FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-30385

Plaintiff-Appellee, D.C. No.

v.  1:07-CR-30036-

PA-1 JUAN PINEDA-MORENO,

Defendant-Appellant. OPINION 

On Remand from the United States Supreme Court

Argued and Submitted

May 31, 2012—Portland, Oregon

Filed August 6, 2012

Before: Diarmuid F. O’Scannlain and N. Randy Smith,

Circuit Judges, and Charles R. Wolle, District Judge.*

Opinion by Judge O’Scannlain

*The Honorable Charles R. Wolle, United States District Judge for the

Southern District of Iowa, sitting by designation. 

8701
COUNSEL

Harrison Latto, Portland, Oregon, argued the cause and filed

the supplemental brief for the defendant-appellant.

Kelly Zusman, Appellate Chief, District of Oregon, Eugene,

Oregon, argued the cause and filed the supplemental brief for

the plaintiff-appellee. With her on the brief were S. Amanda

Marshall, United States Attorney, District of Oregon, Eugene,

Oregon, and Amy E. Potter, Assistant United States Attorney,

Eugene, Oregon. 

OPINION

O’SCANNLAIN, Circuit Judge:

In this matter which arose prior to the Supreme Court’s

decision in United States v. Jones, 132 S. Ct. 945 (2012), we

must decide whether to apply the exclusionary rule where law

enforcement agents attached mobile tracking devices to the

UNITED STATES v. PINEDA-MORENO 8703
underside of a defendant’s car and used those devices to track

the car’s movements.

I

In 2007 the Drug Enforcement Administration (“DEA”)

came to suspect that Juan Pineda-Moreno was growing marijuana in the back country of southern Oregon. That suspicion

arose on May 28, when a DEA agent saw Pineda-Moreno and

some other men pay cash for a large amount of a fertilizer

favored by local marijuana growers. The men loaded the fertilizer into a Jeep Grand Cherokee that belonged to PinedaMoreno.

The DEA began to investigate the men and to monitor the

travels they made in Pineda-Moreno’s Jeep (which had California license plates) and in a second Jeep with Oregon

license plates. The DEA’s surveillance disclosed that the men

bought large quantities of food in the first half of June, that

they bought deer repellent and a portable hand sprayer that

same month, and that they visited an irrigation supply store in

late June. The DEA eventually tailed the men to a single-wide

mobile home in Phoenix, Oregon. The agents observed that

the mobile home did not appear to have a deer problem or an

irrigation system. That information supported the agents’ suspicion that the men were involved in a remote grow operation:

Irrigation equipment would facilitate such an operation, as

would a spray designed to keep deer away from crops. The

large food buys were also consistent with the needs of a

remote operation. The home was, moreover, located in a

mobile home park that, according to the DEA, was known for

drug activity.

Suspicion mounted when the agents tailed the Oregonplated Jeep on June 29. During that trip, the Jeep began traveling “in a very strange manner” as the driver seemed to be

looking around for law enforcement. At one point, a man in

8704 UNITED STATES v. PINEDA-MORENO
the Jeep seemed to write down the license plate numbers of

some of the surveillance vehicles.

Until the end of June, the DEA had tracked the suspects’

movements through visual surveillance and witness reports.

That changed in July. On seven occasions from then until

September, the agents attached mobile tracking devices to the

underside of Pineda-Moreno’s Jeep. On four of those occasions, the Jeep was on the public street in front of PinedaMoreno’s mobile home; once it was in a public parking lot;

and twice it was on Pineda-Moreno’s driveway in front of the

carport. The driveway—which was a few feet from the south

side of Pineda-Moreno’s home—had no fence, gate, or “No

Trespassing” signs on or near it.

Agents used the devices to monitor the movements of

Pineda-Moreno’s Jeep. The devices allowed the agents to pinpoint the Jeep’s location using cellular towers or satellites;

one of the devices also logged data that could later be downloaded to detail where the Jeep had traveled. By monitoring

Pineda-Moreno’s Jeep the agents learned that it traveled to

two suspected marijuana grow sites on July 6, August 14,

August 16, and September 12. The devices used during those

grow-site visits had been attached to the Jeep when it was

either on a public street or in a public parking lot.

Based on the information from the tracking devices and

from their earlier surveillance, the DEA and other law

enforcement agents stopped Pineda-Moreno’s Jeep on September 12. The three men inside were taken into custody for

immigration violations. Pineda-Moreno then consented to a

search of his mobile home. That search uncovered two large

garbage bags that contained marijuana.

II

In November 2007 Pineda-Moreno was indicted in the District of Oregon for conspiring to manufacture marijuana and

UNITED STATES v. PINEDA-MORENO 8705
for manufacturing marijuana in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(vii), and 846. He moved to suppress the evidence derived from using the mobile tracking

devices (which had helped to establish cause for the September 12 stop and led to Pineda-Moreno consenting to a search

of his home). He argued that the agents violated the Fourth

Amendment’s prohibition against “unreasonable searches and

seizures” by attaching the devices to his car and by trespassing on his driveway to do so, all without a warrant. The district court denied the motion.

Pineda-Moreno then pleaded guilty to the conspiracy

charge, but reserved the right to appeal the denial of his

motion to suppress. The district court accepted the plea, dismissed the manufacturing count of the indictment, and sentenced Pineda-Moreno to 51 months’ imprisonment and five

years’ supervised release.

We affirmed the denial of Pineda-Moreno’s motion to suppress, concluding that the installation and use of the tracking

devices was not a Fourth Amendment search. 591 F.3d 1212,

1214-17 (9th Cir. 2010). Pineda-Moreno thereafter filed a

petition for certiorari in the Supreme Court of the United

States. See S. Ct. No. 10-7515.

Subsequent to our decision, the U.S. Supreme Court

decided Davis v. United States, 131 S. Ct. 2419 (2011), and

United States v. Jones, 132 S. Ct. 945 (2012). Davis holds that

“searches conducted in objectively reasonable reliance on

binding appellate precedent are not subject to the exclusionary

rule.” 131 S. Ct. at 2423-24. Jones holds that the government’s installation of a Global Positioning System (GPS)

tracking device on a target’s vehicle, and its use of that device

to monitor the vehicle’s movements, constitutes a “search”

under the Fourth Amendment. 132 S. Ct. at 949.

After issuing the latter decision, the Supreme Court granted

Pineda-Moreno’s certiorari petition, vacated our judgment in

8706 UNITED STATES v. PINEDA-MORENO
the case, and remanded to our court so that we could consider

it further in light of Jones. 132 S. Ct. 1533 (2012).

III

On remand Pineda-Moreno once again asks us to suppress

the evidence derived from the DEA’s mobile tracking

devices. Invoking Davis, the United States contends that even

if its agents’ tracking-device conduct is unconstitutional under

Jones, suppression is unwarranted because the agents acted in

objectively reasonable reliance on binding precedent when

they attached and used the tracking devices.

[1] Jones has made clear that the agents conducted Fourth

Amendment searches when they attached tracking devices to

Pineda-Moreno’s Jeep and used the devices to monitor the

Jeep’s movements. Indeed, for purposes of this remand we

will assume, without deciding, that those warrantless searches

would be “unreasonable” under the Fourth Amendment after

Jones.

But Jones had not been decided when those searches

occurred. And when the agents attached and used the mobile

tracking devices that yielded the critical evidence, they did so

in objectively reasonable reliance on then-binding precedent.

In 2007, circuit precedent held that placing an electronic

tracking device on the undercarriage of a car was neither a

search nor a seizure under the Fourth Amendment. United

States v. McIver, 186 F.3d 1119, 1126-27 (9th Cir. 1999). Circuit law also held that the government does not violate the

Fourth Amendment when it uses an electronic tracking device

to monitor the movements of a car along public roads. United

States v. Hufford, 539 F.2d 32, 34 (9th Cir. 1976); see United

States v. Miroyan, 577 F.2d 489, 492 (9th Cir. 1978) (stating

that “the monitorial use of [an electronic] tracking device cannot constitute a search” under the Fourth Amendment)

(emphasis omitted).

UNITED STATES v. PINEDA-MORENO 8707
Our circuit precedent may also have permitted the agents to

walk onto Pineda-Moreno’s driveway to attach the devices to

his Jeep. As of 2007 we had held that, “to establish a reasonable expectation of privacy in [one’s] driveway”—and thus to

obtain Fourth Amendment protection for it—one “must support that expectation by detailing the special features of the

driveway itself (i.e. enclosures, barriers, lack of visibility

from the street) or the nature of activities performed upon it.”

Maisano v. Welcher, 940 F.2d 499, 503 (9th Cir. 1991); see

also United States v. Magana, 512 F.2d 1169, 1171 (9th Cir.

1975) (“A driveway is only a semiprivate area.”). PinedaMoreno’s driveway was visible from the street, had no fence

or gate, and did not have “No Trespassing” signs on or near

it.

But we need not resolve whether the agents were authorized in 2007 to walk onto Pineda-Moreno’s driveway

because, even without the evidence obtained from the

driveway-attached tracking devices, the government had

amassed enough other evidence, in good faith reliance on

binding precedent, to justify the September 12 stop of PinedaMoreno’s Jeep. The tracking-device attachments made in public areas showed four trips to suspected grow sites. That information supplemented the evidence obtained before the

devices were used: the fertilizer buy, the purchase of deer

spray and a hand sprayer, the visit to the irrigation supply

store, the evasive driving, the large food buys, and the observations that the mobile home had no irrigation system or deer

problems. The driveway attachments did disclose that the

Jeep visited a Wal-Mart and a Home Depot on August 30, but

that information was cumulative of other evidence that had

been obtained in good faith.

[2] In short, the agents’ conduct in attaching the tracking

devices in public areas and monitoring them was authorized

by then-binding circuit precedent. Those attachments yielded

the critical information that justified stopping Pineda-Moreno.

Whatever the effect of Jones, then, the critical evidence here

8708 UNITED STATES v. PINEDA-MORENO
is not subject to the exclusionary rule. See Davis, 131 S. Ct.

at 2423-24.1

IV

[3] We recognize that Jones at least partially overrules

McIver, Hufford, and Miroyan, and may also affect the vitality of Maisano and Magana. We can address the effect of

Jones more fully in future cases. For today, it is enough to

conclude that suppression is not warranted here because the

agents objectively relied on then-existing binding precedent

when they approached Pineda-Moreno’s Jeep in public areas,

attached tracking devices to it, and used those devices to monitor the Jeep’s movements.

AFFIRMED.

1

In light of our conclusion, we deny Pineda-Moreno’s pending Motion

for Leave to Submit Supplemental Briefs. 

UNITED STATES v. PINEDA-MORENO 8709