Privacy Ends at Your Bumper

You thought you had the right of privacy on your own property? You might want to reconsider your thinking:

Law enforcement officers may secretly place a GPS device on a person’s car without seeking a warrant from a judge, according to a recent federal appeals court ruling in California.

Drug Enforcement Administration agents in Oregon in 2007 surreptitiously attached a GPS to the silver Jeep owned by Juan Pineda-Moreno, whom they suspected of growing marijuana, according to court papers.

When Pineda-Moreno was arrested and charged, one piece of evidence was the GPS data, including the longitude and latitude of where the Jeep was driven, and how long it stayed. Prosecutors asserted the Jeep had been driven several times to remote rural locations where agents discovered marijuana being grown, court documents show.

Here’s the key bit of background:

But [Pineda-Moreno] appealed on the grounds that sneaking onto a person’s driveway and secretly tracking their car violates a person’s reasonable expectation of privacy.

Before we get to my thoughts, let’s get something else out of the way. Does it seem, on the surface, that the individual was doing some bad (illegal) stuff and should pay for it? Absolutely. Is his appeal an attempt to find anything which will free him, and thereby entirely self-serving? Undoubtedly.

All of that aside, the point would seem to be a  valid one. If you cannot have a reasonable expectation of privacy on your own property, then where could you? It does seem very likely that this appeal will be making its way to the Supreme Court. When it does, one would hope that the justices would understand that one of the reasons we have a rule of law (rather than the rule of rulers) is that the rulers–including law enforcement–are restrained from doing anything they wish without regard to the life, liberty and property of the citizens.

Not only do we still at least provide lip service to the legal foundation of “innocent until proven guilty” but we have traditionally (and I believe, correctly) erred on the side of the accused. That is why juries must find things “beyond a reasonable doubt.”

That is why, until recently, you and I understood that no one would be putting a policeman by proxy on the bumper of a vehicle (private property) that was parked on our own driveway (private property) without benefit of a duly sworn and delivered warrant. (update: figured that such a warrant, unlike an arrest warrant, would not be delivered).

In closing, here are a few words from Kozinski:

One of the dissenting judges in Pineda-Moreno’s case, Chief Judge Alex Kozinski, said the defendant’s driveway was private and that the decision would allow police to use tactics he called “creepy” and “underhanded.”

“The vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel’s ruling,” Kozinksi wrote in his dissent.

2 thoughts on “Privacy Ends at Your Bumper

  1. Nicely written article. It nicely captures the difference between the issue (the GPS monitoring) and what the person was doing to interest the DEA.

    It is troubling that this decision appears to authorize unconstrained use of GPS recorders without the need to account for the operations to the courts. Additionally, since there is no accountability, there are no limits on the use or retention of the data accumulated.

    The issues are longer than is appropriate in a comment, but I discussed this as more at length in “GPS Recorders and Law Enforcement Accountability” at http://www.rlgsc.com/blog/ruminations/gps-and-law-enforcement-accountability.html

    1. Bob,

      Thanks for dropping by and sharing your thoughts.

      Accountability is indeed part of the issue here. We all understand there are times to invade privacy (such as stopping a crime in progress) but this decision errs too far on the side of the watchers.

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