Poverty's Penalty

. . . .[W]ith liberty and justice for all.
The Pledge of Allegiance

Opinions from Federal Circuit Courts of Appeal are of interest to a
variety of people. Lawyers read them in order to learn what the law is
with respect to issues that have been ruled on by the Courts in the
Circuits in which they live. The poor, who live within the jurisdiction
of the Ninth Circuit Court of Appeals, read them to learn how their
constitutional rights differ from those of the well off. They were
reminded of this in August by the same court that had tutored them three
years earlier in the case of Rochio Sanchez v. County of San Diego

Sanchez was decided by the 9th Circuit Court of Appeals in April
2007 and the U.S. Supreme Court announced in November of that year that
it would not review the court's decision. The case stands for the
proposition that it is OK to search people's homes without a warrant.
Before my readers rush to add strong locks to all their doors I must
reassure them. The case has no applicability to my readers. Their
homes are protected by the Fourth Amendment to the U.S. Constitution
that bans unreasonable searches and seizures. The people in California
whose homes are not protected by the Fourth Amendment are those on
welfare.

In 1997, the San Diego District Attorney came up with "Project
100%." Under the program those wanting to participate in the county
welfare program must consent to unannounced visits from members of the
Public Affairs Fraud Division who walk through the house looking in
drawers, medicine cabinets, etc. to make sure no crimes are being
committed. The practical consequences are that welfare recipients are
forced to trade the protection afforded by the Fourth Amendment for
welfare benefits. That is not, of course, how the judge who wrote for
the majority sees it. It is how Judge Harry Pregerson, writing for the
dissenters, sees it. He said: "This case is nothing less than an
attack on the poor. San Diego's program strips these individuals of
their rights of privacy. . . . This is especially atrocious in light of
the fact that we do not require similar intrusions into the homes and
lives of others who receive government entitlements. The government
does not search through the closets and medicine cabinets of farmers
receiving subsides."

The poor have now learned of yet another way in which the protection
given many by the Fourth Amendment does not benefit them. It has to do
with curtilage. That is the area around the home and includes such
things as porches, driveways, front walks, etc. For 4th Amendment
purposes curtilage was treated the same as the inside of the house. A
warrant was needed to search the curtilage. The case of U.S. v. Pineda-Moreno in which a final decision was made in August changed that.

Pineda-Moreno addressed the question of whether the police
can come onto a driveway at night without a warrant and attach a
tracking device to the resident's car. The answer given by the 9th
Circuit court is that it's OK. Judge Kozinski, one of the dissenters in
the earlier case wrote a dissent this time around.

He began saying: " Having previously decimated the protections the
Fourth Amendment accords to the home itself. . . . Our court now
proceeds to dismantle the zone of privacy we enjoy in the home's
curtilage . . . . 1984 may have come a bit later than predicted, but
it's here at last." He observed that the majority justified its holding
by saying that delivery people, children, etc. could use the driveway
and sidewalk to get to the front door and, therefore, the resident had
no expectation of privacy there. He observed that people with gated
houses, electric fences, etc. were unaffected by the ruling since the
general public cannot get near their curtilage. Addressing the
insensitivity of the majority to the plight of the poor he said:
"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. . . . 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. . . . [T]he constitution doesn't prefer the rich over the poor. . . .
The panel's breezy opinion is troubling on a number of grounds, not
least among them its unselfconscious cultural elitism. . . . Today's
decision is but one more step down the gloomy path the current Judiciary
has chosen to follow with regard to the liberties protected by the
Fourth Amendment. Sadly, I predict that there will be many more such
decisions to come." Sadly, given the proclivities of today's Supreme
Court, he's probably right.