Your Right to Privacy
Posted: Monday, September 13, 2010
by Christian Denmon
Denmon & Denmon Trial Lawyers
Tampa Criminal Attorney on your Vanishing Right to Privacy
You may not have the right to privacy in your home that you once had. Recently, the 9 th Circuit Court of Appeals affirmed a decision of a lower court giving the green light to the law enforcement to sneak into a man's yard at night and plant a GPS device on his car parked in his own driveway. From the dissenting voice of Judge Kozinski regarding State v. ______
The heart of the issue is not the tracking of the car by the government via satellite. (Although most citizens will likely find this scenario rather unsettling). However, the real concern is how the gps device got on the car. The Appellate Court's affirmation of the lower court's decision finding this reasonable represents a curtailment of a citizen's right to be free from governmental intrusion absent a warrant in his own home and curtilage. A citizen enjoys the greatest privacy in his own home. The court has concluded time and again that a man's home not only encompasses the physical structure or building, but also that structure's curtilage. That is, the fourth amendment protection applies to the home itself, as well as the areas around the home so closely associated with it, that is considered part of the home itself. This includes the garage, the backyard, the shed in the backyard, the front lawn and the driveway.
Now sometimes, what is curtilage has been a difficult question to answer. The sidewalk in front of the home? The yard between the sidewalk and the home? Regardless, through the years the driveway has indeed been considered a part of the home's curtilage. That would normally mean you have the same right to privacy in your driveway as you do in your backyard.
Which brings us to the most shocking part of the 9th Circuit's decision not to rehear the case: They seem to be not contesting that the driveway in question is part of the defendant's curtilage. Rather, they are just deciding that, in his case, the fourth amendment rule regarding privacy does not apply. They thus seem to be finding an exception to the US Supreme Courts home + curtilage rule.
So how could this be decided?
Well, according to Judge Kozinski's dissent, it is the lack of security gates, or fences, or guards around the yard and the driveway that lead the other Judges to conclude that the defendant did not have an expectation of privacy in his yard. In other words, the sort of things that affluent people tend to have in in front of their yards.
Citizens without the proper means to afford the fence, security gate, or guardhouses of their more affluent neighbors may be dismayed to discover that, at least in the 9 th Circuit, they have less privacy rights in their yards and driveways than their more upscale neighbors.
If you feel that your Right to Privacy has been violated by law enforcement please contact a lawyer. Denmon & Denmon Trial Lawyers have been serving the Greater Tampa area, and would like to assist in anyway necessary. Contact us by telephone at 1-800-790-5641 or visit us at our webpage at Denmonlaw . You can also stay up to date on news and other law related topics at our Denmon Law News and Updates webpage.
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