USA V. JUAN PINEDA-MORENO

[Lissa]

Hi,

. . . but what I learned while serving on Federal Grand Jury is quite the opposite of what you are saying here Pete.

Then what you've learned is wrong. Perhaps you misunderstood, perhaps that jurisdiction's application of the law is unconstitutional.

When a person I respect tells me I'm wrong, I'll at least do a quick google or wiki search to try to determine the truth. I appreciate an equivalent amount of respect given to me.

In less than five minutes, with two quick searches, I came up with these two items. Each was the top item in its list.

Exigent Circumstances
Probable Cause

Now, if you still think your experience on a federal grand jury trump the definitions given on that site, then I suggest you find a forum or contact point there and argue it with them. My knowledge on the matter is exhausted. As am I.

Have a great day, Lissa. You're usually right. But not always.

--Pete

Pete, as Jester noted above, where do these two definitions show that I'm wrong? The definitions you just linked dovetail with exactly what I've learned and what I am saying. If an officer has probably cause and knows that evidence could be destroyed, they can react without a warrant to pursue the perpatrator of a crime. Sorry, but as you links just showed, Juan Pineda has no way to state that his 4th amendment rights were infringed. He was perpatrating a crime, the DEA knew he was growing a significant amount of marijuana for sales and distribution, and they acted so that evidence was not destroyed.

And the last time I checked Kandrathe, 50+ pounds of marijuana was a significant amount (given it's not tons like what has been seized in some places), but considering a personal amount is usually a few ounces (2 to 3), that's pretty significant and something DEA would definitely be interested in.

[--Pete]

Hi,

Pete, the definition of Exigent Circumstances given in the link above appears to contradict what you said earlier about destroying evidence not qualifying.

You wrote:

Nope. That isn't even covered by exigent circumstances. Cops can sit outside of an office, looking in through a window and see the suspect shoving paper through a shredder, and they just have to sit there until a warrant is issued.

Your link says:

Exigent circumstances are said to exist when
(1) a person's life or safety is threatened
(2) a suspect's escape is imminent, or
(3) evidence is about to be removed or destroyed.

Does that not apply here? It would seem to be the obvious route to argue, anyway.

-Jester

In the example I gave, any competent attorney would argue:
Since the cops were waiting for a warrant, they had not searched the premises.
Since the cops had not searched the premises, they did not have probable cause that evidence was being destroyed. The papers being shredded could as easily have been old receipts or proprietary notes.
The cops cannot use evidence gathered after an action to justify that action.

And in the case that started this thread, you are ignoring the earlier part of the definition: "Exigent Circumstances refer to situations that demands unusual or immediate action and this allows people to circumvent usual procedures. In other words emergency conditions. The circumstances are such that it would cause a reasonable person to believe that prompt action is necessary to prevent physical harm to the officers". {Emphasis mine}. I'd hardly consider the repeated tagging of his car over a relatively long period of time an emergency condition. If they had reason to think that he was about to try to escape by driving off into the great California (or whatever) wilderness, they might have had some small sliver of justification.

--Pete

[Jester]

In the example I gave, any competent attorney would argue:
Since the cops were waiting for a warrant, they had not searched the premises.
Since the cops had not searched the premises, they did not have probable cause that evidence was being destroyed. The papers being shredded could as easily have been old receipts or proprietary notes.
The cops cannot use evidence gathered after an action to justify that action.

But that's a closed circle. If there is an exception to needing a warrant for potential destruction of evidence that cannot be invoked until you've conducted a search with a warrant, then you have a useless exception.

The police require probable cause to conduct searches, they can't just do it randomly. It is that threshold that must be passed, and it appears obvious it was. Now, the question then is whether they require a warrant or not. The strongest arguments for seem to be: that they went onto his property to plant the tracker, and possibly violated his privacy in doing so; and that the investigation was over a long enough period that it would have been easy to obtain a warrant in any case. (I believe the second argument at least would have convinced me, but then, I'm not a judge.)

The strongest argument against appears to be that obtaining a warrant would potentially take months, and that the operation (and the evidence) would have been destroyed or disappeared by then. This strikes me as excessive, but it's not obviously incorrect.

And in the case that started this thread, you are ignoring the earlier part of the definition: "Exigent Circumstances refer to situations that demands unusual or immediate action and this allows people to circumvent usual procedures. In other words emergency conditions. The circumstances are such that it would cause a reasonable person to believe that prompt action is necessary to prevent physical harm to the officers". {Emphasis mine}.

Was evidence about to be destroyed? I don't know. But if it was, then it fits the definition: you can't use one half of the definition to invalidate a clearly-stated exception from the other half, unless your argument is that the definition itself is meaningless or contradictory. Destruction of evidence is almost never going to endanger the life of an officer, but yet is listed separately. So long as probable cause exists, and there is a demonstrable danger of evidence being destroyed in the time it would take to get a warrant, then there is at least a plausible argument that exigent circumstances apply.

I'd hardly consider the repeated tagging of his car over a relatively long period of time an emergency condition. If they had reason to think that he was about to try to escape by driving off into the great California (or whatever) wilderness, they might have had some small sliver of justification.

The question of plausibility relies on the relative timelines of obtaining a warrant, vs. the time required to destroy the relevant evidence, combined with the chance of discovery. I think this is a circumstance where a warrant probably should have been required, but again, this is not my call to make. There is ample legal precedent here, cited in the original decision, and now upheld. We can disagree, but we can't overcome stare decisis with sheer force of will.

-Jester

[Lissa]

Here's another aspect that no one has considered. Does Juan Pinero have a prior felony conviction before this marijuana case? If so, he has no rights until he petitions their return and they are granted. If Juan Pinero is a convicted felon prior to this, and has not gotten his rights back (usually doesn't happen for atleast 10 years after time is served, usually 20), then he has no constitutional rights and the government can effectively do whatever they want.

[--Pete]

Hi,

But that's a closed circle. If there is an exception to needing a warrant for potential destruction of evidence that cannot be invoked until you've conducted a search with a warrant, then you have a useless exception.

Not quite. Shredding papers or driving a car are not inherently suspicious actions. Burning clothes or attempting to flush them down a toilet are.

The police require probable cause to conduct searches, they can't just do it randomly. It is that threshold that must be passed, and it appears obvious it was. Now, the question then is whether they require a warrant or not.

No question about it. Yes, they had probable cause. Probable cause is necessary but not sufficient to conduct a search. In addition, either a warrant or exigent circumstances is required. Clearly a warrant was not obtained. So, the question is, were the circumstances truly exigent. Well, the definition of exigent that applies in this case is "requiring immediate aid or action." Since, apparently, the behavior was repeated over a period of time, either each occurrence was exigent, or 'immediate' covers a longer span than I'd previously thought.

Perhaps the first incident was exigent. Rapid action taken while waiting for a warrant. I can't see that as a justification for repeating that. It would be like saying, "No, we never did get a warrant for that wire tap. They could have said something any time. Indeed, after listening for just four months, we finally heard them incriminate themselves."

The strongest arguments for seem to be: that they went onto his property to plant the tracker, and possibly violated his privacy in doing so; and that the investigation was over a long enough period that it would have been easy to obtain a warrant in any case. (I believe the second argument at least would have convinced me, but then, I'm not a judge.)

Yes.

The strongest argument against appears to be that obtaining a warrant would potentially take months, and that the operation (and the evidence) would have been destroyed or disappeared by then. This strikes me as excessive, but it's not obviously incorrect.

Yes, but that is a terrible argument. Consider its implication. Any cop, at any time, can break into any house, or arrest any citizen, with just the flimsiest of excuses and claim exigent circumstances because a warrant would take too long. The constitutional procedure is from probable cause to convincing a judge to getting a warrant to action. To short circuit that does and must require exceptional circumstances or the protection under law becomes meaningless. The excuse "it takes too long to get a warrant" is insufficient and, most probably, false.

Was evidence about to be destroyed? I don't know. But if it was, then it fits the definition: you can't use one half of the definition to invalidate a clearly-stated exception from the other half, unless your argument is that the definition itself is meaningless or contradictory. Destruction of evidence is almost never going to endanger the life of an officer, but yet is listed separately. So long as probable cause exists, and there is a demonstrable danger of evidence being destroyed in the time it would take to get a warrant, then there is at least a plausible argument that exigent circumstances apply.

You are ignoring the meaning of 'exigent'. Is the defendant's car, parked on his property and not in use at that time an imminent threat to the evidence? Does imminent mean "tomorrow, probably, or maybe the next day -- well, at least sometime in the next week -- the defendant might go to his farm and burn his plants, maybe, I think."

The question of plausibility relies on the relative timelines of obtaining a warrant, vs. the time required to destroy the relevant evidence,

So, the inefficiency of the judicial system is sufficient justification for the executive system to ignore the law in its actions? So, if all the judges go on a ten year vacation, the cops will eliminate all crime. Of course, the stench of corpses hanging from the light poles might offend some people. But that's OK, they're just bleeding heart liberals.

--Pete

[Jester]

No question about it. Yes, they had probable cause. Probable cause is necessary but not sufficient to conduct a search. In addition, either a warrant or exigent circumstances is required.

I think I agree with you about whether this should be considered exigent circumstances or not. But, rereading the opinion, it seems the judge sidestepped that issue entirely. The police did not conduct a "search", in the constitutional meaning of the term, because they did not enter into an area in which the defendant had a reasonable expectation of privacy. His driveway was open to view to the public, and lacking any clear attempt to render it private. Tracking his car with a device, or even entering his property (but not his house) to plant one was not legally different for the police than simply staking the place out and following him - no warrant required. Had he made attempts to keep his Jeep private, that would (apparently) be a different matter, but it appears he did not.

Whether doing this was good policy, for the police or for the public, is another question, and one where I strongly disagree with the police. But it does not appear his constitutional rights have been violated, at least, under the current interpretations of what "privacy" and "search" mean.

-Jester

[--Pete]

Hi,

I think I agree with you about whether this should be considered exigent circumstances or not. But, rereading the opinion, it seems the judge sidestepped that issue entirely. The police did not conduct a "search", in the constitutional meaning of the term, because they did not enter into an area in which the defendant had a reasonable expectation of privacy.

In today's Supreme Court, I don't know which way it would go. But if the case is indeed as reported (big 'if') then I think he has grounds for appeal.

Side note: telephone landlines in suburban areas usually come to a junction box mounted outside the house. That box is only kept closed by a simple latch. Thus, since the cops can come onto your property and open this box without entering a space where you would have an expectation of privacy, would a warrant less wiretap be OK? If you paint "Do not open by order of homeowner" on that junction box, does that make a difference? How about if you leave your windows open? Can they throw Velcro covered bugs at your draperies?

--Pete

[Jester]

Side note: telephone landlines in suburban areas usually come to a junction box mounted outside the house. That box is only kept closed by a simple latch. Thus, since the cops can come onto your property and open this box without entering a space where you would have an expectation of privacy, would a warrant less wiretap be OK?

Presumably not - it would surprise me greatly if your private calls are not covered by a reasonable expectation of privacy, and it is that which is at issue in a wiretap, not the trivial physical contents of your junction box. What prevents police from wiretapping you without a warrant is not the physical difficulty of installing the wiretap, but the protected nature of your phone calls. Unlike tailing your movements, the police do not ordinarily have the ability to listen in on your calls without infringing on your rights.

-Jester

[kandrathe]

But, rereading the opinion, it seems the judge sidestepped that issue entirely. The police did not conduct a "search", in the constitutional meaning of the term, because they did not enter into an area in which the defendant had a reasonable expectation of privacy. His driveway was open to view to the public, and lacking any clear attempt to render it private. Tracking his car with a device, or even entering his property (but not his house) to plant one was not legally different for the police than simply staking the place out and following him - no warrant required. Had he made attempts to keep his Jeep private, that would (apparently) be a different matter, but it appears he did not.

What if he had left his car in the garage, but the garage door was open? How about if it were just unlocked? This misses the point anyway. The place isn't afforded constitutional protection, a person is afforded protection. When we leave our mail in the mailbox, we expect that government agents will not secretly open it and read it. If we were to carelessly leave a file folder on the front steps, we would still expect a certain amount of privacy protection from unwarranted search.

Repeating the finding from Katz v. US;

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

I'd say that when I leave my car parked in my driveway, that I have the reasonable expectation that my private property is not tampered with or altered. In fact, we sort of assume that when our vehicles are parked in public places as well, but maybe that is naive on our parts. I feel the focus on vehicle is just a red herring anyway. It doesn't matter if it is a car, shoes, or a ballpoint pen. Does the government have the right to plant a tracking device on people without a warrant?

Whether doing this was good policy, for the police or for the public, is another question, and one where I strongly disagree with the police. But it does not appear his constitutional rights have been violated, at least, under the current interpretations of what "privacy" and "search" mean.

If what you say is true, then nothing protects us from being watched by the government or each other. Anyone could just as well go to Radio Shack and buy the tracking device and keep track of our every movement. Nothing would protect us from some person incessantly monitoring our position. Useful if you are a stalker, or a paparazzi. The bottom line is that "privacy" is not spelled out clearly in the Constitution, but we expect that our privacy is a fundamental principle of liberty.

Consider this case; Lawrence Maynard v. US where the Washington DC circuit court has ruled opposite of the 9th Circuit, and 7th Circuit courts. The important stuff starts about page 20. They even cite how the 7th, 8th, and 9th circuits misinterpreted Knotts v. US. In that case, the government planted a tracking device within a container to aid them in following a suspect from one location to another. The Supreme Court ruled that the device aided the government agents in following the suspect over what would already be public roads. These cases use GPS to track all movements of the suspect over many days to many months to compile evidence of all their movements. "First, unlike one‘s movements during a single journey, the whole of one‘s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one‘s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more — sometimes a great deal more — than does the sum of its parts." -- pp.22

"Applying the foregoing analysis to the present facts, we hold the whole of a person‘s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine." -- pp.26

[--Pete]

Hi,

Anyone could just as well go to Radio Shack and buy the tracking device and keep track of our every movement. Nothing would protect us from some person incessantly monitoring our position.

Nothing does. A private citizen can do things prohibited to law enforcement. It then becomes the burden on the tracked to take measures, such as restraining orders.

--Pete

[Jester]

As with almost everything in the law, there are complex questions about where the line is to be drawn. Different courts and different justices will draw it in different places, with different tests. The Supremes could no doubt clear it up with a direct ruling to set precedent, and the Congress could go further by making the right to privacy explicit in the Constitution. But, until that day, there is a blurry zone where one might be able to expect privacy, and where not, based on the "common sense" of whatever justice presides.

As noted in Maynard v. US, the issue is not just constitutional - many states have passed laws against electronically tracking. There may not be a right not to be followed, but there is no right to follow someone, either. Both are susceptible to legislation.

Interestingly, in this case, it is the 9th that is arguing for the traditionally 'conservative' reading of the constitution, with a sharply restricted right to privacy and ample powers for law enforcement, and the DC circuit arguing for the 'liberal' position of restraint in surveillance and respect for privacy. Since neither court has any authority above the other, we can only wait for the Supremes to have their say. I would rather see much less discretion in the hands of law enforcement for surveillance - but whether that follows from the constitution is an entirely different matter.

Last, a court only rules on what is argued. If the defence in Pineda-Morano only made the argument that he had an expectation of privacy because of the location of his car, and not because of the extended nature of the surveillance, then that is the issue the judge will rule on. It is the role of the attorney, and not the judge, to find solid defences for the accused.

-Jester

[kandrathe]

Nothing does. A private citizen can do things prohibited to law enforcement. It then becomes the burden on the tracked to take measures, such as restraining orders.

I guess we have a State law in Minnesota, 626A.37 - which proscribes wire taps and surveillance with tracking devices except when issued by warrant, and then there are conditions and limitations on how that warrant can be executed. It was mentioned in the list of States with statutes on page 33 of Lawrence Maynard v. US.

But, yes. People can break the law.