This just in from our correspondent George Orwell:
(CNN) — Law enforcement officers may secretly place a GPS device on a person’s car without seeking a warrant from a judge, according to a recent federal appeals court ruling in California.
Drug Enforcement Administration agents in Oregon in 2007 surreptitiously attached a GPS to the silver Jeep owned by Juan Pineda-Moreno, whom they suspected of growing marijuana, according to court papers.
But he appealed on the grounds that sneaking onto a person’s driveway and secretly tracking their car violates a person’s reasonable expectation of privacy.
“They went onto the property several times in the middle of the night without his knowledge and without his permission,” said his lawyer, Harrison Latto.
The U.S. Ninth Circuit Court of Appeals rejected the appeal twice — in January of this year by a three-judge panel, and then again by the full court earlier this month. The judges who affirmed Pineda-Moreno’s conviction did so without comment.
Latto says the Ninth Circuit decision means law enforcement can place trackers on cars, without seeking a court’s permission, in the nine western states the California-based circuit covers.
This case will surely reach the Supreme Court. A Washington DC appeals court came to a different conclusion, saying that cops need a warrant to place electronic surveillance on your car. A former Justice Department attorney compared it to the “old fashioned surveillance” of having a cop in an unmarked car tailing your every move.
He even went on to say that just because your car is in your driveway, on your private property, you have no reasonable expectation of privacy that prevents then from affixing electronic tracking devices on your car. He says you have to build a fence or put your car in the garage to keep cops from tampering with it and gleaning your every move in public with no court approval or supervision.
When these civil liberties cases come up, I always use what I call the Founding Fathers Time Machine Test. Imagine sitting down with Founding Fathers and explaining this case:
RUSS: OK, gentlemen, enough questions about my time pod. I only have a little time to tell you about something terrible happening two centuries in the future. Something perhaps you can prevent by adding a few words to this “Bill of Rights” you’re working on. See, the court decided that the state has the right to put a GPS on your car…
JEFFERSON: A jeepiess? What is a jeepiess?
MADISON: What is a car?
RUSS: OK, in the future… well… first off, a car is like your horse-drawn carriages, except it needs no horse for propulsion. Almost everyone has one and it is the primary way of moving people and goods from place to place. If our future, you really can’t do business or be employed without one in most places.
JEFFERSON: Remarkable. And the jeepiess?
RUSS: It’s initials – G, P, S. It is a technology we have in the future that allows you to accurately track the location of anything on the planet within a few yards.
WASHINGTON: This is madness. Such a thing isn’t possible.
RUSS: Well, Mr. President, it is. We’ve put men on the moon, harnessed the power of the sun, and can instantly view places all over the globe.
JEFFERSON: So this GPS, what does it do, exactly?
RUSS: It’s hard to explain, but imagine that everywhere you went, there was a government clerk going with you, cataloging every location you visit and every route you took to get there and every time of the day you went. Then imagine the government clerk never sleeps and is invisible and you can’t possibly detect him in any way. And that the government can assign that clerk to you without your knowledge and without a court determining that there’s a reasonable chance you’re breaking the law.
JEFFERSON: My friend Mr. Adams is correct; this is scarcely the philosophy of a free and just society! If this stranger’s prophecy rings true, our noble experiment in liberty is extinguished in a mere two centuries.
WASHINGTON: Surely our descendants must be an educated people. I cannot fathom our great country, founded with the blood of patriots against the tyrant of London, turning to tyrants themselves without compelling reason. For what purpose do the agents of the state seek to violate the sacred privacy of the People?
RUSS: To prevent them from growing hemp.
RUSS: Yes. Some Americans like to smoke the dried flowers of hemp, so our government arrests and imprisons them for cultivating it. We even force workers to surrender cups of their urine for testing to prove they aren’t smoking dried hemp flowers.
JEFFERSON: “Hemp is of first necessity to the wealth & protection of the country!”
RUSS: Some of us are aware of that, too, Mr. President… whoops, I mean, “Mr. Ambassador”… yet 850,000 are arrested over hemp every year…
MADISON: Charlatan! I had set aside my skepticism to hear your tale based on your strange dress and the odd contraption in which you arrived, but to prophecy that America would ever abandon her principles of equality and fairness to seek and punish citizens for growing hemp is an absurdity worthy of Jonathan Swift! Now leave us alone so we can protect the rights of citizens that might actually be proscribed by the state.
WASHINGTON: America punishing hemp farmers… I guess they’d have to punish us, eh, Thomas?
JEFFERSON: What a fantastic tale. Begone, odd visitor.
Your car on private property isn’t private. War is peace. Freedom is slavery. Orwell was right.