Elizabeth Banicki reports:
In one of two sharp dissents from the 9th Circuit’s decision not to rehear the case of a man tracked by police with GPS, Chief Judge Alex Kozinski cautioned that if courts refuse to protect the right to privacy, “Some day, soon, we may wake up and find we’re living in Oceania.”
Police who were suspicious of Juan Pineda-Moreno snuck into his driveway in the middle of the night and attached a GPS tracking system to the bottom of his car. They were able to track all of his travels without having to physically observe him.
A 9th Circuit panel ruled that Pineda’s Fourth Amendment right to privacy had not been violated by the technology, even though it acknowledged that the driveway was part of his home.
Read more on Courthouse News. The court’s decision can be found here. The dissent by Chief Judge Kozinski begins:
Having previously decimated the protections the Fourth Amendment accords to the home itself, United States v. Lemus, 596 F.3d 512 (9th Cir. 2010) (Kozinski, C.J., dissenting from the denial of rehearing en banc); United States v. Black, 482 F.3d 1044 (9th Cir. 2007) (Kozinski, J., dissenting from the denial of rehearing en banc), our court now proceeds to dismantle the zone of privacy we enjoy in the home’s curtilage and in public. The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.
Judge Reinhard also dissented, saying, in part:
Today’s decision is but one more step down the gloomy path the current Judiciary has chosen to follow with regard to the liberties protected by the Fourth Amendment. Sadly, I predict that there will be many more such decisions to come.
In a related article, Charles Savage of the New York Times discusses this case as well as the recent ruling in United States v. Maynard in an article, “Judges Divided Over Rising GPS Surveillance.”