U.S.A v. Pineda-moreno

• Decision Date: 12 August 2010
• Docket Number: No. 08-30385.,08-30385.
• Citation: 617 F.3d 1120
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Juan PINEDA-MORENO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

617 F.3d 1120

UNITED STATES of America, Plaintiff-Appellee,

v.Juan PINEDA-MORENO, Defendant-Appellant.

No. 08-30385.

United States Court of Appeals, Ninth Circuit.

Aug. 12, 2010.

Judith Harper, Assistant U.S. Attorney, USME-Office of the U.S. Attorney, Medford, OR, Amy Potter, Assistant U.S. Attorney, Office of the U.S. Attorney, Portland, OR, for Plaintiff-Appellee.

Harrison Latto, Portland, OR, for Defendant-Appellant.

D.C. No. 1:07-CR-30036-PA, District of Oregon, Medford.

Before: DIARMUID F. O'SCANNLAIN and N. RANDY SMITH, Circuit Judges, and CHARLES R. WOLLE, Senior District Judge.^*

Order; Dissent by Chief Judge Kozinski; Dissent by Judge Reinhardt.

ORDER

Judges O'Scannlain and N.R. Smith have voted to deny the petition for rehearing en banc, and Judge Wolle has so recommended.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing en banc is DENIED.

Chief Judge KOZINSKI, with whom Judges REINHARDT, WARDLAW, PAEZ and BERZON join, dissenting from the denial of rehearing en banc:

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.

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 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. The panel twice errs in very significant and dangerous ways.

1. The opinion assumes that Pineda-Moreno's driveway was part of his home's curtilage, yet concludes that Pineda-Moreno had no reasonable expectation of privacy there. Curtilage is a quaint word most people are not familiar with; even among judges and lawyers, the word is seldom well understood. Yet, it stands for a very important concept because it rounds out the constitutional protections accorded an individual when he is at home.

Curtilage comes to us by way of Middle English and traces its roots to the Old French courtillage, roughly meaning court or little yard. In modern times it has come to mean those portions of a homeowner's property so closely associated with the home as to be considered part of it. The walkway leading from the street to the house is probably part of the curtilage, and the stairs from the walkway to the porch almost certainly are, as is the porch where grandma sits and rocks most afternoons and watches strangers pass by. The attached garage on the side of the house is part of the curtilage, and so is the detached shed where dad keeps his shop equipment and mom her gardening tools-so long as it's not too far from the house itself. The front lawn is part of the curtilage, and the driveway and the backyard-if it's not too big, and is properly separated from the open fields beyond the house.

Whether some portion of property-the porch, the stairs, the shed, the yard, the chicken coop-is part of the curtilage is sometimes a disputed question. But once it is determined that something is part of the curtilage, it's entitled to precisely the same Fourth Amendment protections as the home itself. How do we know? Because the Supreme Court has said so repeatedly.

In Oliver v. United States, the Court said as follows:

[O]nly the curtilage ... warrants the Fourth Amendment protections that attach to the home. At common law the curtilage is the area to which extends the intimate activity associated with the “sanctity of a man's home and the privacies of life,” and therefore has been considered part of home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage.

466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886)) (emphasis added). Three years later, the Court reiterated the same view in United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987):

[In Oliver ] we recognized that the Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.

(Emphasis added). See also

Dow Chemical Co. v. United States, 476 U.S. 227, 231, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986) (citing Oliver, 466 U.S. at 170, 104 S.Ct. 1735). There's no disputing that the Court considers the curtilage to stand on the same footing as the home itself for purposes of the Fourth Amendment.

While it can be unclear whether a particular portion of the homeowner's property is part of the curtilage, there's no doubt here because the government concedes that Pineda-Moreno's driveway is a part of his curtilage, and the panel expressly assumes that it is. United States v. Pineda-Moreno, 591 F.3d 1212, 1214-15 (9th Cir.2010). Having made that assumption Oliver and Dunn require the panel to “treat[ ] [it] as the home itself.” Dunn, 480 U.S. at 300, 107 S.Ct. 1134. Instead, the panel holds that Pineda-Moreno was required to separately establish a reasonable expectation of privacy in the curtilage. That-according to Oliver and Dunn-is like requiring the homeowner to establish a reasonable expectation of privacy in his bedroom. We are often reminded that we must follow Supreme Court precedent see, e.g., Winn v. Ariz. Christian Sch. Tuition Org., 586 F.3d 649, 658-59 (9th Cir.2009) (O'Scannlain, J., dissenting from denial of rehearing en banc), but the panel here forgets this advice.

The panel does cite California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), but that case undermines its position. Ciraolo held that a homeowner has no reasonable expectation of visual privacy in his property as to activities that might be seen from a low-flying airplane. The activity there in question-cultivation of marijuana-took place in the homeowner's yard, so the Court could have limited its discussion to the curtilage. Instead, Ciraolo quoted a passage from Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), to the effect that “a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited.” Ciraolo, 476 U.S. at 215, 106 S.Ct. 1809 (quoting Katz, 389 U.S. at 361, 88 S.Ct. 507). This passage applies equally to a person's yard as his porch and his bedroom window: If what you do in your home is visible to the public, you have no reasonable expectation that it will remain private. Ciraolo cites Oliver and follows its analysis by treating the curtilage and the home as exactly the same for Fourth Amendment purposes.

The panel's rationale for concluding that Pineda-Moreno had no reasonable expectation of privacy is even more worrisome than its disregard of Supreme Court precedent: According to the panel, Pineda-Moreno's driveway was open to the public in that strangers wishing to reach the door of his trailer “to deliver the newspaper or to visit someone would have to go through the driveway to get to the house.” Pineda-Moreno, 591 F.3d at 1215. But there are many parts of a person's property that are accessible to strangers for limited purposes: the mailman is entitled to open the gate and deposit mail in the front door slot; the gas man may come into the yard, go into the basement or look under the house to read the meter; the gardener goes all over the property, climbs trees, opens sheds, turns on the sprinkler and taps into the electrical outlets; the pool man, the cable guy, the telephone repair man, the garbage collector, the newspaper delivery boy (we should be so lucky) come onto the property to deliver their wares, perform maintenance or make repairs. This doesn't mean that we invite neighbors to use the pool, strangers to camp out on the lawn or police to snoop in the garage. See United States v. Hedrick, 922 F.2d 396, 400, 402 (7th Cir.1991) (Cudahy, J., dissenting).

The panel authorizes police to do not only what invited strangers could, but also uninvited children-in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there'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.

The very rich will still be able to protect their privacy with the aid of electric gates, tall fences, security booths, remote cameras, motion sensors and roving patrols, but the vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel's ruling. Open driveways, unenclosed porches, basement doors left unlocked, back doors...