Dissenting: On Cultural Elitism in the Law

Drug Enforcement Agency agents, suspecting Juan Pineda-Moreno of growing marijuana, snuck onto his property in the middle of the night and planted a GPS device on the bottom of his Jeep. Pineda-Moreno admitted to the marijuana charges (lets not get into the merits of drug laws against cannabis growth and possession), but has challenged the government’s evidence obtained through GPS. The US Ninth Circuit Court of Appeals has now twice held that what the DEA did was perfectly fine.

To summarize, USA v.s Juan Pineda-Morena says that the government can step into your garage without a warrant, put a surveillance device on your car and in doing so, is not violating your privacy rights. The decision follows others where the once-liberal Ninth Circuit court effectively brutalized the Fourth Amendment.

The case begs the question of race and class. We know whose trailers and garages are so close to the public domain that agents can tread them without any real violation since neighbors do it all the time. We also know who lives in mansions and gated communities, and hence less susceptible to this particular encroachment of privacy.

I think Chief Judge Kozinski’s dissent is really important and makes a strongly-worded point made in few other judicial opinions:

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. 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 some-
body 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.

I affirm.