According to the latest ruling out of the Ninth Circuit Court, it’s perfectly legal for federal agents to secretly plant a GPS locator on your car in the middle of the night, even if it’s parked in your driveway, and then use said locator to track your movements as they see fit. Even without a warrant.
In the case, DEA agents secretly planted a GPS locator on Juan Pineda-Moreno’s Jeep at night while it was parked outside his home, and then used it to pinpoint the illegal marijuana crop he was cultivating. Pineda-Moreno appealed the case on the grounds that the secret tracking violated his Fourth Amendment rights, but a three-judge panel denied his appeal in January and a larger panel ruled this month against reconsidering the case.
The ruling, which sets precedent for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, holds that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures” doesn’t apply to driveways.
This decision upsets years of legal precedent establishing “curtilage” (legalese for the property surrounding a house) as protected under the Fourth Amendment, and represents an officiously narrow interpretation of the “open fields doctrine” test established in United States v. Dunn in 1987. In that case, DEA agents tracked a large shipment of chemicals used to manufacture drugs to Mr. Dunn, a meth lab operator. Agents crossed his fence, looked through the barn window, found the meth lab, executed a search warrant and convicted Dunn of conspiracy to manufacture and distribute methamphetamine.
The prosecution argued that, as per Hester v. United States, Fourth Amendment protection does not extend to the “open fields.” Dunn argued that the case didn’t concern an “open field”; it concerned a barn surrounded by barbed wire. Dunn’s conviction was thrown out by the Supreme Court, and established the four-point test of whether curtilage privacy protections apply.
From the ruling, “curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.”
In the majority opinion, the Ninth Circuit Court ruled that since Pineda-Moreno’s driveway wasn’t enclosed and was open to passersby like delivery men and neighborhood children, it didn’t pass the Dunn test for curtilage. Never mind that in the Dunn opinion, the majority writes “we do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a “correct” answer to all extent-of-curtilage questions.”
This strict application of precedent really means that only people who can afford to fence off their driveways have a reasonable expectation of privacy, as pointed out by Chief Judge Alex Kozinski in his dissenting opinion. Though he was appointed by Reagan and remains a vocal conservative in the predominantly liberal Ninth Circuit, his dissenting opinion makes him sound like a hardline leftist.
“There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist,” he wrote. “No truly poor people are appointed as federal judges, or as state judges for that matter.”
But the Ninth Circuit doesn’t make precedent for the whole country, and the U.S. Court of Appeals for the District of Columbia recently ruled that extended tracking via GPS requires a warrant. But, since conflicting precedent has now been set on the West Coast, this issue is bound for the Supreme Court. Hopefully, they’ll side with the rights of the people.