Having  a driveway open to the street costs the defendant dearly in United States v. Pineda-Moreno, case no. 08-30385 (Jan. 11, 2010), in which the court upholds the constitutionality of affixing an electronic tracking device to the undercarriage of the defendant’s vehicle while it was parked in his driveway, even though the government conceded this was within the curtilage of defendant’s home.

We need not decide, however, whether Pineda-Moreno’s vehicle was parked within the curtilage of his home. Even assuming it was, it was parked in his driveway, which “is only a semi-private area.” United States v. Magana, 512 F.2d 1169, 1171 (9th Cir. 1975). “In order to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing the special features of the drive- way 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). Pineda- Moreno offers no such evidence. To the contrary, the driveway had no gate, no “No Trespassing” signs, and no features to prevent someone standing in the street from seeing the entire driveway. Additionally, one of the investigating agents testified that “an individual going up to the house to deliver the newspaper or to visit someone would have to go through the driveway to get to the house.” 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. Thus, because Pineda- Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of his home.

Subtle distinctions from precedent are often asserted in Fourth Amendment cases, but they are often not enough. Here, it was only the government’s concession that the driveway was within the curtilage of defendant’s home that distinguished the case from otherwise foursquare precedent (United States v. McIver, 186 F.3d 1119 (1999)). The court’s reasoning makes that distinction it immaterial.