Court Rules that Your Driveway is Not Private Property…Unless You’re Rich

Monday, August 30, 2010
Dissenting Judge Alex Kozinski

Law enforcement can enter the driveways of people suspected of criminal behavior and attach tracking devices to their cars, all without a warrant, says a panel of judges on the Ninth Circuit Court of Appeals. The decision runs contrary to other legal opinions that have held the driveways and surrounding areas outside a home as private property and protected under the Fourth Amendment. But the legal rationale employed by the judges indicate that their decision applies only to driveways that are easily accessible—in other words, not to those blocked by a gate or fence, such as those commonly found outside the homes of people who are wealthy.

Chief Judge Alex Kozinski, a Ronald Reagan appointee, dissented vigorously from the decision, calling it “cultural elitism.” “There's been much talk about diversity on the bench,” he noted, “but there's one kind of diversity that doesn't exist. No truly poor people are appointed as federal judges.”
In the case in question, police, suspecting Juan Pineda-Moreno to be a marijuana dealer, entered his property in the middle of the night and attached a GPS tracking device to the underside of his car, which was parked in his driveway. The court ruled that because a driveway is open to strangers, such as children retrieving a ball that went under a car or pizza delivery men, it is also open game for the police. Kozinski, who grew up in communist Romania, called the actions of the police “creepy and un-American.”
According to Kozinski, “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.”
He added, “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.”
-David Wallechinsky, Noel Brinkerhoff
United States v. Juan Pineda-Moreno (Ninth Circuit Court of Appeals) (pdf)


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