USA V. JUAN PINEDA-MORENO

[kandrathe]

What if the courts no longer acted to protect the rights of citizens? We all assume that the courts defend us from over zealous actions of the State, but here in the US, we are loosing our impartial judiciary. In some cases the States are trying to defend or establish rights for their citizens, only to be usurped by the Federal government.

Exhibit A. The recent ruling on USA V. JUAN PINEDA-MORENO, by the 9th Circuit Court of Appeals.

Juan Pineda-Moreno was suspected of growing Marijuana by the DEA based on certain products he bought at a store. In the middle of the night, they surreptitiously went onto his private property and installed a GPS tracking device onto his vehicle. Then, they used tracking satellites to watch where he went to discover his Marijuana crop. He admitted to growing the Marijuana, but challenged the governments violation of his 4th Amendment right to privacy and unreasonable search.

Consider what happens if the government is allowed to tag us (or hide devices on or in our property) at will whenever they like to monitor our movements. Doesn't this sound like some futuristic sci-fi movie where the people live in a totalitarian police state?

Plenty of liberals have objected to this kind of spying, but it is the conservative Chief Judge Kozinski who has done so most passionately. "1984 may have come a bit later than predicted, but it's here at last," he lamented in his dissent. And invoking Orwell's totalitarian dystopia where privacy is essentially nonexistent, he warned: "Some day, soon, we may wake up and find we're living in Oceania." -- Time "The Government Can Use GPS to Track Your Moves", Aug. 25, 2010

[Jester]

But... but... drugs are bad, right?

I'm not sure this is a problem with the Judiciary. (Edit: Actually, I'm sure it's not a problem with the judiciary.) The war on drugs, and the associated spying, is a problem of the executive branch for going to far, and the legislative for letting them. The judges can only read whether or not it is lawful. And there is a very strong conservative ideology in parts of the judiciary that does not believe there is any constitutional right to privacy whatsoever.

All the judge had to do was rule as to whether his 4th amendment rights had been violated.

-Jester

[kandrathe]

But... but... drugs are bad, right?

It's this overreaching crap like this that makes me want to go out and buy 1000's of grow lights, 100's of gallons of deer repellent, and miles of easy to set up irrigation systems. Then, just resell it anonymously through the internet for a small profit. There is established case law establishing that the government has no right to trespass on private property (posted or not) to engage in domestic spying (I remember the Watergate days...).

But... Most of the bonehead SCOTUS cases in our country come from west coast lunatics and up through the United States Court of Appeals for the Ninth Circuit

[Jester]

But... but... drugs are bad, right?

It's this overreaching crap like this that makes me want to go out and buy 1000's of grow lights, 100's of gallons of deer repellent, and miles of easy to set up irrigation systems. Then, just resell it anonymously through the internet for a small profit.

Hey, right there with ya. Civil disobedience against drug fascism*? I'm on board.

-Jester

*and yes, I do mean that. Millions jailed, massive paramilitary enforcement, fear and paranoia, black-and-white morality... scary stuff.

[--Pete]

Hi,

It's this overreaching crap like this that makes me want to go out and buy 1000's of grow lights, 100's of gallons of deer repellent, and miles of easy to set up irrigation systems. Then, just resell it anonymously through the internet for a small profit.

Why sell it? Grow hot house vegetables -- even better if you do it hydroponically. Think of what freshly grown, organic tomatoes would fetch in your neck of the woods (or mine, for that matter) in January. When all the stores have is miniature undrilled red bowling balls.

Heck, you might even make enough to hire a lawyer for the harassment case you'll bring against the DEA.

--Pete

[Jester]

But... Most of the bonehead SCOTUS cases in our country come from west coast lunatics and up through the United States Court of Appeals for the Ninth Circuit

Because it's those crazy West Coast Hippies who are pushing the drug war?

-Jester

[Sir_Die_alot]

by the 9th Circuit Court of Appeals.

The judges can only read whether or not it is lawful. And there is a very strong conservative ideology in parts of the judiciary that does not believe there is any constitutional right to privacy whatsoever.

*snort*giggle*

[Jester]

*snort*giggle*

I'm not quite following...

-Jester

[Lissa]

*snort*giggle*

I'm not quite following...

-Jester

The 9th Circuit is known for being very liberal. That's where the joke comes in.

As to the main body of this, there is a clause for reasonable suspision. They saw him buying items that made them think he was violating the law. This is very much allowed (and done for decades). Really, Juan doesn't have a leg to stand on.

[Rhydderch Hael]

The argument presented by law enforcement is that the GPS tracker is no different than a stakeout: cops in an unmarked car stationed in visual proximity of the vehicle, then tailling it wherever it went.

The stakeout and tail is an accepted method of investigation that has been around for decades, all without a judge's warrant.

Of course, I'd appreciate having the human aspect of the stakeout and tail rather than having some computer record of a machine's report delivered as evidence. Finding oneself subject to perjury laws is an incentive to tell the truth.

Machines can insulate a potential perjurer from liability. Hard(er) to prosecute a perjurer (aligned with the LEO) who fudged the data if it's hard(er) to prove that he fudged with the machine in the first place, can you?

Imagine a case where the police place a tracker on the car of an accomplice to the accused, rather than the accused's. Or, what if your roommate was in the business and borrowed your car from time to time? GPS satellites can't tell who's driving the car. A cop, sworn under oath before taking the stand, can attest to the identity of the driver.

[--Pete]

Hi,

The argument presented by law enforcement is that the GPS tracker is no different than a stakeout: cops in an unmarked car stationed in visual proximity of the vehicle, then tailling it wherever it went.

The stakeout and tail is an accepted method of investigation that has been around for decades, all without a judge's warrant.

The two cases would be similar if the cops were in your back seat, otherwise, no. They have put a device on or in your property without your authorization and without getting a warrant. If the poor almost extinct bill of rights means anything anymore, that is illegal.

--Pete

[Jester]

The 9th Circuit is known for being very liberal. That's where the joke comes in.

Well, yes. It's the court of the most liberal region. But I didn't say the 9th circuit was conservative. I said there is a wing of the judiciary in general that is, and doesn't believe in the right to privacy. That's true all the way up to the supreme court, and no doubt true of some judges even in the 9th.

-Jester

[kandrathe]

As to the main body of this, there is a clause for reasonable suspision. They saw him buying items that made them think he was violating the law. This is very much allowed (and done for decades). Really, Juan doesn't have a leg to stand on.

I agree, they had probable cause. Here is where they should have gotten a warrant from a judge.

[Lissa]

As to the main body of this, there is a clause for reasonable suspision. They saw him buying items that made them think he was violating the law. This is very much allowed (and done for decades). Really, Juan doesn't have a leg to stand on.

I agree, they had probable cause. Here is where they should have gotten a warrant from a judge.

Probably cause is about not needing a warrant. The point of probable cause is that the law enforcement agency thinks that they will be unable to get the proof they need if they take the time to get the warrant. It's about acting on a reasonable suspision before the perpatrator has a chance to dispose of the evidence that proves their guilt. What the DEA agents did was act as quickly as they could because they thought that Juan Pineda would get rid of the evidence before they could get the warrant. Given what I saw fifteen years ago while serving on a Federal Grand Jury while in Arizona, major cases took months to build their case and some of the warrants required to move forward took a month at times to have a judge hear the warrant. While Pineda can argue all he wants that he was the subject to unreasonable search, he really wasn't, he gave DEA agents probable cause to pursue him due to what he purchased at stores. And really, Juan had to be running a fairly large growth setup as DEA agents aren't going to go to these lengths when someone is growing a plant for their personal use.

[kandrathe]

Probably cause is about not needing a warrant. The point of probable cause is that the law enforcement agency thinks that they will be unable to get the proof they need if they take the time to get the warrant. It's about acting on a reasonable suspision before the perpatrator has a chance to dispose of the evidence that proves their guilt. What the DEA agents did was act as quickly as they could because they thought that Juan Pineda would get rid of the evidence before they could get the warrant.

Wait. How do you figure that? They put the device on his jeep at least 4 times. Once, when parked at a lot, twice when it was parked on the curb outside his home, and once while it was on his property outside his garage at 4am. They had to have been tracking him over a period of weeks, not hours.

"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." —Katz v. United States, 389 U.S. 347, 351 (1967)

While Pineda can argue all he wants that he was the subject to unreasonable search, he really wasn't, he gave DEA agents probable cause to pursue him due to what he purchased at stores. And really, Juan had to be running a fairly large growth setup as DEA agents aren't going to go to these lengths when someone is growing a plant for their personal use.

He pled guilty, but because of the evidence and how it was obtained he felt his 4th amendment rights were violated. But, not unreasonable search. What this case is about is the reasonable expectation of privacy, and in many other cases in the US, the courts have ruled that the area around the outside of your house is private. This is why the government can't set up camera's outside your house, or laser microphones to your windows without a warrant, requiring the agents to justify it with probable cause. This is why we call it private property. The defense of lacking a "No Trespassing" sign, or that delivery drivers could walk up to his door, or that neighborhood children might wander over are canards. The 4th amendment protects us from the excess of government. Not delivery drivers, or wayward children. This is another time when we expect the judiciary, or the legislatures to revise our protections due to improvements in technology.

Let's suppose this is legal. How would you feel if government agents were able to attach devices to all vehicles when they were in public spaces, and then monitor all the vehicles in an area for "crime"? For example, if there was a rash of burglaries, or rapes, or murders in the area, to protect the public good they could match records of GPS locations to places where crimes occurred. It would be effective, yes?

How about if they secretly put these devices in the shoes of alleged criminals while they had them under custody at a police station? Is it reasonable to expect that at any time, without a court reviewing this power for excess that police should be able to track the exact whereabouts of suspects on the basis that they felt they had probable cause? Is there any limit on the governments ability to track the locations of all its citizens, all the time? If so, what?

Here is a quote by Louis Brandeis, in his dissent in Olmstead vs US (the first ever wiretapping case), where Chief Justice Taft in writing for the majority read the Constitution to strictly mean physical searches and seizures; "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. " The Supreme Court eventually overturned this purely physical view of search and seizure. Not to mention other privacy protections, such as offered by the guarantee of liberty, which has been protected in precedence by the 9th amendment.

[--Pete]

Hi,

Probably cause is about not needing a warrant.

No. Exigent circumstances is about not needing a warrant. It is very limited, usually requiring the perceived threat of injury or death of a third party. Probable cause is the justification for a police action, be it pulling over a car for irregular driving, stopping a person for unusual behavior, or getting a warrant. Notice that neither the car pulled over, nor the person stopped can be searched without either a warrant or some further probable cause. And even then, any evidence found can be dismissed. Except for exigent circumstances, a person or his property may not be searched without a warrant.

The point of probable cause is that the law enforcement agency thinks that they will be unable to get the proof they need if they take the time to get the warrant. It's about acting on a reasonable suspision before the perpatrator has a chance to dispose of the evidence that proves their guilt.

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. Now, on a TV show, they always come up with some sly trick to get around the law. But in reality, a first year public defender would get evidence obtained in that way excluded. And probably get the cops reprimanded.

What the DEA agents did was act as quickly as they could because they thought that Juan Pineda would get rid of the evidence before they could get the warrant.

What the DEA agents did is to forget, just as they inevitably do, that this isn't a banana republic (where they would be much more at home) and that we have a constitution, laws, and all that embarrassing and hindering paraphernalia interfering with their administration of semi-legal vigilantism.

Given what I saw fifteen years ago while serving on a Federal Grand Jury while in Arizona, major cases took months to build their case and some of the warrants required to move forward took a month at times to have a judge hear the warrant.

Irrelevant, immaterial, and wrong. While warrants can take a while to get for non time critical issues, warrants can and typically are issued rapidly in the cases where time is critical. Warrants for the search of a residence where a suspect is believed to be (with probable cause), can and are produced in minutes. And once issued, the warrant can be acted on even if it has not physically arrived at the scene (I don't know if that's state or federal, so it might not apply everywhere).

While Pineda can argue all he wants that he was the subject to unreasonable search, he really wasn't, he gave DEA agents probable cause to pursue him due to what he purchased at stores.

No. At most he gave them probable cause to ask for a warrant. Even if those purchases were probable cause, that's all the DEA had a right to do. Whether or not that was probable cause is a topic we cannot really discuss in an intelligent manner without a lot more information.

And really, Juan had to be running a fairly large growth setup as DEA agents aren't going to go to these lengths when someone is growing a plant for their personal use.

Really? Have you looked at the statistics of the people in American prisons at all levels? The bulk of the inmates are there because of drug charges, and the bulk of them because of minor quantities.

Plus, your statement is nonsense. The implication is that if the cops take an interest in you, you must be guilty. And if they take a big interest in you, you must be very very guilty and you lose all your constitutional rights.

--Pete

[Lissa]

Hi,

Probably cause is about not needing a warrant.

No. Exigent circumstances is about not needing a warrant. It is very limited, usually requiring the perceived threat of injury or death of a third party. Probable cause is the justification for a police action, be it pulling over a car for irregular driving, stopping a person for unusual behavior, or getting a warrant. Notice that neither the car pulled over, nor the person stopped can be searched without either a warrant or some further probable cause. And even then, any evidence found can be dismissed. Except for exigent circumstances, a person or his property may not be searched without a warrant.

The point of probable cause is that the law enforcement agency thinks that they will be unable to get the proof they need if they take the time to get the warrant. It's about acting on a reasonable suspision before the perpatrator has a chance to dispose of the evidence that proves their guilt.

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. Now, on a TV show, they always come up with some sly trick to get around the law. But in reality, a first year public defender would get evidence obtained in that way excluded. And probably get the cops reprimanded.

What the DEA agents did was act as quickly as they could because they thought that Juan Pineda would get rid of the evidence before they could get the warrant.

What the DEA agents did is to forget, just as they inevitably do, that this isn't a banana republic (where they would be much more at home) and that we have a constitution, laws, and all that embarrassing and hindering paraphernalia interfering with their administration of semi-legal vigilantism.

Given what I saw fifteen years ago while serving on a Federal Grand Jury while in Arizona, major cases took months to build their case and some of the warrants required to move forward took a month at times to have a judge hear the warrant.

Irrelevant, immaterial, and wrong. While warrants can take a while to get for non time critical issues, warrants can and typically are issued rapidly in the cases where time is critical. Warrants for the search of a residence where a suspect is believed to be (with probable cause), can and are produced in minutes. And once issued, the warrant can be acted on even if it has not physically arrived at the scene (I don't know if that's state or federal, so it might not apply everywhere).

While Pineda can argue all he wants that he was the subject to unreasonable search, he really wasn't, he gave DEA agents probable cause to pursue him due to what he purchased at stores.

No. At most he gave them probable cause to ask for a warrant. Even if those purchases were probable cause, that's all the DEA had a right to do. Whether or not that was probable cause is a topic we cannot really discuss in an intelligent manner without a lot more information.

And really, Juan had to be running a fairly large growth setup as DEA agents aren't going to go to these lengths when someone is growing a plant for their personal use.

Really? Have you looked at the statistics of the people in American prisons at all levels? The bulk of the inmates are there because of drug charges, and the bulk of them because of minor quantities.

Plus, your statement is nonsense. The implication is that if the cops take an interest in you, you must be guilty. And if they take a big interest in you, you must be very very guilty and you lose all your constitutional rights.

--Pete

I'm not going to go point by point here, but what I learned while serving on Federal Grand Jury is quite the opposite of what you are saying here Pete. What you think is the proper way probable cause works is not how it works. If law enforcement has probable cause, they can search, if they are going onto your property, they have to ask you first if it's ok for them to search, if you respond in the affirmative, they can use anything they find in court and there isn't damn thing you can do about saying that it's inaddmissable, if you say no, they'll have to go get a warrant for the search, but they'll come back.

Likewise, DEA does not get involved in petty drug issues, DEA is interested in much larger cases. If DEA was involved with Pineda, it's cause he had a large growing operation. For relatively small amounts of drugs (personal use or a dealer), drug cases are left to local authorities or other agencies (like INS, Customs, Border Patrol, etc). DEA does not involve itself if smaller drug quantities.

[kandrathe]

Likewise, DEA does not get involved in petty drug issues, DEA is interested in much larger cases. If DEA was involved with Pineda, it's cause he had a large growing operation. For relatively small amounts of drugs (personal use or a dealer), drug cases are left to local authorities or other agencies (like INS, Customs, Border Patrol, etc). DEA does not involve itself if smaller drug quantities.

I know it is inconvenient that the government needs to follow rules, and these rules restrict their abilities. The alternative is the frequent violation of peoples rights.

I found another bit about the case; "On September 12, 2007, DEA agents pulled Pineda-Moreno's vehicle over after received information from one of the devices indicating he was leaving a suspected grow show. Agents said they smelled marijuana, though none was found in the vehicle or on Pineda-Moreno or his three passengers. After contacting immigration authorities, who arrested the three other men, DEA agents searched Pineda-Moreno's home and found two garbage bags full of pot."

Two garbage bags seems like a sizable quantity, and it may be more than what one can use for personal use, but it doesn't seem massive to me. Another thought; This actually was a 4 month investigation with probable cause. How hard would it have been to take the evidence they had to a judge to obtain a warrant for GPS surveillance on his vehicle?

[--Pete]

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

[Jester]

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