Saturday, January 16, 2010

Case o' The Week: Large Amounts of Fertilizer - Pineda-Moreno and GPS Tracking

Can a cop legally crawl underneath your car, in your private driveway, several feet from your home, in the dead-middle of the night, and install a GPS tracking device with which he'll follow your every move for the next week -- all without a search warrant?

Yep, in the Ninth (at least for now).
United States v. Pineda-Moreno, __ F.3d __, 2009 WL 59215 (9th Cir. Jan. 11, 2009), decision available here.

Players: Decision by Judge O’Scannlain (below right).

Facts: A DEA agent noticed Pineda-Moreno, and others, buying large amounts of fertilizer at Home Depot. Id. at *1. “Recognizing the fertilizer as a type frequently used to grow marijuana,” (!?!) the agent followed the men to a Jeep and saw them drive away. Id.

A month later, DEA learned that the men were buying large quantities of groceries, irrigation equipment, and deer repellant. Id. Eventually, they followed the men back to a trailer rented by Pineda-Moreno. Id. Over the next four months, the agents tracked Pineda-Moreno using a magnetic GPS device placed under the Jeep. Id. They put GPS devices on the Jeep seven times; five in public places, and twice in his driveway, a few feet from his trailer. Id. There was no gate or “No Trespassing” sign leading to the driveway. Id. [Ed. Note: The agents had no search warrant].

GPS tracking revealed Pineda-Moreno leaving a marijuana grow; later searches revealed two garbage bags full of marijuana. Id. After his suppression motion was denied Pineda-Moreno entered a conditional plea of guilt and brought this appeal. Id.

Issue(s): “Pineda-Moreno argues that the agents violated his Fourth Amendment rights by entering his driveway between 4:00 a.m. and 5:00 a.m. and attaching the tracking devices to the underside of his Jeep.” Id. at *2.

Held: “Pineda-Moreno cannot show that the agents invaded an area in which he possessed a reasonable expectation of privacy when they walked up his driveway and attached the tracking device to his vehicle. Because the agents did not invade such an area, they conducted no search, and Pineda-Moreno can assert no Fourth Amendment violation.” Id. at *3.

Of Note: Pineda-Moreno is a disappointing curtilage decision, treating a driveway as a “semi-private area” that doesn’t deserve heightened Fourth Amendment protection (even when the agents are crawling around, feet from the defendant’s home, at 4:00 a.m. at night). Id. at *2.

More troubling, however, is the Court’s brief discussion of a very complex issue: the use of a sophisticated technology not generally available to the public (GPS tracking) without a warrant. Id. at *3. While an ‘82 Supreme Court case, Knotts, tolerated the use of a beeper in a car, there is a compelling argument that the Supreme’s later thermal-imaging decision in Kyllo modified the Fourth Amendment analysis for sophisticated surveillance technologies. Id. at *3. Pineda-Moreno gives this compelling argument short shrift, particularly in light of three state supreme courts that have held that the warrantless use of tracking devices is unconstitutional under their respective state constitutions. Id. at 4 & n.2 (discussing contrary authority).

How to Use: Like Ninth Circuit authority on the searches of computers preceding Comprehensive Drug Testing, Pineda-Moreno is nineteenth-century analysis glommed onto to twenty-first century technology. The warrantless use of GPS tracking is an unsettled area, likely to provoke Circuit splits and Supreme Court review, and is an issue worth preserving. (The D.C. Circuit has this issue before it now in Jones: see blog here.)

Note also that Pineda-Moreno assumes that a GPS unit only tracks a car in places where a cop could follow anyway. That is untrue: a GPS unit continues to transmit or collect location-data just as regularly when a car is driving on private land where police can not follow without a warrant. Even if Pineda-Moreno survives, it should be distinguished in cases where GPS monitoring revealed the movements of a defendant on land off-limits to cops without warrants.

For Further Reading: Our brainy friends at the Electronic Frontier Foundation have been fighting the good fight on the government’s use of warrantless GPS surveillance. For a good discussion of the enlightened state court decisions clamping down on this abuse, visit the EFF blog here.

Image of the Hon. Diarmuid O'Scannlain from Image of GPS tracking device from

Steven Kalar, Senior Litigator N.D. Cal. Website at


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