In United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), a panel of the Ninth Circuit concluded that no Fourth Amendment issues were implicated when police snuck onto Pineda-Moreno’s property at night and attached a GPS tracking device to the underside of his car. The device continuously recorded the car’s location, allowing police to monitor all of Pineda-Moreno’s movements without the need for visual surveillance and without a warrant. The panel held that none of that implicated the Fourth Amendment, even though the government conceded that the car was in the curtilage of Pineda-Moreno’s home at the time the police attached the tracking device.
A petition for rehearing en banc was filed. The petition did not receive the majority vote necessary for rehearing and was denied. Chief Judge Kozinski had some choice words for the Court:
Having previously decimated the protections the Fourth Amendment accords to the home itself, United States v. Lemus, 596 F.3d 512 (9th Cir. 2010) (Kozinski, C.J., dissenting from the denial of rehearing en banc); United States v. Black, 482 F.3d 1044 (9th Cir. 2007) (Kozinski, J., dissenting from the denial of rehearing en banc), our court now proceeds to dismantle the zone of privacy we enjoy in the home’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 it’s here at last.
Slip op., at 11504. On fire, the Chief Judge continued:
The panel authorizes police to do not only what invited strangers could, but also uninvited children—in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage.
Slip op., at 11508. In a particularly introspective moment, the Chief Judge argues that the bench is lacking in persons familiar with the life experiences of the poor:
There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect—and certainly did not consent—to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.
Slip op., at 11508-9. Ouch.
Speaking of ways to protect your privacy from a government run amok, Gizmodo points out that certain cheap (but illegal) GPS jammers are available in an article prompted by this decision. Please don't engage in any unlawful conduct to protect your constitutional rights. That would be wrong.