Is Big Brother Watching You? United States v. Pineda-Moreno and the Ninth Circuit’s Dismantling of the Fourth Amendment’s Protections

I. INTRODUCTION In United States v. Pineda-Moreno1 the Ninth Circuit was presented with the question of whether federal agents, without a warrant, were authorized to "enter the curtilage of [a suspect's] home and attach a mobile tracking device to the undercarriage" of the suspect's vehicle.2 The court held that, notwithstanding the lack of a warrant, the agents did not conduct an illegal "search" because they did not encroach on an area in which the suspect "possessed a reasonable expectation of privacy."3 The court arrived at this conclusion despite the fact that the agents walked up the suspect's driveway, stood "a few feet" from his home, and attached a surveillance device to the underside of his vehicle.4 Over the last thirty years, the Nindi Circuit has effectively "decimated" the "zone of privacy" that traditionally included the home, "the home's curtilage," and "public" places.5 Consequentiy, the Fourth Amendment's protection "against unreasonable searches and seizures"6 in the zone of privacy without a warrant is rapidly crumbling away in the Ninth Circuit.7 In Pineda-Moreno I, the Ninth Circuit wrongly balanced the competing interests of law enforcement against Fourth Amendment rights. Rather than expanding the scope of warranriess searches, the court should have ecognized diat by ruling in favor of the interests of law enforcement, it was not only dismantling die Fourth Amendment, but it was also enabling die creation of a modern-day Oceania8 in the United States.9 This Note proceeds as follows. Part II describes the facts and procedural history of Pineda-Moreno I. Next, Part III of this Note outlines the legal background of die case. Following die legal background, Part IV sets out die court's ruling in Pineda-Moreno I. The ruling is analyzed in Part V, concluding diat the Ninth Circuit made tiiree notable errors in its decision. This Note is then briefly summarized in Part VI. II. FACTS AND PROCEDURAL HISTORY In May 2007, a Drug Enforcement Administration ("DEA") agent noticed a group of men, including Pineda- Moreno, shopping in Home Depot's home and garden section.10 The men were seen purchasing "large amounts of Vigoro 21-0-0 fertilizer," which the agent recognized as a type often used to grow marijuana.11 A mondi later, representatives from several stores reported to die DEA that the men, using cash,12 were purchasing "large quantities of groceries, irrigation equipment, and deer repellant."13 After observing that the men frequendy used what turned out to be Pineda-Moreno's Jeep to go to and from die stores, die DEA agents tracked die Jeep to a trailer that Pineda-Moreno was renting.14 Once die DEA located Pineda-Moreno's residence, it quickly ramped up its investigation of him, and, "over a four-month period," agents "monitored [his] Jeep using various types of [discrete GPS] mobile tracking devices."15 The agents attached the tracking units to the "underside of PinedaMoreno's vehicle on seven different occasions."16 In four instances, agents installed the devices while the Jeep "was parked on a public street in front of Pineda-Moreno's home"; on another occasion, the Jeep was parked in a "public parking lot"; and, in the remaining two instances, the vehicle was not only parked in Pineda-Moreno's driveway, but it was parked only "a few feet from the side of his [home]."17 On each occasion, the DEA agents attached the GPS tracking devices to the Jeep in the early hours of the morning, between 4:00 and 5:00 a.m.18 Once installed, the tracking units "recorded and logged die precise movements of the vehicle" and permitted the information to be accessed remotely, or, in other instances, downloaded once the device had been removed from the vehicle.19 In September 2007, after compiling the tracking information for four months, die agents noticed the Jeep "leaving a suspected marijuana grow site."20 The agents followed the Jeep for some time, and eventually pulled it over. …