TRACKING DEVICE LEADS TO SUPREME COURT

Drug Charges Against Medford Man Hinge on Fourth Amendment
Challenge

A Medford man plans to petition the U.S. Supreme Court to consider
whether his Fourth Amendment rights were violated when police
installed mobile tracking devices on his vehicle prior to arresting
him on drug charges.

Juan Pineda-Moreno's Portland defense attorney, Harrison Latto, said
his client's constitutional rights to privacy and his protections
against unreasonable searches and seizures were violated when U.S.
Drug Enforcement Administration agents attached tracking devices to
his sport utility vehicle while it was parked on his property as part
of a marijuana investigation.

Unfortunately for his client, he said, Oregon courts have so far
concluded that the agents' action were "no more invasive than a child
entering his property to retrieve a stray ball."

But a dissenting opinion filed late last month representing five
justices of the 9th U.S. Circuit Court of Appeals -- including Chief
Justice Alex Kozinsky -- disagreed with the court's majority ruling.

Kozinsky called the facts of the case "disturbingly
simple."

"Police snuck into Pineda-Moreno's property in the dead of night and
attached a GPS tracking device to the underside of his car," Kozinsky
wrote. "There is something creepy and un-American about such
clandestine and underhanded behavior."

The agents installed the tracking devices after learning Pineda-Moreno
and his associates had purchased large amounts of fertilizer,
groceries, irrigation equipment and deer repellent at several stores
in the Medford area in May and June 2007.

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 the car, court records
said.

The appeals court heard arguments in the case on Oct. 5, 2009. Judge
Diarmuid F. O'Scannlain noted in the court's ruling, filed on Jan. 11,
that the agents attached the devices while the vehicle was parked in a
driveway and in public areas, including a street and parking lot.
O'Scannlain upheld federal District Court Judge Owen Panner's original
ruling, stating Pineda-Moreno had no reasonable expectation of privacy
at any of those sites.

"We conclude that the police did not conduct an impermissible search
of Pineda-Moreno's car by monitoring its location with mobile tracking
devices," O'Scannlain wrote.

O'Scannlain's majority opinion has twice erred in "very significant
and dangerous ways," Kozinsky's dissent notes.

Citing the explosion of "big brother" tactics, Kozinsky said the
"needs of law enforcement, to which my colleagues seem inclined to
refuse nothing, are quickly making personal privacy a distant memory."

Judges Stephen Reinhardt, Kim McLane Wardlaw, Richard Paez and Marsha
Berzon concurred with Kozinsky's dissent.

"Today's decision is but one more step down the gloomy path the
current Judiciary has chosen to follow with regard to the liberties
protected by the Fourth Amendment," wrote Reinhardt.

The devices in Pineda-Moreno's SUV were installed on seven different
occasions. On four of the 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. But on two occasions,
Pineda-Moreno's Jeep was parked on his property, in his driveway, a
few feet from the side of his trailer.

"I don'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 devise that will track the vehicle's every move and transmit
that information to total strangers," Kozinsky wrote.

Once in place, the tracking devices recorded and logged the movements
of the vehicle. On Sept. 12, 2007, information from the device alerted
agents that Pineda-Moreno's vehicle was leaving a suspected marijuana
grow site. Agents followed the Jeep, pulled it over, and subsequently
performed a search of both the vehicle and Pineda-Moreno's home with
his consent. In Pineda-Moreno's trailer, agents found two large
garbage bags of marijuana, records show.

On Nov. 2, 2007, a grand jury indicted Pineda-Moreno on one count of
conspiracy to manufacture marijuana. Pineda-Moreno's case was first
heard in Medford's U.S. District Court by Panner, who denied defense
attorney motions to suppress the evidence obtained from the mobile
tracking devices.

Pineda-Moreno entered a conditional guilty plea which carries a prison
sentence of 51 months, and reserved the right to appeal the denial of
his motion to suppress.

Latto said his next move is to petition the U.S. Supreme Court. Latto
will use the Kozinski and Reinhardt's dissenting opinions to help
plead his client's case, he said.