Petition for Certiorari Filed in Pineda-Moreno, The Ninth Circuit GPS Case

A petition for certiorari was recently filed asking the Supreme Court to review United States v. Pineda-Moreno, the Ninth Circuit case allowing warrantless GPS surveillance. I have posted a copy of the cert petition here.

There’s been a lot of interest in this case thanks to Judge Kozinski’s over-the-top dissent from denial of rehearing, so I thought I would blog a bit about the cert petition. In my view, the petition should be denied. Here’s why:

(1) I don’t see a genuine split on the GPS question. The Seventh Circuit agrees with the Ninth, and the only serious candidate for a split is the DC Circuit’s Maynard case. But there isn’t a clear split between Maynard and Pineda-Moreno. Maynard says that short-term GPS monitoring is fine, and it’s only long-term monitoring (the exact length unknown) that becomes a search — and even then, it may be that no warrant is required. It’s not clear that applying Maynard‘s approach to the facts of Pineda-Moreno leads to a different result.

More broadly, the real key to Maynard is the novel mosaic theory, which no one discussed in Pineda-Moreno. The two cases are like apples and oranges, at least if you imagine a world where no one has ever seen or heard of an orange. And even if there is a real split, it’s only a split that covers a single city, Washington, DC, with a single U.S. Attorney’s Office. The cert petition tries to make the split seem broader, but I don’t see it: The state cases are cases interpreting the state constitutions, for example, so they can’t be part of any split.

(2) I don’t see a clear split on the curtilage issue, either. The odd part about Pineda-Moreno is that the AUSA in the case conceded that the driveway was part of the curtilage. The curtilage/open-fields distinction is extremely fact-specific, based on a multi-factor test, but that concession was a blunder. Most courts have said that the driveway is not part of the curtilage, allowing the police to go on driveways without a warrant, and that was probably the right outcome here.

The puzzling part about the panel decision in Pineda-Moreno was that it essentially undid the government’s concession: It held that the warrantless search was okay even though the driveway was concededly part of the curtilage. That’s wrong, in my view. The government’s concession should have lost the case for them, and the Ninth Circuit was wrong to bend over backwards to undo the concession. But this strange context means that there isn’t a clear split: The approach of other circuits would be to say that going on to the driveway wasn’t a search because it didn’t cross onto the curtilage, which is the same result as the Ninth Circuit reached. So although the analysis is rather strange, the basic result is the same as other circuits have found with similar facts. (That didn’t stop Kozinski from decrying that the decision represented the end of all driveway privacy, but as Boon replied to Otter, “Forget it, he’s rolling.”)