United States v. Juan Pineda-Moreno , 688 F.3d 1087 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30385
Plaintiff-Appellee, D.C. No.
v.  1:07-CR-30036-
JUAN PINEDA-MORENO, PA-1
Defendant-Appellant.
 OPINION
On Remand from the United States Supreme Court
Argued and Submitted
May 31, 2012—Portland, Oregon
Filed August 6, 2012
Before: Diarmuid F. O’Scannlain and N. Randy Smith,
Circuit Judges, and Charles R. Wolle, District Judge.*
Opinion by Judge O’Scannlain
*The Honorable Charles R. Wolle, United States District Judge for the
Southern District of Iowa, sitting by designation.
8701
UNITED STATES v. PINEDA-MORENO 8703
COUNSEL
Harrison Latto, Portland, Oregon, argued the cause and filed
the supplemental brief for the defendant-appellant.
Kelly Zusman, Appellate Chief, District of Oregon, Eugene,
Oregon, argued the cause and filed the supplemental brief for
the plaintiff-appellee. With her on the brief were S. Amanda
Marshall, United States Attorney, District of Oregon, Eugene,
Oregon, and Amy E. Potter, Assistant United States Attorney,
Eugene, Oregon.
OPINION
O’SCANNLAIN, Circuit Judge:
In this matter which arose prior to the Supreme Court’s
decision in United States v. Jones, 132 S. Ct. 945 (2012), we
must decide whether to apply the exclusionary rule where law
enforcement agents attached mobile tracking devices to the
8704 UNITED STATES v. PINEDA-MORENO
underside of a defendant’s car and used those devices to track
the car’s movements.
I
In 2007 the Drug Enforcement Administration (“DEA”)
came to suspect that Juan Pineda-Moreno was growing mari-
juana in the back country of southern Oregon. That suspicion
arose on May 28, when a DEA agent saw Pineda-Moreno and
some other men pay cash for a large amount of a fertilizer
favored by local marijuana growers. The men loaded the fer-
tilizer into a Jeep Grand Cherokee that belonged to Pineda-
Moreno.
The DEA began to investigate the men and to monitor the
travels they made in Pineda-Moreno’s Jeep (which had Cali-
fornia license plates) and in a second Jeep with Oregon
license plates. The DEA’s surveillance disclosed that the men
bought large quantities of food in the first half of June, that
they bought deer repellent and a portable hand sprayer that
same month, and that they visited an irrigation supply store in
late June. The DEA eventually tailed the men to a single-wide
mobile home in Phoenix, Oregon. The agents observed that
the mobile home did not appear to have a deer problem or an
irrigation system. That information supported the agents’ sus-
picion that the men were involved in a remote grow operation:
Irrigation equipment would facilitate such an operation, as
would a spray designed to keep deer away from crops. The
large food buys were also consistent with the needs of a
remote operation. The home was, moreover, located in a
mobile home park that, according to the DEA, was known for
drug activity.
Suspicion mounted when the agents tailed the Oregon-
plated Jeep on June 29. During that trip, the Jeep began trav-
eling “in a very strange manner” as the driver seemed to be
looking around for law enforcement. At one point, a man in
UNITED STATES v. PINEDA-MORENO 8705
the Jeep seemed to write down the license plate numbers of
some of the surveillance vehicles.
Until the end of June, the DEA had tracked the suspects’
movements through visual surveillance and witness reports.
That changed in July. On seven occasions from then until
September, the agents attached mobile tracking devices to the
underside of Pineda-Moreno’s Jeep. On four of those occa-
sions, the Jeep was on the public street in front of Pineda-
Moreno’s mobile home; once it was in a public parking lot;
and twice it was on Pineda-Moreno’s driveway in front of the
carport. The driveway—which was a few feet from the south
side of Pineda-Moreno’s home—had no fence, gate, or “No
Trespassing” signs on or near it.
Agents used the devices to monitor the movements of
Pineda-Moreno’s Jeep. The devices allowed the agents to pin-
point the Jeep’s location using cellular towers or satellites;
one of the devices also logged data that could later be down-
loaded to detail where the Jeep had traveled. By monitoring
Pineda-Moreno’s Jeep the agents learned that it traveled to
two suspected marijuana grow sites on July 6, August 14,
August 16, and September 12. The devices used during those
grow-site visits had been attached to the Jeep when it was
either on a public street or in a public parking lot.
Based on the information from the tracking devices and
from their earlier surveillance, the DEA and other law
enforcement agents stopped Pineda-Moreno’s Jeep on Sep-
tember 12. The three men inside were taken into custody for
immigration violations. Pineda-Moreno then consented to a
search of his mobile home. That search uncovered two large
garbage bags that contained marijuana.
II
In November 2007 Pineda-Moreno was indicted in the Dis-
trict of Oregon for conspiring to manufacture marijuana and
8706 UNITED STATES v. PINEDA-MORENO
for manufacturing marijuana in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(vii), and 846. He moved to sup-
press the evidence derived from using the mobile tracking
devices (which had helped to establish cause for the Septem-
ber 12 stop and led to Pineda-Moreno consenting to a search
of his home). He argued that the agents violated the Fourth
Amendment’s prohibition against “unreasonable searches and
seizures” by attaching the devices to his car and by trespass-
ing on his driveway to do so, all without a warrant. The dis-
trict court denied the motion.
Pineda-Moreno then pleaded guilty to the conspiracy
charge, but reserved the right to appeal the denial of his
motion to suppress. The district court accepted the plea, dis-
missed the manufacturing count of the indictment, and sen-
tenced Pineda-Moreno to 51 months’ imprisonment and five
years’ supervised release.
We affirmed the denial of Pineda-Moreno’s motion to sup-
press, concluding that the installation and use of the tracking
devices was not a Fourth Amendment search. 591 F.3d 1212,
1214-17 (9th Cir. 2010). Pineda-Moreno thereafter filed a
petition for certiorari in the Supreme Court of the United
States. See S. Ct. No. 10-7515.
Subsequent to our decision, the U.S. Supreme Court
decided Davis v. United States, 131 S. Ct. 2419 (2011), and
United States v. Jones, 132 S. Ct. 945 (2012). Davis holds that
“searches conducted in objectively reasonable reliance on
binding appellate precedent are not subject to the exclusionary
rule.” 131 S. Ct. at 2423-24. Jones holds that the govern-
ment’s installation of a Global Positioning System (GPS)
tracking device on a target’s vehicle, and its use of that device
to monitor the vehicle’s movements, constitutes a “search”
under the Fourth Amendment. 132 S. Ct. at 949.
After issuing the latter decision, the Supreme Court granted
Pineda-Moreno’s certiorari petition, vacated our judgment in
UNITED STATES v. PINEDA-MORENO 8707
the case, and remanded to our court so that we could consider
it further in light of Jones. 132 S. Ct. 1533 (2012).
III
On remand Pineda-Moreno once again asks us to suppress
the evidence derived from the DEA’s mobile tracking
devices. Invoking Davis, the United States contends that even
if its agents’ tracking-device conduct is unconstitutional under
Jones, suppression is unwarranted because the agents acted in
objectively reasonable reliance on binding precedent when
they attached and used the tracking devices.
[1] Jones has made clear that the agents conducted Fourth
Amendment searches when they attached tracking devices to
Pineda-Moreno’s Jeep and used the devices to monitor the
Jeep’s movements. Indeed, for purposes of this remand we
will assume, without deciding, that those warrantless searches
would be “unreasonable” under the Fourth Amendment after
Jones.
But Jones had not been decided when those searches
occurred. And when the agents attached and used the mobile
tracking devices that yielded the critical evidence, they did so
in objectively reasonable reliance on then-binding precedent.
In 2007, circuit precedent held that placing an electronic
tracking device on the undercarriage of a car was neither a
search nor a seizure under the Fourth Amendment. United
States v. McIver, 186 F.3d 1119, 1126-27 (9th Cir. 1999). Cir-
cuit law also held that the government does not violate the
Fourth Amendment when it uses an electronic tracking device
to monitor the movements of a car along public roads. United
States v. Hufford, 539 F.2d 32, 34 (9th Cir. 1976); see United
States v. Miroyan, 577 F.2d 489, 492 (9th Cir. 1978) (stating
that “the monitorial use of [an electronic] tracking device can-
not constitute a search” under the Fourth Amendment)
(emphasis omitted).
8708 UNITED STATES v. PINEDA-MORENO
Our circuit precedent may also have permitted the agents to
walk onto Pineda-Moreno’s driveway to attach the devices to
his Jeep. As of 2007 we had held that, “to establish a reason-
able expectation of privacy in [one’s] driveway”—and thus to
obtain Fourth Amendment protection for it—one “must sup-
port 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); see
also United States v. Magana, 512 F.2d 1169, 1171 (9th Cir.
1975) (“A driveway is only a semiprivate area.”). Pineda-
Moreno’s driveway was visible from the street, had no fence
or gate, and did not have “No Trespassing” signs on or near
it.
But we need not resolve whether the agents were autho-
rized in 2007 to walk onto Pineda-Moreno’s driveway
because, even without the evidence obtained from the
driveway-attached tracking devices, the government had
amassed enough other evidence, in good faith reliance on
binding precedent, to justify the September 12 stop of Pineda-
Moreno’s Jeep. The tracking-device attachments made in pub-
lic areas showed four trips to suspected grow sites. That infor-
mation supplemented the evidence obtained before the
devices were used: the fertilizer buy, the purchase of deer
spray and a hand sprayer, the visit to the irrigation supply
store, the evasive driving, the large food buys, and the obser-
vations that the mobile home had no irrigation system or deer
problems. The driveway attachments did disclose that the
Jeep visited a Wal-Mart and a Home Depot on August 30, but
that information was cumulative of other evidence that had
been obtained in good faith.
[2] In short, the agents’ conduct in attaching the tracking
devices in public areas and monitoring them was authorized
by then-binding circuit precedent. Those attachments yielded
the critical information that justified stopping Pineda-Moreno.
Whatever the effect of Jones, then, the critical evidence here
UNITED STATES v. PINEDA-MORENO 8709
is not subject to the exclusionary rule. See Davis, 131 S. Ct.
at 2423-24.1
IV
[3] We recognize that Jones at least partially overrules
McIver, Hufford, and Miroyan, and may also affect the vital-
ity of Maisano and Magana. We can address the effect of
Jones more fully in future cases. For today, it is enough to
conclude that suppression is not warranted here because the
agents objectively relied on then-existing binding precedent
when they approached Pineda-Moreno’s Jeep in public areas,
attached tracking devices to it, and used those devices to mon-
itor the Jeep’s movements.
AFFIRMED.
1
In light of our conclusion, we deny Pineda-Moreno’s pending Motion
for Leave to Submit Supplemental Briefs.