CA9: Entering defendant’s driveway at 4 a.m. to install a GPS device on his car violated no REP

Entering defendant’s driveway at 4 a.m. to install a GPS device on his car violated no reasonable expectation of privacy. They entered where anybody approaching the property would or had to. United States v. Pineda-Moreno, 08-30385 (9th Cir. January 11, 2010):

Pineda-Moreno’s case differs from [United States v.] McIver, [186 F.3d 1119 (9th Cir. 1999)] in only one respect. Whereas McIver conceded that his car was not parked within the curtilage of his home when the agents attached the tracking device, id. at 1126, the government here concedes that Pineda-Moreno’s Jeep was parked within the curtilage of his home when the agents attached the tracking device. We need not decide, however, whether Pineda-Moreno’s vehicle was parked within the curtilage of his home. Even assuming it was, it was parked in his driveway, which “is only a semiprivate area.” United States v. Magana, 512 F.2d 1169, 1171 (9th Cir. 1975). “In order to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing the special features of the driveway itself (i.e. enclosures, barriers, lack of visibility from the street) or the nature of activities performed upon it.” Maisano v. Welcher, 940 F.2d 499, 503 (9th Cir. 1991). Pineda-Moreno offers no such evidence. To the contrary, the driveway had no gate, no “No Trespassing” signs, and no features to prevent someone standing in the street from seeing the entire driveway. Additionally, one of the investigating agents testified that “an individual going up to the house to deliver the newspaper or to visit someone would have to go through the driveway to get to the house.” If a neighborhood child had walked up Pineda-Moreno’s driveway and crawled under his Jeep to retrieve a lost ball or runaway cat, Pineda-Moreno would have no grounds to complain. Thus, because Pineda-Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of his home.

Pinedo-Moreno argues that the driveway was nonetheless an area in which he possessed a reasonable expectation of privacy because the agents entered his driveway between 4:00 and 5:00 a.m. But just as the timing of the agents’ actions was immaterial to our analysis in McIver, where we upheld agents’ entry onto a suspect’s driveway at 3:30 a.m. to attach a mobile tracking device to his vehicle, 186 F.3d at 1123, 1126, the time of day is immaterial here.