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Pot Suspect Claims DEA Car Tracking Device Contra Fourth Amendment

U.S. v. Pineda-Moreno, Case No. 08-30385 (C.A. 9, Jan. 11, 2010)

We must decide whether law enforcement officers violate a suspect’s Fourth Amendment rights when they enter the curtilage of his home and attach a mobile tracking device to the undercarriage of his car.

On May 28, 2007, a Drug Enforcement Administration (“DEA”) special agent noticed a group of men purchasing a large quantity of fertilizer from a Home Depot. Recognizing the fertilizer as a type frequently used to grow marijuana, he followed the men as they left the store and saw them drive away in a silver 1997 Jeep Grand Cherokee. Law enforcement later identified one of the men as Juan Pineda-Moreno, the owner of the Jeep.

In June, DEA agents obtained information that Pineda-Moreno and his associates had purchased large quantities of groceries, irrigation equipment, and deer repellant at several stores. On several of these occasions, the group traveled in Pineda-Moreno’s Jeep. Agents eventually followed these individuals to a trailer home Pineda-Moreno was renting at the time.

After learning where Pineda-Moreno lived, agents escalated their investigation. Over a four-month period, agents repeatedly monitored Pineda-Moreno’s Jeep using various types of mobile tracking devices. Each device was about the size of a bar of soap and had a magnet affixed to its side, allowing it to be attached to the underside of a car.

Agents installed these devices on the underside of Pineda-Moreno’s Jeep on seven different occasions. On four of these occasions, the vehicle was parked on a public street in front of Pineda-Moreno’s home. On one occasion, it was located in a public parking lot. On the other two occasions, the Jeep was parked in Pineda-Moreno’s driveway, a few feet from the side of his trailer. The driveway leading up to the trailer was open; agents did not observe any fence, gate, or “No Trespassing” signs indicating that they were not to enter the property. The agents entered Pineda-Moreno’s driveway between 4:00 and 5:00 a.m and attached the tracking devices to the Jeep. Once in place, the tracking devices recorded and logged the precise movements of the vehicle. Some of these devices permitted agents to access the information remotely, while others required them to remove the device from the vehicle and download the information directly.

On September 12, 2007, information from a mobile tracking device alerted agents that Pineda-Moreno’s vehicle was leaving a suspected marijuana grow site. Agents followed the Jeep, pulled it over, and smelled the odor of marijuana emanating from a passenger in the backseat of the vehicle. The agents contacted immigration authorities, who arrested all three individuals in the vehicle for violations of immigration laws. Pineda-Moreno subsequently consented to a search of his vehicle and home. In Pineda-Moreno’s trailer, agents found two large garbage bags full of marijuana.
 

 

Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Criminal Justice , Property , Transportation
 
Circuit Court Judge(s)
Diarmuid O'Scannlain
Randy Smith

 
Trial Court Judge(s)
Owen Panner
Charles Wolle

 
Appellant Lawyer(s) Appellant Law Firm(s)
Harrison Latto

 
Appellee Lawyer(s) Appellee Law Firm(s)
Judith Harper US Attorney's Office
Amy Potter US Attorney's Office

 

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of his jeep. we rejected a similar argument in united states each of these circumstances separately. duct a "search" cognizable under the fourth amendment by harrison latto, of portland, oregon, argued the cause for the we note that three state supreme courts have concluded that the use of efficiency with unconstitutionality and decline to do so now."2 the fertilizer as a type frequently used to grow marijuana, he u.s.c. 841(a)(1) and (b)(1)(a)(vii). in the district court, testified that "an individual going up to the house to deliver lated their investigation. over a four-month period, agents no constitutional foundation. we have never equated police agents contacted immigration authorities, who arrested all attached the tracking device to his vehicle. because the agents see california v. ciraolo, 476 u.s. 207, 211 (1986). laws. pineda-moreno subsequently consented to a search of car, we do not comment on the district court's conclusion that the agents of privacy because the agents entered his driveway between did not invade such an area, they conducted no search, and 738 united states v. pineda-moreno their investigation, the agents entered mciver's driveway at 5:00 a.m and attached the tracking devices to the jeep. once on a public street, that is unequivocally not a search within the one count of manufacturing marijuana in violation of 21 owner of the jeep. as such, is not afforded a reasonable expectation of privacy." no. 08-30385 (9th cir. 1975). "in order to establish a reasonable expectation for publication jeep to retrieve a lost ball or runaway cat, pineda-moreno dence that later proved critical at mciver's trial for drug signs indicating that they were not to enter the property. the 759 p.2d 1040 (or. 1988) (holding that using a tracking device without a 741united states v. pineda-moreno 1 public street and parking lot--areas where pineda-moreno the parties dispute the standard of review applicable to this claim. the agents to access the information remotely, while others regarding the interior of the home that could not otherwise because the court heavily modified the fourth amendment osburn v. state, 44 p.3d 523 (nev. 2002) (following mciver and holding the driveway to get to the house." if a neighborhood child had part of its exterior, is not entitled to a reasonable expectation finally, pineda-moreno argues that even if the agents' (1978)). we, like the seventh circuit, believe that "[s]hould [the] govern- ("dea") special agent noticed a group of men purchasing a respect. whereas mciver conceded that his car was not parked 1123, 1126, the time of day is immaterial here. of his jeep violated his fourth amendment rights because the entire driveway. additionally, one of the investigating agents defendant-appellant. because we conclude that the agents did not "search" pineda-moreno's was parked within the curtilage of his home. even assuming devices to his jeep while it was parked on a street in front of *the honorable charles r. wolle, senior united states district judge v. mciver, 186 f.3d 1119 (1999). there, agents suspected that 749, 754 (10th cir. 1993)). found two large garbage bags full of marijuana. able expectation of privacy). in weaver, for example, the new york court a tracking device is impermissible under their respective state constitu- groceries, irrigation equipment, and deer repellant at several affirmed. curtilage of mciver's home to attach the tracking device, he amy e. potter, of portland, oregon, assistant united states of privacy in [his] driveway, [pineda-moreno] must support moreno did not take steps to exclude passersby from his of appeals expressed fear that to permit the police to use tracking devices v. 1:07-cr-30036-pa 740 united states v. pineda-moreno conclude that the agents did not violate pineda-moreno's of his trailer. the driveway leading up to the trailer was open; b 733united states v. pineda-moreno vehicle. the district court denied his motion to suppress. occasions, the vehicle was parked on a public street in front pineda-moreno argues that the agents violated his fourth can assert no reasonable expectation of privacy. [4] in sum, pineda-moreno cannot show that the agents invaded an area in which he possessed a reasonable expecta- another." 460 u.s. 276, 281- 82 (1982). pineda-moreno pineda-moreno can assert no fourth amendment violation. mciver was growing marijuana. id. at 1122- 23. as part of id. at 1127 (quoting united states v. rascon-ortiz, 994 f.2d 5:00 a.m. and attaching the tracking devices to the underside iii [6] pineda-moreno's last claim is that the agents' use of side of his vehicle, which was parked in front of his garage parked in his driveway and while it was parked in public a public parking lot. on the other two occasions, the jeep was opinion by judge o'scannlain o'scannlain, circuit judge: 739united states v. pineda-moreno a suspect's fourth amendment rights when they enter the cur- fourth amendment rights by attaching mobile tracking clude that by denying pineda-moreno's motion to suppress, the district outside the curtilage of his home. id. at 1123. by monitoring moreno offers no such evidence. to the contrary, the drive- three individuals in the vehicle for violations of immigration way itself (i.e. enclosures, barriers, lack of visibility from the it was, it was parked in his driveway, which "is only a semi- knotts, 460 u.s. at 284. we conclude that the police did not moreno and his associates had purchased large quantities of allowing it to be attached to the underside of a car. the signal from the tracking device, the agents learned that the "search" whenever they use sense-enhancing technology not son, 76 p.3d 217 (wash. 2003) (holding, under a state constitutional ii "[t]he substitute . . . is for an activity, namely following a car ment someday decide to institute programs of mass surveillance of vehicu- tracking device to a car parked in his driveway but outside the public.1 were on the brief. after the district court's ruling, pineda-moreno entered a con- [3] pinedo-moreno argues that the driveway was nonethe- 3 an area in which he possesses a reasonable expectation of pri- because "[t]he undercarriage is part of the car's exterior, and his home and in a public parking lot. as he admits, this argu- a pineda-moreno moved to suppress the evidence obtained d.c. no. tionally protected area constitutes a search--at least where . . . two cases. in kyllo, thermal-imaging technology provided a 731 had reasonable suspicion that he was engaged in criminal activity. for the district of oregon asserts, however, that knotts should not control his case united states, 533 u.s. 27 (2001). there, the court held that upheld agents' entry onto a suspect's driveway at 3:30 a.m. to agents attached these devices both while his vehicle was the curtilage of his home. the act of placing the tracking devices on the underside of his error. in response, pineda-moreno asserts that language in the govern- meaning of the amendment." united states v. garcia, 474 from the mobile tracking devices, arguing that agents violated substitute for a search unequivocally within the meaning of areas, such as a street and a public parking lot. we consider amendment rights by entering his driveway between 4:00 and we must decide whether law enforcement officers violate police agencies of government upon personal privacy." 909 n.e.2d at plaintiff-appellee, juan pineda-moreno, jeep constituted an unreasonable "search" in violation of his agents obtained from the tracking devices was a log of the pineda-moreno first argues that by attaching mobile track- viduals to a trailer home pineda-moreno was renting at the the fourth amendment, whereas in knotts, as in this case, assistant united states attorney for the district of oregon, constitute a "search" cognizable under the fourth amendment agents installed these devices on the underside of pineda- entific devices such as the [tracking devices] enabled the "would be to countenance an enormous unsupervised intrusion by the followed the men as they left the store and saw them drive movements of the vehicle. some of these devices permitted on september 12, 2007, information from a mobile track- 734 united states v. pineda-moreno [2] pineda-moreno's case differs from mciver in only one mobile tracking devices continuously to monitor the location a attorney for the district of oregon, argued the cause for the actions was immaterial to our analysis in mciver, where we size of a bar of soap and had a magnet affixed to its side, i would have no grounds to complain. thus, because pineda- reasonable expectation of privacy when they attach a mobile that pineda-moreno's jeep was parked within the curtilage of ing device alerted agents that pineda-moreno's vehicle was in an automobile on public thoroughfares has no reasonable because there we held that the undercarriage of a vehicle, as opinion the agents could have obtained by following the car. "insofar [5] pineda-moreno also argues that the agents violated his analysis applicable to such technological devices in kyllo v. of pineda-moreno's home. on one occasion, it was located in his vehicle and home. in pineda-moreno's trailer, agents download the information directly. lar movements, it will be time enough to decide whether the fourth available to the general public to obtain information. locations where pineda-moreno's car traveled, information for the southern district of iowa, sitting by designation. 2 iv driveway, he cannot claim a reasonable expectation of privacy ing devices to the undercarriage of his jeep, agents invaded [1] mciver moved to suppress this evidence, arguing that 3:30 a.m. and attached a mobile tracking device to the under- [7] pineda-moreno misstates the relationship between the that attaching the tracking device to mciver's vehicle did not fourth amendment rights by affixing the mobile tracking u.s. at 284- 85 (quoting zurcher v. stanford daily, 436 u.s. 547, 566 senior district judge. argued and submitted devices attached to his vehicle are not generally used by the in violation of 21 u.s.c. 846(a)(1) and (b)(1)(a)(vii), and agents did not observe any fence, gate, or "no trespassing" the technology in question is not in general public use." id. at provision more protective than the fourth amendment, that police may of review, we would reach the same result. garcia, 474 f.3d at 998. is leaving a suspected marijuana grow site. agents followed the he acknowledges that in united states v. knotts, the monitoring its location with mobile tracking devices.3 filed january 11, 2010 as [pineda-moreno's] complaint appears to be simply that sci- for the foregoing reasons, the judgment of the district court before the district court and accordingly we should review only for plain united states of america, expectation of privacy in his movements from one place to v. welcher, 940 f.2d 499, 503 (9th cir. 1991). pineda- undercarriage of his car. police to be more effective in detecting crime, it simply has ment. first, we held that because the agents did not enter the repeatedly monitored pineda-moreno's jeep using various amendment should be interpreted to treat such surveillance as a search." devices to the underside of his jeep while it was parked on a parked in pineda-moreno's driveway, a few feet from the side in it, regardless of whether a portion of it was located within using a beeper to track a vehicle because "[a] person traveling decision de novo. we need not resolve this dispute, however, as we con- that the police use of a mobile tracking device does not infringe a reason- reasonable expectation of privacy. id. second, we concluded street) or the nature of activities performed upon it." maisano types of mobile tracking devices. each device was about the large quantity of fertilizer from a home depot. recognizing 34 (internal quotation marks and citations omitted). from this required them to remove the device from the vehicle and moreno on one count of conspiracy to manufacture marijuana fourth amendment rights. id. at 1126. we rejected that argu- owen m. panner, district judge, presiding appeal from the united states district court ment's response to his motion was broad enough to bring the argument to his fourth amendment rights by attaching the devices to his in place, the tracking devices recorded and logged the precise walked up pineda-moreno's driveway and crawled under his pineda-moreno's jeep. agents eventually followed these indi- away in a silver 1997 jeep grand cherokee. law enforcement within the curtilage of his home when the agents attached the b tilage of his home and attach a mobile tracking device to the appellee. karin j. immergut, united states attorney for the supreme court held that law enforcement officers do not con- conduct an impermissible search of pineda-moreno's car by way had no gate, no "no trespassing" signs, and no features warrant or obviating exigency violates the state constitution). but see october 5, 2009--portland, oregon not use a mobile tracking device without a warrant); state v. campbell, before: diarmuid f. o'scannlain and n. randy smith, stores. on several of these occasions, the group traveled in united states court of appeals could not claim that they invaded an area in which he had a f.3d 994, 997 (7th cir. 2007). pineda-moreno makes no his motion to suppress. pineda-moreno timely appealed. jeep, pulled it over, and smelled the odor of marijuana ema- court committed no error, plain or otherwise. thus, under either standard ment is foreclosed by our precedent. in mciver, we held that officers do not invade an area in which a suspect possesses a agents entered pineda-moreno's driveway between 4:00 and on november 2, 2007, a grand jury indicted pineda- moreno's jeep on seven different occasions. on four of these the newspaper or to visit someone would have to go through tion of privacy when they walked up his driveway and to prevent someone standing in the street from seeing the in june, dea agents obtained information that pineda- district of oregon, and judith r. harper, of medford, oregon, defendant-appellant and filed the briefs. vacy, thereby violating his fourth amendment rights. the opinion tions. see people v. weaver, 909 n.e.2d 1195 (n.y. 2009); state v. jack- holding, he contends that law enforcement officers conduct a using thermal imaging technology to obtain "any information 736 united states v. pineda-moreno claim that the agents used the tracking devices to intrude into time. nating from a passenger in the backseat of the vehicle. the have been obtained without physical intrusion into a constitu- the court's attention, and we therefore should review the district court's 735united states v. pineda-moreno his home when the agents attached the tracking device. we a constitutionally protected area. the only information the 737united states v. pineda-moreno after learning where pineda-moreno lived, agents esca- ditional guilty plea, reserving the right to appeal the denial of less an area in which he possessed a reasonable expectation private area." united states v. magana, 512 f.2d 1169, 1171 presence in his driveway did not violate the fourth amend- car was in the vicinity of a known marijuana grow site, evi- that expectation by detailing the special features of the drive- of privacy. id. at 1127. attach a mobile tracking device to his vehicle, 186 f.3d at side of his jeep did. mciver forecloses this argument as well charges. id. 4:00 and 5:00 a.m. but just as the timing of the agents' need not decide, however, whether pineda-moreno's vehicle government contends that pineda-moreno failed to raise this argument counsel ment, their decision to attach the tracking device to the under- tracking device, id. at 1126, the government here concedes on may 28, 2007, a drug enforcement administration for the ninth circuit 1202. "but the fact is that the `reality hardly suggests abuse.' " knotts, 460 curtilage of his home. 186 f.3d at 1126. applying mciver, we later identified one of the men as juan pineda-moreno, the circuit judges, and charles r. wolle,*


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