by Yevgeny Shrago
Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals visited Harvard Law School yesterday to discuss his recent blistering dissent in a Fourth Amendment case. In United States v. Pineda-Moreno, the Ninth Circuit weighed in on the growing jurisprudence surrounding police officers placement of a GPS tracker on a suspect’s car without a warrant. The three judge panel hearing the case held that this did not violate Pineda-Moreno’s Fourth Amendment rights because he had no reasonable expectation of privacy for the underside of a car parked in his driveway. Judge Diarmuid O’Scannlain reasoned in his unanimous opinion that if a neighborhood child could place the tracker, so could the cops.
Chief Judge Kozinski vehemently disagreed with the panel’s “wayward child” standard, pointing out that such a rule gives one expectation of privacy for those wealthy enough to afford enclosed garage parking and another for those reduced to parking on the street. Chief Judge Kozinski accused the panel (and implicitly the entire judiciary) of “unselfconscious cultural elitism” for failing to understand the divergent situation. Although Kozinski’s attack on his fellow judges’ reasoning provided a powerful counterpoint, HLS Professors Jeannie Souk and Charles Fried suggested a different tack for understanding the decision: letting the police be more effective at doing the jobs they have a constitutional right to do anyway.
In the discussion, Chief Judge Kozinski provided an expanded view that not only GPS tracking, but also the ability to pull a suspect’s location off his cell phone signal with the provider’s permission, was “creepy and un-American.” He pointed out that with this sort of information, the police could learn personal details about anyone without needing a shred of probable cause. In particular, cell phone signals could be used to pinpoint a person’s location to determine that they were, for example, having an affair.
Professor Suk, with an assist from Professor Fried, raised a pointed objection. Officers can tail a suspect without a warrant, conducting surveillance that gives them the same intimate details. Before mobile telecommunications, though, the surveillance required stakeouts and teams of officers. Denied the ability to use GPS and cell phone towers, the police would have to spend significantly more resources to achieve the same result, while also risking that the suspect would give them the slip.
For a libertarian like Chief Judge Kozinski, making government ineffective is a feature, not a bug. For progressives, the issue is more complicated. Even though Kozinski’s dissent powerfully captures how the law discriminates in its level of protection for the rich and the poor, the discrimination in GPS and cell phone tracking capability is not the place to fight this battle. Fixing this problem by creating government inefficiency only exacerbates the inability of police departments to undertake community-based policing—and takes money away from solutions that can help remedy the underlying income inequality issues. We would be better off using limited political and financial resources to focus on smoothing out the larger inequalities in the system than battling police departments to make them keep doing things the old-fashioned way.