E.D.Cal.: Def failed to even attempt to show REP in driveway as curtilage for pre-Jones GPS installation

GPS trackers were placed on two cars in codefendant’s driveway in 2009 (pre-Jones). The defense doesn’t show enough about the driveway and a reasonable expectation of privacy in it to conclude that there was a violation of curtilage here. United States v. Arceo-Rangel, 2015 U.S. Dist. LEXIS 28630 (E.D.Cal. March 6, 2015):

At the time the GPS trackers in this case were installed in 2009, McIver was the applicable Ninth Circuit precedent, providing that a tracker may be placed on a vehicle without a warrant when the vehicle was parked in a public place. McIver, 186 F.3d at 1127. The defendants’ certainty now that McIver was incorrectly decided does not strip that decision of its then-binding effect. The fact that Agent Burns did not expressly rely on published precedent in attaching the trackers is immaterial because an officers’ reasonable reliance need only be “objective.” Herring v. United States, 555 U.S. 135, 136, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (“The pertinent analysis is objective, not an inquiry into the [] officers’ subjective awareness.”). Another judge of this court has reached the same conclusion, following Jones. In United States v. Martinez, the court considered sua sponte whether Jones applied retroactively to the facts supporting a previously denied motion to suppress information gained from a vehicle tracker; the court found it did not, because, as here, officers acted in reasonable reliance on the then-established precedent of McIver. See 2012 U.S. Dist. LEXIS 55260, 2012 WL 1378491, at *2 (E.D. Cal. Apr. 19, 2012); see also Judkins v. United States, No. 09-CR-20, 2013 U.S. Dist. LEXIS 37028, 2013 WL 1130484, at *4 (E.D. Wis. Mar. 18, 2013) (warrant requirement for GPS trackers does not have retroactive application; collecting cases nationally post-Jones holding the same).

Finally, taking into account the entire record before the court, defendants have not demonstrated that the trackers were placed on the vehicles while Agent Burns was on private property or invading private property. The defense has not detailed features of the driveway at issue here so as to support a reasonable expectation of privacy in that driveway, as required by Ninth Circuit precedent. In the absence of the required meaningful detail, Agent Burns’ consistent and credible testimony that he placed the trackers while standing on public property and that the driveway where the vehicles were parked was fully accessible and visible from the street, resolves this matter in the government’s favor.