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Jim Porter: Big Brother is watching

How would you feel if someone planted a GPS device under your car when it was parked in your driveway and afterward tracked your travels? Does it change your answer if the GPS installer is the government? What if the car owner is a suspected marijuana grower?

A drug enforcement agent (DEA) just happened to notice Juan Pineda-Moreno purchase a large quantity of fertilizer from a Home Depot. The agent was hanging in the fertilizer aisle? Per the court, it was the type of fertilizer frequently used to grow marijuana. How do they know that? Is the bag labeled and#8220;Perfect for Marijuana?and#8221;

Afterward, the DEA agents installed a GPS device on the underside of Pineda-Morenoand#8217;s 1997 Jeep Grand Cherokee and#8212; on seven different occasions, sometimes when the vehicle was parked on a public street, but on two occasions when the Jeep was parked in Pineda-Morenoand#8217;s driveway, a few feet from the side of his trailer.



Information from the mobile tracking devices led to Pineda-Morenoand#8217;s arrest and conditional guilty plea, reserving the right to appeal and suppress the evidence obtained by the GPS devices.

The three-judge Ninth Circuit U.S. Court of Appeals upheld the conviction finding that although the Jeep was parked within the and#8220;curtilageand#8221; of his home (the area closely around his home), the driveway was only a semi-private area frequented by newspaper delivery boys (when was the last time you saw one of them?), repairmen and neighborhood kids, so Pineda-Moreno had no reasonable expectation of privacy. Attaching the devices while the Jeep was in the driveway was not a search nor a violation of Fourth Amendment rights.



The full panel of the federal Ninth Circuit denied to re-hear the matter and#8220;en banc.and#8221;

The Ronald Reagan-appointed, conservative Chief Judge of the Ninth Circuit, Alex Kozinski, wrote a blistering dissent and#8212; taking on the government.

Judge Kozinski is brilliant and passionate. If you are a libertarian or concerned about government intrusion in our lives, read his dissent, portions quoted below:

and#8220;Our court now proceeds to dismantle the zone of privacy we enjoy in the homeand#8217;s curtilage and in public. The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory, 1984 may have come a bit later than predicted, but itand#8217;s here at last.

and#8220;The very rich will still be able to protect their privacy with the aid of electric gates, tall fences, security booths, remote cameras, motion sensors, and roving patrols, but the vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the paneland#8217;s ruling.

and#8220;There has been much talk about diversity on the bench, but there is one kind of diversity that doesnand#8217;t exist: No truly poor people are appointed as federal judges, or state judges for that matter.

and#8220;By holding that this kind of surveillance doesnand#8217;t impair an individualand#8217;s reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives.

and#8220;In determining whether the tracking devices used in Pineda-Morenoand#8217;s case violate the Fourth Amendmentand#8217;s guarantee of personal privacy, we may not shut our eyes to the fact that they are just advance ripples to a tidal wave of technological assaults on our privacy.

and#8220;Companies are amassing huge, ready-made databases of where weand#8217;ve all been. If, as the panel holds, we have no privacy interest in where we go, then the government can mine these databases without warrant, indeed without suspicion whatsoever.

and#8220;I donand#8217;t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicleand#8217;s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of dejà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find weand#8217;re living in Oceania.and#8221;

This case most assuredly is heading to the U.S. Supreme Court. I will go out on a limb and predict the conservative U.S. Supreme Court will uphold the DEA.

Todayand#8217;s column is dedicated to the loving memory of Austin Roberts, a fine young man who will be missed. Please consider a donation to Young Life Youth Group Truckee, P.O. Box 103 Truckee, CA, 96160.

and#8212; Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe, Incline Village and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com or at the firmand#8217;s website http://www.portersimon.com.


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