The Ninth Circuit world is abuzz about the Nnth Circuit’s order denying rehearing en banc of the panel’s decision in U.S. v. Pineda-Moreno that law enforcement’s use of a GPS tracking device is not a “search,” and thus does not implicate the Fourth Amendment’s protections against unreasonable searches and seizures.
The recent contrary decision by the D.C. Circuit in U.S. v. Maynard, (D.C. Cir. Aug. 6, 2010), is a better approach and defense counsel should read and know it thoroughly to make its arguments and to preserve the issue as it will likely be on the Supreme Court docket sometime.
There are valid Fourth Amendment objections to the use of GPS Tracking devises.
The Ninth is almost directly contrary to Judge Ginsburg in the DC Circuit in Maynard, published just a few days earlier. In Maynard, the DC Circuit addressed “head on” whether constant, 24 hour surveillance by GPS for 28 days was a “search” without a warrant and found it was. They did this because the Supreme Court teaches that the standard is not, (as the Ninth wrongly held here), in considering whether something is “exposed” to the public as that term was used in Katz, what another person can physically and may lawfully do but rather what a reasonable person expects another might actually do.
Maynard referred to Bond v. United States, 529 U.S. 334 (2000) where the government argued the bus passenger’s bag, squeezed by a DEA agent during a bus search was “exposed to the public” (just like this GPS argument) so therefore no invasion of a reasonable expectation of privacy. That is not the standard , it was instructed. Rather, “a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent’s physical manipulation of petitioner’s bag violated the Fourth Amendment.” (Italics/bold added for emphasis.)
A passenger could have, but we don’t expect nor want them to, that is what is meant by a “reasonable” expectation of privacy.”
Because of that clear rule, Maynard held that “the whole of a person’s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.”
Thus, the Ninth is not accurately applying Supreme Court instruction.
Counsel should always argue that it is not what we expose to the public, but what we reasonably expect to not be done with what we expose to the public. That is the standard for “reasonableness.”
