9th Circuit to reconsider GPS tracking/privacy case

By Scott Forsyth

The Daily Record Newswire

Conservatives accuse the Ninth Circuit Court of Appeals, based in San Francisco, of having a liberal bias and being prone to reversal by the U.S. Supreme Court. You could not tell the bias from a 2010 decision, which was a resounding victory for law enforcement.

Agents of the Drug Enforcement Agency suspected one Juan Pineda-Morena of growing marijuana. To gather evidence they attached GPS tracking devices to the underside of his car. Sometimes they did so after he parked his car in a public place. Twice they walked up his driveway in the dead of night to place the devices. They monitored his movements continuously for four months. The information gathered led to Pineda-Morena's arrest and conviction.

Pineda-Morena challenged the constitutionality of the GPS surveillance, contending it was a search requiring a warrant. The Court of Appeals held to the contrary in sweeping language.

Even though the driveway was private property adjacent to the defendant's house, the agents could walk up it and investigate the exterior of the car. The driveway was only a "semi-private area," since persons could and did access it from the street to deliver newspapers, retrieve balls, and the like.

The long-term monitoring was also not a search, because what was tracked was the movement of the vehicle in public places. The GPS devices only made the agents "more effective" in their surveillance of the vehicle, United States v. Pineda-Morena, 591 F.3d 1212 (9th Cir. 2010).

In January 2012, the Supreme Court removed the underpinnings of the Pineda-Morena decision. It unanimously held the placement of a GPS device on a car and the monitoring of the car's whereabouts nonstop for 28 days to be a search, United States v. Jones, 132 S.Ct. 945 (2012).

The justices did split on the rationale. Five viewed the placement to be a trespass on private property, reviving a view of the Fourth Amendment not heard from in 45 years. Four believed the prolonged and intrusive nature of the tracking violated a person's reasonable expectation of privacy.

Pineda-Morena was on appeal to the Supreme Court when Jones was decided. Consequently, the Supreme Court sent the case back to the Ninth Circuit for reconsideration.

The Ninth Circuit must find the behavior of the DEA agents to be a search. Then the court will have to confront the question left open by Jones -- must police obtain a warrant to perform GPS surveillance?

In Jones the government argued a warrant was not necessary. The privacy interest of the car-owner is minimal and the value to law enforcement of the information gleaned from the tracking is great. Considering the totality of the circumstances, the invasion of personal security occasioned by GPS surveillance is reasonable.

Actually, "the basic rule [is] that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment," Arizona v. Gant, 556 U.S. 332, 338 (2009).

There are a few exceptions to the rule, such as searches of an automobile incident to an arrest "when it is reasonable to believe that evidence of the offense might be found in the vehicle," airport and border searches, and pat-downs of persons that officers encounter in the field for weapons.

The judge or the magistrate is the "objective mind" that balances the desire of the police to enforce the law against the citizen's right to privacy. The framers denied government the power to conduct searches in its discretion. They recognized "power is a heady thing; and history shows that the police acting on their own cannot be trusted," McDonald v. United States, 335 U.S. 451, 455 (1948).

Obtaining a warrant is relatively easy. On the other hand GPS surveillance enables the government to assemble massive amounts of very personal data -- "trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on," People v. Weaver, 12 N.Y.3d 433, 442 (2009). Having a judge or a magistrate review the application for a warrant acts as a check on the surveillance.

In Weaver, the New York Court of Appeals ruled local and state police could not perform GPS surveillance without a warrant. It relied on the Search and Seizure clause in the New York State Constitution.

The Ninth Circuit should extend the rule to the federal level. Conservatives, at least classical conservatives, and liberals alike would applaud such a decision.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Fri, May 11, 2012