Word Wars
I've been preparing for my 12th consecutive year teaching moot court class at Hastings. This time, I'm using United States v. Pineda-Moreno. That's the Ninth Circuit case holding that the Fourth Amendment is not violated when police officers sneak on to your driveway in the wee hours of the morning and attach a GPS tracking device to the underside of the car. Have you looked under there lately? Maybe that rattling noise is not just a loose muffler. Anyway, as I've previously noted, some of the most entertaining judicial opinions are dissents. Pineda-Moreno is no exception:
In the controlling opinion, Circuit Judge O'Scannlain writes that given the lack of a fence, gate or other obstruction, "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." (U.S. v. Pineda-Moreno, 593 F.3d 1212, 1215.)
In the subsequent dissent from the denial of the petition for rehearing en banc, Chief Judge Kozinski writes: "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." (U.S. v. Pineda-Moreno, 617 F.3d 1120, 1123.)
Touche!
