- 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.

“Do police, without a warrant, without permission, have the right to enter someone’s property in the dead of night to install this kind of device? Do they have the right, again without a warrant, to use such a device to remotely monitor the travel of the vehicle in a very detailed and continuous way?” he asked.

In the past, the Supreme Court has held that police did not need a warrant to employ so-called “beeper” technology, using a small device emitting radio signals that tell police how close they are to a car they are following. Law enforcement advocates argue that a GPS device used to follow a suspect vehicle on a public road is simply a substitute for a surveillance tail, which does not require a warrant.

“If you’re a suspect, you’re going to be tracked,” said Jerry Hunter, founder of U.S. Fleet Tracking Corp., which sells GPS devices to police forces across the country. He said the devices, which are attached to the underside of a vehicle with a small magnet, “just save all those hours and hours where law enforcement are sitting outside [a suspect’s house or other location] eating doughnuts and drinking coffee and waiting for him to move.”

He called the distinction between a satellite-based tracking system and surveillance by human detectives “bureaucratic nonsense.”

But Mr. Latto and others argue that a GPS device, because it allows continuous, remote monitoring and creates a permanent record of the vehicle’s progress, is different from a tail. “At a certain point, a quantitative difference becomes a qualitative one,” Mr. Latto said.

Marc Rotenberg, of the Electronic Privacy Information Center, agreed. The center, a think tank that monitors the constitutional implications of technology, filed a friend-of-the-court brief in a related case before the Massachusetts Supreme Court.

“There are, as a practical matter, resource constraints” on law enforcement agencies, he told The Times.

“Those resource constraints protect us by requiring the police to concentrate investigative activities on the most serious criminal activity. … Because a police officer can follow a single vehicle without a warrant, should it mean that the police can put these trackers on thousands of vehicles and follow them all?”

Another key issue in the case is the status of Pineda-Moreno’s driveway. In several cases, the Supreme Court has drawn what Mr. Rotenberg called “a pretty clear line” that the driveways, garages, front yards and other areas outside the house are “curtilage” - a legal term meaning they are part of a home and entitled to the same privacy protections.

The 9th Circuit held that because the officers did not need to open a gate and there was no “private property” or “no trespassing” sign, they did not need a warrant to enter the driveway and plant the device.

Mr. Rotenberg noted that the Supreme Court typically hears only about one out of 100 appeals it receives. “But there are several factors weighing in favor” of the justices taking the Pineda-Moreno or a similar case, he added. Circuit courts of appeal are divided on the issue, and such confusion in the lower courts typically draws the high court’s attention. In addition, he said, “emerging privacy issues are attracting the interest of the Supreme Court.”

• Shaun Waterman can be reached at 123@example.com.

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