GPS and the Fourt Amendment - Is it 1984 or 2010?

GPS and the Fourth Amendment - Is it 1984, or 2010?

Did you know that government agents can sneak onto your property in the middle of the night, attach a GPS device to your car and keep track of everywhere you go? This doesn't violate your Fourth Amendment rights, because you do not have any reasonable expectation of privacy in your own driveway — and no reasonable expectation that the government isn't tracking your movements.

That is the rule that now applies in California and eight other Western states. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, which covers this vast jurisdiction, in January of thus year decided that the government can monitor you in this way virtually anytime it wants — with no need for a search warrant. U.S. v. Pineda-Moreno (9th Cir. - Jan. 11, 2010).

More disturbingly, a larger group of judges on the circuit, who were subsequently asked to reconsider the ruling, last month decided to let it stand.

In 2007, Drug Enforcement Administration (DEA) agents decided to monitor Juan Pineda-Moreno, an Oregon resident who they suspected was growing marijuana. They snuck onto his property in the middle of the night and found his Jeep in his driveway, a few feet from his trailer home. Then they attached a GPS tracking device to the vehicle's underside.

He was arrested and charged with drug sales. Pineda-Moreno pleaded guilty conditionally to conspiracy to manufacture marijuana and manufacturing marijuana while appealing the denial of his motion to suppress evidence obtained with the help of GPS.

In affirming the denial of the motion to suppress, the judges justified their decision by saying that Pineda-Moreno's driveway was not private. It was open to strangers, they said, such as delivery people and neighborhood children, who could wander across it uninvited.

Chief Judge Alex Kozinski, who dissented from the decision refusing to reconsider the case, pointed out whose homes are not open to strangers: rich people's. The court's ruling, he said, means that people who protect their homes with electric gates, fences and security booths have a large protected zone of privacy around their homes. People who cannot afford such barriers have to put up with the government sneaking around at night.

The government violated Pineda-Moreno's privacy rights in two different ways. For starters, the invasion of his driveway was wrong. The courts have long held that people have a reasonable expectation of privacy in their homes and in the "curtilage," a legal term for the area around the home. The government's intrusion on property just a few feet away from his home was clearly in this zone of privacy.

The court went on to make a second terrible decision about privacy: that once a GPS device has been planted, the government is free to use it to track people without getting a warrant. There is a major battle under way in the federal and state courts over this issue, and the stakes are high. After all, if government agents can track people with secretly planted GPS devices virtually anytime they want, without having to go to a court for a warrant, we are one step closer to a classic police state.

Fortunately, other courts are coming to a different conclusion from the Ninth Circuit's — including the influential U.S. Court of Appeals for the District of Columbia Circuit. That court recently ruled that tracking for an extended period of time with GPS is an invasion of privacy that requires a warrant. The issue is likely to end up in the Supreme Court.

This is a dangerous decision — one that could turn America into the sort of totalitarian state imagined by George Orwell. It is particularly offensive because the judges added insult to injury with some shocking class bias: the little personal privacy that still exists, the court suggested, should belong mainly to the rich.