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August 18, 2010

GPS-Disappointing denial of rehearing

Filed under: California Defense Attorney — Tags: , , — fayarfa @ 2:53 am

GPS: Disappointing denial of rehearing en banc (hopefully) sets stage for Supreme Court reversal.

Players: Hard-fought petition for rehearing by Oregon CJA counsel Harrison Latto. Dissent from denial of rehearing en banc by Chief Judge Kozinski, and Judges Reinhardt, Wardlaw, Paez, and Berzon.

Facts: “The facts are disturbingly simple. Police snuck onto Pineda-Moreno’s property in the dead of 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. The [three-judge] panel holds that none of this implicates the Fourth Amendment, even though the government concedes that the car was in the curtilage of Pineda-Moreno’s home at the time the police attached the tracking device.” Id. at * 1 (Kozinski, C.J., dissenting).

Issue(s): Petition for rehearing en banc.

Held: “[T]he matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. The petition for rehearing en banc is DENIED.” Id. at * 1.

Of Note: Chief Judge Kozinski begins his dissent with a bang: “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.” Id. at * 1. As is often the case (particularly of late) the CJ’s dissenting opinion is worth a read – both because he’s right, and also because of his love of expressive language. For example, the panel had upheld the action of the cops, explaining that they did nothing in the private driveway of the defendant’s home that neighborhood kids don’t do. To put it mildly, our Chief was unpersuaded. “[T]here’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. ” Id. at *3 (Kozinski, C.J., dissenting).

How to Use: While the curtilage issue is troubling, it is the GPS holding in Pineda-Moreno that will hopefully wake the Supremes. Chief Judge Kozinski dismisses the panel’s “breezy” opinion and acknowledges the new Circuit split represented by Maynard. Id. at *4; see also id. at *6. As he warns, “In determining whether the tracking devices used in Pineda-Moreno’s case violate the Fourth Amendment’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.” Id. at *5. A good time to repeat some advice from last week’s memo on the great Maynard decision – preserve GPS challenges despite Pineda-Moreno. See (discussing Maynard and Ninth Circuit decisions bearing upon GPS surveillance) Pineda-Moreno deserves Supreme Court review, and the D.C. Circuit’s very recent decision on Maynard makes a much better argument for constitutional limitations on GPS tracking. (A head’s-up to the Stanford and Georgetown Supreme Court clinics, Sidley Austin’s pro bono Supreme Court Program, the Electronic Frontier Foundation, and the ACLU: Pineda-Moreno’s attorney Harrison Latto is in a fighting mood and is hungry for some amicus help).

For Further Reading: Chief Judge Kozinski ends his dissent with a parade of horribles, as he describes the government’s potential warrantless surveillance of citizens: tracking Winston and Julia near a hotel, surveilling Syme near a STD clinic, hunting-down Jones, Aaronson, and Rutherford at a political protest. Id. at *6. He also predicts that, “[s]ome day soon, we may wake up and find we’re living in Oceania.” Id. at *7. Remember those references, from your high school literature class? See . Makes for a nice theme running throughout a powerful and persuasive dissent. Sadly, however, his literate references don’t feel like hyperbole.

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