U.S. v. Maddox, No. 09-30284 (8-12-10) (Hawkins with Lucero; dissent by N. Smith). The defendant was pulled over for traffic violations. He became belligerent (note: asking the officer "Why the f * * k are you stopping me!" is not a good way to start the conversation), and was found to be driving on a suspended license and had other problems with the car (expired tags), and he ended up being arrested. Upon arrest, the officer took the defendant's keychain with an attached closed container and placed them on the seat. After the defendant's arrest, and the defendant being placed and secured in the police car, the officer went back to defendant's car, retrieved the keychain, unscrewed the container, and --lo and behold -- it contained what appeared to be meth. Subsequently the car was impounded and a search of a laptop container disclosed a handgun and more meth. The 9th held that the unscrewing of the container screwed up the Fourth Amendment, because it was not a search incident to arrest. The defendant was away from the car, secured, and not a threat. There was no threat visible in the car. Hence, the keychain container should not have been searched. The laptop container should not have been subject to a so-called inventory search because the car need not have been impounded under state law. The defendant offered to have a friend drive it away, and the car was not impeding anything. It was not a valid search. In dissent, N. Smith argues that the keychain was in defendant's hands when he was arrested, and so that made it subject to search incident to arrest. The timing should be left to the officer.

Congratulations to AFPD Matt Campbell of the Federal Defenders of Eastern Washington and Idaho (Spokane).

U.S. v. Pineda-Moreno, No. 08-30385 (8-12-10) (dissents from order denying en banc review by Kozinski with Reinhardt, Wardlaw, Paez and Berzon; Reinhardt also writes a separate dissent).

The 9th turns down a request for en banc hearing in a case where the panel (O'Scannlain, N. Smith and Wolle, D.J.) upheld the police sneaking onto a driveway in the dead of night and placing a GPS tracking device on the car. The panel held this was not a violation of curtilage. Kozinski attacks this reasoning, and in sweeping language accuses the 9th (his brethren) of having "previously decimating the protections of the Fourth Amendment" in regards to the home, this decision "dismantles" the protections of the curtilage. Kozinski is at his most biting attacking the specious reasoning of the panel, and its examples. Kozinski makes the special point that the judges are elitist:

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 a 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 the 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. Whatever else one may say about Pineda-Moreno, it's perfectly clear that he did not
expect--and certainly did not consent -- to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.

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 devise 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. The panel's breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

Pp. 11508-509. (As for concerns about how the "everyday people who live in poverty" are not "close to the hearts and minds" of judges, because this is not how "we and our friends live," perhaps this should be a call or more public defenders being appointed to the bench).

In his separate dissent, Reinhardt writes an epitaph for the Fourth Amendment, and the nails in the coffin that are the recent decisions of the judiciary.