Monday, January 11, 2010

U.S. v. Pineda-Moreno (9th Cir. - Jan. 11, 2010)

The Ninth Circuit holds today that it's okay for the DEA, and presumably any other law enforcement official, to come into your driveway, without probable cause, climb under your vehicle, and place a tracking device thereupon.

The theory is that you've got no "reasonable expectation of privacy" in: (1) your driveway, since a neighbor could go there on the way to your house, (2) the undercarriage of your car, since a child might potentially look for a lost ball there, or (3) where you come and go in your vehicle, since another driver could follow you.

It's hard to violently argue with any of these three predicates, though reasonable minds might well disagree either with some of them or with the impact of combining all three.

I'll just leave you with the following question. Presumably what's good for the United States is good for everyone else too. If you've got no "reasonable expectation of privacy" in all of these areas, then a private person should be totally able to do the same thing, right?

How would you feel if someone -- maybe your spouse, maybe your snoopy neighbor -- did precisely that? Would you feel like your "privacy" was invaded? Or would you simply be "unreasonable" in that "expectation"?

I particularly wonder if the members of the panel would feel the same way if someone did that to their cars. Admittedly, with federal judges, there are legitimate security concerns. But even if I was positive that the guy who was tracking me was totally nonviolent, and simply obsessed with knowing everything about me, I would still not be at all psyched. Sufficiently unpsyched that the words "legitimate expectation of privacy" might well come to my mind notwithstanding the fact that each of the three underlying predicates might be invaded by a neighbor, child, and driver, respectively.