A young lawyer linked to this article in Time Magazine that talks about a decision by the 9th circuit in U.S. v. Pineda-Moreno holding that law enforcement can attach GPS devices to cars as part of their surveillance.  (FYI, the article is by Adam Cohen who is usually a day late and a dollar short.)  Baby lawyer’s comment on the article was would the people have the willpower to exclude such actions statutorily.  I responded, because I couldn’t help myself.  I asked why would I want the people to decide anything?  These are the same people who decided that Proposition 8 was a good idea.  These are the same people who are following Glenn Beck to the Lincoln Memorial to take back their white history.  I don’t know about the rest of you, but I don’t much trust the people.  And, I think a lot of the people think that if you aren’t doing anything wrong, the fourth amendment should not be a concern to you, i.e. let the officer search your car if you have nothing to hide. Fuck the constitution.  Only criminals need it.

But, I digress (and I probably will a lot during this post).  The rest of my comment was that it is so easy to get a warrant, even a wiretap, that maybe the 9th circuit just decided to stop the charade.  What’s the point?  We don’t really mean probable cause.  We just mean give us some stuff that we can sign off on.  And then the rest of us judges will just continue to sign off on it since, well, that first judge wouldn’t have signed off if there wasn’t actually probable cause, right?  We, who have been there and done that know this isn’t so.  We read the warrant applications (when they are deemed necessary for the search) and think “who would ever believe this?”  We know who believes them.  Judges.  They don’t live with us. If you think you know a judge who does. You are probably mistaken, or in love with them. If you think you know a judge who really does get it, tell them thank you from the rest of us.

Back to point one.  The facts in the 9th circuit case are absurd. The man bought fertilizer (which is known to law enforcement to be used by people who grow marijuana.  It is sold at Home Depot) He also bought irrigation equipment.  He bought deer repellant.  My good people.  HE BOUGHT A LOT OF GROCERIES.  What more do I need to convince you that this man was up to no good?  No good I tell you.  And, Mr. Pineda-Moreno lives in a trailer park.  Thus, he had no reasonable expectation of privacy in his driveway, despite the fact that it was within his curtilage.  Judges don’t live in trailer parks, my friend.

The dissent in the case is remarkable.  The language illustrates what many have been saying for a very long time, that until we decide to put someone in charge who has some balls, we will just keep seeing the demise of our rights until we’ve just got nothing left:

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.

The dissent didn’t believe it.  But they don’t count.  All’s well that ends well.  We don’t play to the dissent, unfortunately.

I recently had an appeal with the following facts:  Search warrant on house based on information from a CI*  (that’s it, no surveillance, no trash dump, nothing).  CI says there’s a shit ton of coke and heroin in this stash house.  Cops go in.  No one is home.  They find a small amount of heroin and cocaine.  Certainly not stash house worthy.  They find a document (or dozens, it’s hard to tell from the suppression hearing or the trial since defense counsel never actually looked at the discovery, but that’s a post for another day) with client’s name on it and then get an arrest warrant.  He’s walking down the street and they arrest him.  They take him to the station to process him and the testimony is that a man and woman walk into the station and ask to talk to this guy who is currently under arrest for possession with intent.  The cops say, of course! Go right ahead.  My client hands over a key to this man and woman and then the man says “where’s the dope, where’s the dope” client says “in the gas tank, in the gas tank” and then the cop comes over, takes back the key and man and woman (can you say co-conspirators?) leave.  The cops let them leave. See you later.  We don’t need your name.  We don’t need to know where you live.  Give us the key and have a nice day.

It gets better.  The police officer in the station, after kindly asking the couple to depart, calls two officers who are on the street.  He says, check the gastank of the car. I’ve got the key.  Now, it’s dark.  It’s nighttime.  But the officers find the car and the gas tank is locked. They shine a flashlight into it and can see yellow glassine envelopes.  Voila!  How freaking perfect is that?  Could you dream up something more implausible in your entire life?  I think not.  Oh, you could hope.  But you would fail.

You can’t make this stuff up.  I can’t anyway. But people can. And they get away with it.

I have done a substantial number of wiretap motions.  There is a show on HBO called “The Wire” and it’s about Baltimore and the drug trade and wiretaps.  There were times when I was working in Baltimore when I couldn’t separate fact from fiction.  And all of the wiretap applications started to look the same.  At one point I wrote, in a motion, that I actually copied my argument from another motion verbatim, since the police had done the same.  The only thing both of us had to change were the names.  I also used statistics from the United States Courts that shows how many wire tap applications were applied for and how many were granted.  If you take a peek here, you’ll see that in ten years, only two were denied.  Two.  I’ve read these things.  They suck.  Most of the time the police can’t figure out a way to get to the top guys and they’ll say so in their application.  The applications will read that they can’t get any evidence by doing, you know, police work, so they desperately need to infringe on any and every right a person might possibly conceive of having.  And the courts say, ok.

This angers me as much as the Glenn Beck rally.  Maybe even more.  Because the folks at that rally I can dismiss as dimwitted morons.  I cannot dismiss judges who hand out wiretaps like candy.  I cannot dismiss judges who refuse to maintain the sanctity of what this nation is supposed to stand for, who accept the fact that if you buy stuff for a garden and also buy groceries and live in a trailer park you don’t get no stinking privacy. Or those who believe that you can shine a flashlight in a gas tank and see drugs or that police are letting co-conspirators walk out of police stations.  It seems preposterous to me that anyone would believe such things.

I guess I’m never going to be a judge.

* CI is a confidential informant. A guy who almost always has something to gain by helping the cops out.