GPS: Disappointing denial of rehearing en banc (hopefully) sets stage for Supreme Court reversal.
Players: Hard-fought petition for rehearing by Oregon CJA counsel Harrison Latto. Dissent from denial of rehearing en banc by Chief Judge Kozinski, and Judges Reinhardt, Wardlaw, Paez, and Berzon.
Facts: “The facts are disturbingly simple. Police snuck onto Pineda-Moreno’s property in the dead of night and attached a GPS tracking device to the underside of his car. The device continuously recorded the car’s location, allowing police to monitor all of Pineda-Moreno’s movements without the need for visual surveillance. The [three-judge] panel holds that none of this implicates the Fourth Amendment, even though the government concedes that the car was in the curtilage of Pineda-Moreno’s home at the time the police attached the tracking device.” Id. at * 1 (Kozinski, C.J., dissenting).
Issue(s): Petition for rehearing en banc.
Held: “[T]he matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. The petition for rehearing en banc is DENIED.” Id. at * 1.
Of Note: Chief Judge Kozinski begins his dissent with a bang: “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.” Id. at * 1. As is often the case (particularly of late) the CJ’s dissenting opinion is worth a read – both because he’s right, and also because of his love of expressive language. For example, the panel had upheld the action of the cops, explaining that they did nothing in the private driveway of the defendant’s home that neighborhood kids don’t do. To put it mildly, our Chief was unpersuaded. “[T]here’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage. ” Id. at *3 (Kozinski, C.J., dissenting).