Via Kash Hill* at ATL, the 9th Circuit addressed the question of whether the installation of a GPS tracking device on a suspect’s car, a very hot issue with some split decisions across the country, is an illegal search and seizure. 

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 by 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.

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.

The unanimous decision from the conservative wing of the court didn’t sit well with Chief Judge Alex Kozinski, who had the opportunity to speak his mind in dissent from denial of rehearing en banc.  He first went after the notion that the police are held to the standard of the most wayward child:

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.

But aside from that, Judge Kozinski raised an issue that rarely gets aired.

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.

It’s not that all judges are fabulously wealthy, though very few have the hook to find their way to the federal bench without having achieved enough green space to meet and greet the power players at the right sort of gala balls.  But a recurring theme is that people in the system, and particularly judges, share nothing in common with the lifestyle of the poor and unknown. 

That the panel would suggest that the limitation of curtilage is meaningless with the installation of gates smacks of Marie Antoinette and breadless peasants.  No doubt that Judge O’Scannlain didn’t intend it that way, but his “sensibilities” shine through nonetheless.  You can’t help it when your conception of privacy depends on the height of your privet hedge.

Judge Kozinski’s criticism of the panel’s bias is not just biting, but really goes to the chasm between life for the masses and the world of judges.  When he writes, “no truly poor people are appointed as federal judges,” it’s too obvious for words.  How would a “truly poor” person ever get on the radar of the powerful to be considered?  The closest we could come would be trench lawyers, who by no means are “truly poor” but at least have spent some time looking into the eyes of real people, maybe coming to appreciate their world. 

Even when we get the pleasure of a judge, like Sonia Sotomayor, who came from the “urban ghetto” of the Bronx, it was via Princeton and Yale, the District Attorney’s office and the Second Circuit.  There’s nothing like Princeton and Yale to suck the ghetto out of a judge.  And the aspirations to gentle society tend to skew one’s sensibilities, and acceptance of the fact that the mass of humanity doesn’t get to conceal their curtilage behind automatic gates.

Judge Kozinksi’s point, of the lack of diversity of background and understanding on the bench, is not only real, but defies easy solution and produces a jurisprudence grounded in the sensibilities of wealth.  It’s a heck of a point to think about.

*  ATL’s token non-lawyer writer, Kashmir Hill, has just announced that she’s finally gotten a real job and is leaving David Lat for the greener pastures of Forbes magazine. I wish her the best of luck, and congratulate Kash on climbing out of the hole of the blawgosphere.  Now if she could only get a decent date.