- The Washington Times - Wednesday, September 8, 2010

Late-18th-century notions of unreasonable search and seizure are clashing with the capabilities of 21st-century surveillance technology as U.S. courts struggle to define a reasonable expectation of legal privacy in the age of global positioning satellites.

The Constitution’s Fourth Amendment protections are getting a legal workout as defendants challenge law enforcement’s use of high-tech snooping devices - often employed without court warrants - to track their movements and build cases against them.

The attorney for an Oregon man convicted of drug offenses after his car was surreptitiously monitored by federal agents using a GPS tracking device without a warrant said he will take his case all the way to the U.S. Supreme Court. A dissenting judge in that case wrote that the police behavior was “creepy and un-American.”

In a similar case decided this week, the Virginia Court of Appeals ruled that Fairfax County police did not need a warrant to secretly install such a device on the work van of convicted sex offender David L. Foltz Jr.

Court of Appeals Judge Randolph A. Beales wrote that planting the device “conveyed no private information to the police” and “the bumper of a van parked on a public street … does not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance.”

“Because [Foltz] did nothing to prevent the public from observing the bumper, we find he did not exhibit an expectation of privacy in this area of the van,” the judge wrote in his ruling, which said it is essentially no different from a case in which police follow a suspect or a vehicle in a public place.

But the U.S. Court of Appeals for the District of Columbia reached the opposite conclusion in a third case, ruling that police did need a warrant to make use of GPS tracking devices.

Foltz’s attorney did not return a phone call requesting comment but has said his client will appeal.

Because appeals courts across the country have reached conflicting decisions in similar cases, the U.S. Supreme Court is thought more likely to hear such an appeal.

In the Oregon case, agents from the U.S. Drug Enforcement Administration used a series of GPS devices to track a car to remote rural locations where prosecutors said marijuana was being grown. The car’s owner, Juan Pineda-Moreno, was arrested and charged in 2007, in part on the basis of the GPS data.

The agents did not have a court-issued warrant, and Pineda-Moreno’s attorney said they should have obtained one - both to enter his driveway to install the tracking device and to carry out what the defense argued was a “search” by using the device to continuously monitor the location of his car.

Pineda-Moreno lost that argument at his trial and again last month, before the 9th U.S. Circuit Court of Appeals - considered one of the most reliably liberal in the nation. He received a 51-month sentence for manufacturing marijuana.

But in an impassioned dissent, 9th Circuit Chief Judge Alex Kozinski argued that there was “something creepy and un-American about [the] clandestine and underhanded behavior” of the police in the case.

“To those of us who have lived under a totalitarian regime, there is an eerie feeling of deja vu,” wrote the judge, an immigrant from Romania who was appointed by President Reagan. “1984 may have come a bit later than predicted, but it’s here at last.”

Pineda-Moreno’s attorney, Harrison Latto, said in an interview with The Washington Times that the case raised major constitutional questions.

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