, 460 U.S. 276 (1983)). In Knotts the police attached a beeper, a radio transmitter that emitted only periodic signals, and which merely indicated when police were getting closer. GPS technology by contrast provides a pinpoint location at any time and virtually all the time.
The majority doesn't reason that there is a diminished expectation of privacy given advances in technology (a colorable argument in an age of Twitter, Smartphones, and Facebook). It closes its eyes to the leaps made in technology. Instead, it reasons the "government can obtain this information without implicating the Fourth Amendment" because "movements through public spaces" may be "observed by an actual or hypothetical observer" destroying any expectation of privacy. The dissent quickly highlights the flaw in this reasoning:
"You can preserve your anonymity from prying eyes, 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."
The court doesn't understand the technology and doesn't seem interested in taking time to ask questions. Instead it hobbles together an opinion based on flawed reasoning and out of date assumptions. The D.C. Circuit took a different approach, leading no doubt to a decision ultimately by the U.S. Supreme Court. It's unlikely the reasoning and the poor attention to precedent will survive review by the high court.
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