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.the clock to learn the identity of the persons From an alley opposite McIver/Eberleresponsible for growing the plants, the deci- residence, Officer Stewart, using night visionsion was made to install motion-activated equipment, observed McIver and Eberlevideo cameras to photograph persons who drive up, park, and remove two large plasticapproached the area where the plants were bags from the back of the Toyota 4Runnergrowing.Over the course of the next few and carry the bags into the house.The bagsweeks, two men and a white Toyota 4Run- had stems protruding from them.ner truck were photographed in the vicin- McIver and Eberle were subsequentlyity of the plants on several occasions.On arrested.The video surveillance and track-September 18, Special Agent Deist saw ing evidence was introduced at their trial,the Toyota 4Runner on Highway 93 near along with other evidence, and they werethe Sunday Creek area and followed it to a convicted.]Burlington Northern parking lot.The driverappeared to be the same person captured onALARCON, Circuit Judge.the photographs at the Sunday Creek mari-juana garden.Special Agent Deist traced the* * *vehicle s registration and determined that itwas registered to Christopher McIver.Early on the morning of September 23, We discuss each of the issues raised by1997, Special Agent Deist placed a magne- McIver and Eberle, and the facts pertinenttized tracking device on the undercarriage of thereto, under separate headings. 638 CONSTITUTIONAL LAWA.Warrantless placement of unmanned McIver argues that the act of placing thesurveillance cameras on national forest land electronic tracking devices on the undercar-McIver and Eberle maintain that the place- riage of the Toyota 4Runner constituted anment of unmanned cameras in a remote area unreasonable search and seizure.He doesof a national forest without a search warrant not contend that the officers infringed hisviolated their reasonable expectation of pri- Fourth Amendment rights by monitoringvacy.They cite no authority that supports this the beeper as the Toyota 4Runner travelednovel proposition.on the streets and highways.He forthrightlyMcIver and Eberle were on public land in a cites United States v.Knotts for the proposi-national forest when they cultivated their mar- tion that there is no reasonable expectationijuana garden.Thus, they knowingly exposed of privacy while on a public thoroughfare.their illegal activities to any person who vis- Instead, he asserts that the district courtited that area.McIver and Eberle conceded erred in denying his motion to suppress allthat the observation of the marijuana plants evidence gathered as a result of the trackingby the Forest Service officers did not violate devices. their Fourth Amendment rights.Clearly, the McIver first maintains that a search war-Forest Service officers had a right to carry rant was required because the officers com-out their law enforcement duties in each area mitted a trespass by placing the electronicof the Kootenai National Forest.It is also tracking devices on the undercarriage ofbeyond dispute that the Forest Service could the Toyota 4Runner while it was parkedhave stationed officers to conduct a 24-hour in his driveway.McIver concedes that thesurveillance of the marijuana garden.Toyota 4Runner was outside the curtilage.McIver and Eberle argue that the use of an The record shows that the driveway and theunmanned camera, as opposed to a camera apron in front of the garage were open tooperated by a Forest Service officer, consti- observation from persons passing by.Thetutes an unreasonable search in violation of driveway was not enclosed by a fence andthe Fourth Amendment.We reject the a gate.notion that the visual observation of the site In Oliver, the Court stated that only thebecame unconstitutional merely because curtilage, not the neighboring open fields,law enforcement chose to use a more cost- warrants the Fourth Amendment protectionseffective mechanical eye to continue the that attach to the home. .Assuming arguendosurveillance.We conclude that while McIver that the officers committed a trespass in walk-and Eberle may have anticipated that cultivat- ing into McIver s open driveway, he has faileding marijuana in a remote area of a national to demonstrate that he had a legitimate expec-forest would not be observed by law enforce- tation of privacy cognizable under the Fourthment officers, they have failed to demonstrate Amendment in this portion of his property.that they had an objectively reasonable expec- Secondly, McIver contends that thetation of privacy in their cultivation of mari- mere placement of the electronic track-juana in an area open to the public.We are ing devices on the undercarriage of thealso persuaded that the use of photographic Toyota 4Runner was an illegal search andequipment to gather evidence that could be seizure. We must first determine whetherlawfully observed by a law enforcement offi- this can be considered a search subject tocer does not violate the Fourth Amendment.the Fourth Amendment did it infringe anThe use of a motion activated camera under expectation of privacy that society is pre-these circumstances appears to us to be a pru- pared to consider reasonable? In New Yorkdent and efficient use of modern technology.v.Class, the Court held that there is no rea-sonable expectation of privacy in the exte-rior of a car because [t]he exterior of a* * *car, of course, is thrust into the public eye,B.Legality of the warrantless placement of and thus to examine it does not constitutethe electronic tracking devices on the Toyota a search. In Class, the officer s conduct4Runner in opening the door of the respondent s car PART II: CASES RELATING TO CHAPTER 5 639UNITED STATES V.LEEto move papers that obscured the vehicle s for an actual trespass is neither necessaryidentification number ( VIN ) located on nor sufficient to establish a constitutionalthe dashboard was held not to violate the violation.Fourth Amendment.The Court reasonedthat [t]he VIN s mandated visibility makesMcIver did not present any evidenceit more similar to the exterior of the car thanthat the placement of the magnetized track-to the trunk or glove compartment. Relyinging devices deprived him of dominion andin part on the Supreme Court s opinion incontrol of his Toyota 4Runner, nor didClass, the Tenth Circuit held in Unitedhe demonstrate that the presence of theseStates v.Rascon-Ortiz that [t]he under-objects caused any damage to the electroniccarriage is part of the car s exterior, and ascomponents of the vehicle.Under thesesuch, is not afforded a reasonable expecta-circumstances, we hold that no seizuretion of privacy. In Rascon-Ortiz, an officeroccurred because the officers did not mean- knelt down and looked under the car with aingfully interfere with McIver s possessoryflashlight. Here, rather than making a visualinterest in the Toyota 4Runner.inspection of the undercarriage of the Toyota4Runner, the officers placed the magnetizedAFFIRMED.electronic devices on the vehicle s under-carriage.In determining whether the offi-cer s conduct was a search, we must decideUNITED STATESwhether McIver has demonstrated that hev.intended to preserve the undercarriage ofLEEthe Toyota 4Runner as private free fromwarrantless governmental intrusion.McIver359 F.3d 194 (3d Cir
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