The handwriting has been on the wall for quite some time; and now it’s official, at least for nine far west states – the government can place a GPS tracking device on your car while it is parked on your own property; then track and record your movements for an indefinite period of time, without ever securing a warrant to do so. This frightening situation is the result of a recent decision by the Ninth Circuit Court of Appeals.
So far, not all federal circuits agree with this decision, and at least one – in the District of Columbia — just days before the Ninth Circuit’s decision, had reached the opposite conclusion. Clearly, however, this ruling will embolden federal agents and prosecutors in other parts of the country to engage in similar, privacy-invasive and constitutionally suspect surveillance.
This case began with a Drug Enforcement Administration agent’s suspicions in May 2007, that an Oregon man by the name of Juan Pineda-Moreno was buying products from a local Home Depot that were of the type and quantity suspected of use in cultivating marijuana. To make their job of tracking Pineda-Moreno easier, the agents decided to sneak onto his driveway in the wee hours of the morning and attach a small GPS tracking device to the underside of his car. Over a four-month period, and replacing the tracking device periodically, the agents eventually were led to a marijuana plot.
The controversy eventually found its way to the Ninth Circuit, which early this year affirmed the government’s actions. On August 12th, the court refused a request by Pineda-Moreno to have the entire panel of circuit judges decide the matter; thus giving the feds a green light for warrantless GPS tracking.
A blistering and unusually blunt dissent to the Ninth Circuit’s opinion was issued by Chief Judge Alex Kozinski (a Reagan appointee). In his dissent, he notes the frightening ramifications for homeowners of the court’s action.
Kozinski correctly concludes that, if allowed to stand, the Ninth Circuit’s ruling will completely “dismantle the zone of privacy” long-recognized for areas adjacent or connected to one’s house. He then properly chastises his fellow jurists for concluding – against all common-sense understanding — that a homeowner has no “expectation of privacy” in their driveway or their private vehicle parked thereon.
Laughably, the majority judges apparently believe that because the homeowner in this case failed to post “No Trespassing” signs on his property, or to seal off his driveway with a fence or a gate, he consented to have police surreptitiously enter his property in the dead of night and place a tracking device on his car. In this, the judges absurdly likened the actions of the agents to a neighborhood child retrieving an errant baseball from underneath the homeowner’s car.
In an even more ludicrous twist of common sense, the majority decided that because the undercarriage of a vehicle is not observable by the public, it is permissible for a GPS tracking device to be placed underneath the car, but perhaps not okay for the very same device to be placed in plain view on the door panel. The theory apparently being that what is not readily seen by the public is an area over which a person has no “expectation of privacy.”
The Ninth Circuit’s opinion – as absurd on its face as it is — puts directly at risk nearly one-fifth of the country’s population in the western states; and indirectly, homeowners in all 50 states. And even if the Supreme Court steps in to resolve the inter-circuit disagreement, there’s no guarantee its current configuration would agree with Judge Kozinski.
At least for now, homeowners should watch what they buy at Home Depot, put “No Trespassing” signs on their property, gate their driveways, shoo any wandering kids away, and check under their cars every day.