Chief Judge Alex Kozinski gives a thumbs up to privacy for the poor

A user’s manual that’s 200+ years old can be difficult to apply to modern technologies. Thus, it’s been a challenge for judges interpreting the Fourth Amendment as it applies to police surveillance via GPS tracking devices on cars.

There has been a plethora of precedents set across the country as to whether slapping a GPS tracker on a car is considered a “search” and whether a warrant is needed. A Wisconsin state court decided last year that warrantless GPS surveillance is okay. Within a week of the Wisconsin decision, a New York state court disagreed. More recently, the D.C. Circuit ruled that GPS tracking is indeed a search, and introduced what the Volokh Conspiracy’s Orin Kerr called a “mosaic theory of the Fourth Amendment,” i.e., that a series of discrete facts may be public, but their aggregation may violate privacy rights. Kerr dissed the D.C. Circuit’s mosaic ruling, but Cato’s Julian Sanchez was a fan.

The Ninth Circuit got in on the GPS-Fourth Amendment throwdown too. As noted by How Appealing, a Ninth Circuit panel — consisting of two of the court’s more conservative members, Diarmuid O’Scannlain and Randy Smith, and Judge Charles Wolle (S.D. Iowa), sitting my designation — ruled that police officers who placed a GPS device on the underbed of a suspected drug dealer’s car while it was parked outside of his house did not violate his constitutional rights.

Chief Judge Alex Kozinski was not happy about their decision. He wrote an angry dissent from the denial of rehearing en banc, accusing the judges of “cultural elitism,” by granting privacy rights to the rich but not to the poor…

Juan Pineda-Moreno was a suspected marijuana dealer. The police strolled up to his car — which may have been in his driveway or on the street — and attached a tracking device, data from which proved instrumental in prosecuting him. Pineda-Moreno appealed his conviction, alleging that his Fourth Amendment rights were violated because the po-po entered “the curtilage of his home” to place the devices. Judge O’Scannlain (Lat’s former boss), on behalf of a unanimous panel, wrote (citations omitted):

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 driveway itself (i.e. enclosures, barriers, lack of visibility from the street) or the nature of activities performed upon it.”

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.

In his dissent [PDF], Kozinski quite eloquently defines “curtilage,” and then excoriates his fellow judges for their excoriation of the Fourth Amendment:

The panel authorizes police to do not only what invited strangers could, but also uninvited children—in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage.

Poor cat. Poor azaleas.

Josh Gernstein at Politico picked up on the money quotes from Kozinski:

I don’t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle’s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu.

Does being “creepy” make an act unconstitutional, though? If so, the po-po need to cease their Facebook-stalking immediately.

Judge Kozinski points out that his fellow judges don’t mind the civil liberties intrusion because it would never happen to them. Though federal judges may complain about their salaries, they’re better off than most Americans:

The very rich will still be able to protect their privacy with the aid of electric gates, tall fences, security booths, remote cameras, motion sensors and roving patrols, but the vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel’s ruling. Open driveways, unenclosed porches, basement doors left unlocked, back doors left ajar, yard gates left unlatched, garage doors that don’t quite close, ladders propped up under an open window will all be considered invitations for police to sneak in on the theory that a neighborhood child might, in which case, the homeowner “would have no grounds to complain.”

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it.

Are they, though? Some might argue that privacy is increasingly a luxury good, like Michelin-starred restaurants, designer clothing, and high-priced hookers — only high rollers get to partake.

Kozinski continues:

Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect—and certainly did not consent—to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.

When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

By writing this irate dissent from denial of rehearing en banc — which was joined by Judges Stephen Reinhardt, Richard Paez, Marsha Berzon and Kim Wardlaw — Kozinski is flashing the Bat Signal to the Supreme Court. The Nine will likely have to weigh in on this issue and its jumble of precedents (noted by Judge O’Scannlain in his second footnote), sooner rather than later.

The question of the constitutionality of GPS tracking is an interesting and controversial one. For now. Soon this will all be obsolete, as police will just track us even more efficiently — using our smart phones.

UNITED STATES v. PINEDA MORENO: Opinion [Findlaw]
UNITED STATES v. PINEDA MORENO: Dissent from the denial of rehearing en banc [U.S. Court of Appeals for the Ninth Circuit]
Kozinski accuses colleagues of ‘cultural elitism’ [Politico]
D.C. Circuit Introduces “Mosaic Theory” Of Fourth Amendment, Holds GPS Monitoring a Fourth Amendment Search [Volokh Conspiracy]
GPS Tracking and a ‘Mosaic Theory’ of Government Searches [Cato @ Liberty]
There’s No Privacy in Third World America [Huffington Post]


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