BIG BROTHER IS WATCHING

How would you feel if someone planted a GPS device under your car
when it was parked in your driveway and afterward tracked your
travels? Does it change your answer if the GPS installer is the
government? What if the car owner is a suspected marijuana grower?

GPS Planted

A drug enforcement agent (DEA) just happened to notice Juan
Pineda-Moreno purchase a large quantity of fertilizer from a Home
Depot. The agent was hanging in the fertilizer aisle? Per the court,
it was the type of fertilizer frequently used to grow marijuana. How
do they know that? Is the bag labeled "Perfect for Marijuana?"

Afterward, the DEA agents installed a GPS device on the underside of
Pineda-Moreno's 1997 Jeep Grand Cherokee -- on seven different
occasions, sometimes when the vehicle was parked on a public street,
but on two occasions when the Jeep was parked in Pineda-Moreno's
driveway, a few feet from the side of his trailer.

Arrest and Conviction

Information from the mobile tracking devices led to Pineda-Moreno's
arrest and conditional guilty plea, reserving the right to appeal and
suppress the evidence obtained by the GPS devices.

The three-judge Ninth Circuit U.S. Court of Appeals upheld the
conviction finding that although the Jeep was parked within the
"curtilage" of his home (the area closely around his home), the
driveway was only a semi-private area frequented by newspaper
delivery boys (when was the last time you saw one of them?),
repairmen and neighborhood kids, so Pineda-Moreno had no reasonable
expectation of privacy. Attaching the devices while the Jeep was in
the driveway was not a search nor a violation of Fourth Amendment rights.

Passionate Dissent

The full panel of the federal Ninth Circuit denied to re-hear the
matter "en banc."

The Ronald Reagan-appointed, conservative Chief Judge of the Ninth
Circuit, Alex Kozinski, wrote a blistering dissent -- taking on the government.

Judge Kozinski is brilliant and passionate. If you are a libertarian
or concerned about government intrusion in our lives, read his
dissent, portions quoted below:

"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.

"The very rich will still be able to protect their privacy with the
aid of electric gates, tall fences, security booths, remote cameras,
motion sensors, and roving patrols, but the vast majority of the 60
million people living in the Ninth Circuit will see their privacy
materially diminished by the panel's ruling.

"There has been much talk about diversity on the bench, but there is
one kind of diversity that doesn't exist: No truly poor people are
appointed as federal judges, or state judges for that matter.

"By holding that this kind of surveillance doesn't impair an
individual's reasonable expectation of privacy, the panel hands the
government the power to track the movements of every one of us, every
day of our lives.

"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.

"Companies are amassing huge, ready-made databases of where we've all
been. If, as the panel holds, we have no privacy interest in where we
go, then the government can mine these databases without warrant,
indeed without suspicion whatsoever.

"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 device that will track the vehicle's every movement and
transmit that information to total strangers. There is something
creepy and un-American about such clandestine and underhanded
behavior. To those of us who have lived under a totalitarian regime,
there is an eerie feeling of deja vu. This case, if any, deserves the
comprehensive, mature and diverse consideration that an en banc panel
can provide. We are taking a giant leap into the unknown, and the
consequences for ourselves and our children may be dire and
irreversible. Some day, soon, we may wake up and find we're living in Oceania."

This case most assuredly is heading to the U.S. Supreme Court. I will
go out on a limb and predict the conservative U.S. Supreme Court will
uphold the DEA.

Dedication to Austin

Today's column is dedicated to the loving memory of Austin Roberts, a
fine young man who will be missed. Please consider a donation to
Young Life Youth Group Truckee, P.O. Box 103 Truckee, CA, 96160.