Case o' The Week: SOS on GPS -- Pineda-Moreno and GPS tracking
Two years ago, almost to the day, Chief Judge Kozinski dissented from the denial of rehearing en banc on the first Pineda-Moreno decision (a seminal Fourth Amendment decision tolerating warrantless GPS tracking). He complained:
The Supreme Court in Knotts expressly left open whether twenty-four hour surveillance of any citizen of this country by means of dragnet-type law enforcement violates the Fourth Amendment’s guarantee of personal privacy. When requests for cell phone location information have become so numerous that the telephone company must develop a self-service website so that law enforcement agents can retrieve user data from the comfort of their desks, we can safely saw that such dragnet-type law enforcement practices are already in use. This is precisely the wrong time for a court covering one-fifth of the country’s population to say that the Fourth Amendment has no role to play in mediating the voracious appetites of law enforcement.
United States v. Pineda-Moreno, 617 F.3d 1120, 1126 (ord.) (Kozinski, C.J., dissenting from denial of reh'g en banc) (quotations and internal citation omitted); see also blog describing dissent here).
Two years, a Supreme Court decision, and another Ninth Circuit opinion on the case have come and gone --- and the Chief still does not have a square answer to his righteous Fourth Amendment beef. United States v. Pineda-Moreno, 2012 WL 3156217 (9th Cir. Aug. 6, 2012), decision available here.
Players: Decision by Judge O’Scannlain, joined by Judges N.R. Smith and DJ Wolle.
Facts: The DEA suspected Pineda-Moreno of running a marijuana grow. Id. at *1. With no warrant, they snuck onto his driveway and installed a tracking device on his Jeep. Id. Agents also stuck tracking devices to the Jeep while it was parked on public streets. Id. The tracking data (and info from earlier surveillance) lead to arrests, searches, and a federal prosecution. Id. Pineda-Moreno challenged the search, the original panel upheld it, a closely-divided en banc vote failed, cert. was filed.
The Supremes then decided United States v. Jones, 132 S.Ct 945 (2012). “Jones holds that the government’s installation of a Global Positioning System (GPS) tracking device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’ under the Fourth Amendment.” Id. at *2 (citing Jones, 132 S. Ct. at 949). The Supreme Court remanded Pineda-Moreno in light of Jones.
Issue(s): “In this matter which arose prior to the Supreme Court’s decision in . . . Jones . . ., we must decide whether to apply the exclusionary rule where law enforcement agents attached mobile tracking devices to the underside of a defendant’s car and used those devices to track the car’s movements.” Id. at *1.
Held: “[T]he agents’ conduct in attaching the tracking devices in public areas and monitoring them was authorized by then-binding circuit precedent. Those attachments yielded the critical information that justified stopping Pineda-Moreno. Whatever the effect of Jones, then, the critical evidence here is not subject to the exclusionary rule.” Id. at *3 (citation and footnote omitted).
Of Note: Nice, one supposes, to have the Court acknowledge the new Supreme Court law on curtilage intrusions, and conceding that cell tracking is a “search.” Id. at *3. The battle has shifted, however, to another front: the Leon / Herring / “Good Faith” pass for unlawful searches (a trend manifested most lately in Davis v. United States, 131S. Ct. 2419 (2011)).
Relying on Davis, Judge O’Scannlain concludes that these lousy searches survive suppression because – even if unconstitutional – they were authorized by Ninth precedent when undertaken. Id. at *3. “Davis held that ‘searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.’” Id. at *2 (citation omitted). Flag Davis – its frustrating tolerance of unconstitutional searches will be the subject of many brouhahas this year.
How to Use: Whole swaths of Ninth law were (we think) mowed down by Jones: a possibility conceded by Judge O’Scannlain in Pineda-Moreno. Id. at *4 (discussing McIver, Hufford, Miroyan, Maisano and Magana). To echo C.J. Kozinski’s “1984”theme from the original litigation of this case, ‘tis now a Brave New World. If your case involves warrantless cell tracking, or trespassing onto a driveway, don’t be dissuaded by old Ninth law – Jones will have most or all of those cases in the dustbin by next summer.
For Further Reading: If this all seems vaguely familiar, think back to the Ninth post-Gant. A very similar question of retroactivity and Herring came up after that Supreme Court Fourth Amendment decision. The Ninth decided it precisely the right way, that time. See United States v. Gonzalez, 598 F.3d 1095 (9th Cir. 2010) (ord. denying reh’g en banc); see also blog entry here.
The only glitch? Gonzalez preceded the Supreme Court’s decision in Davis by a year.
Image of GPS tracking from http://www.advantrack.com/gps-tracking-atti-software/software.aspx
Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org