This month, the Ninth Circuit joined the unfortunate list of courts that have said that when police secretly attach a GPS device to your car, it's not a search. Refusing to rehear a January ruling, the Ninth Circuit held that because you have no expectation of privacy in your driveway (because, in part, a neighborhood kid could run there to get a lost ball - seriously), that you cannot object, under the Fourth Amendment, to a cop hanging out in your driveway, and ... well, attaching a satellite monitoring device to your car.
Accompanying this disheartening and misguided opinion was a strongly-worded dissenting opinion from Chief Judge Alex Kosinski. He noted that "The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last."
Those sure are words after the ACLU's own heart. But it was perhaps his comments about his colleagues' motivations for this ruling that are the most thought-provoking.
Judge Kosinski suggests that federal judges, who as a group are well-off and well-educated, are out of touch with the realities of the litigants before them. He reminds us that the constitution's application must be consistent among the rich and poor to have any meaning:
"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......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."
The ACLU of Nevada certainly agrees with Judge Kosinski's disappointment.