“Liberal” Appeals Court OKs Warrantless GPS Tracking by Feds

The U.S. Court of Appeals for the Ninth Circuit, much ballyhooed as liberal-leaning, is joining the rest of the former so-called “liberal” wing in falling into lockstep behind ever-increasing police powers. The appeals court last week declined a defendant’s request to review drug agents’ sneaking onto his property to affix GPS tracking devices to his private vehicle, and tracking his movements using such devices over a period of four months—with no search warrant—as a violation of his Fourth Amendment Rights.

The appellate court’s ruling essentially gives law enforcement agencies in the nine Western states under the Ninth Circuit’s jurisdiction the legal authority to surreptitiously enter personal property and attach a GPS tracking device on vehicles parked there without first obtaining a warrant.

The court’s ruling was a double win for the police state, holding that the police can enter your private property—in this case, the defendant’s driveway—and that the government can track your movements at will—in this case with GPS devices attached to your private vehicle. Apparently the court believes there is no reasonable expectation for privacy in your driveway, because strangers can walk onto it any time. By this logic, of course, Google satellite could be argued to have now removed a “reasonable” expectation of privacy anywhere on one’s property: after all, strangers can now peer into your backyard, so it must be OK for government agents to enter anytime—right?

The one dissent in the ruling came from a “conservative” judge, appointed by Ronald Reagan: Chief Judge Alex Kozinski. Judge Kozinski pointed out that a ruling that there is no reasonable expectation for privacy in one’s own driveway means that rich people who can put up gates and fences can essentially buy a right to privacy, while those who cannot afford such barriers have to accept the government’s right to sneak in at will:

“There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist,” he wrote. “No truly poor people are appointed as federal judges, or as state judges for that matter.” The judges in the majority, he charged, were guilty of “cultural elitism.”

For more on this new divide between our elite rulers and we just plain folks, see also: “A Splendid Essay on the Two Great Classes in Contemporary America

Mary L. G. Theroux is Senior Vice President of the Independent Institute. Having received her A.B. in economics from Stanford University, she is Managing Director of Lightning Ventures, L.P., a San Francisco Bay Area investment firm, former Chairman of the Board of Advisors for the Salvation Army of both San Francisco and Alameda County, and Vice President of the C.S. Lewis Society of California.
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