By John M. Rogitz

I’ll give Time writer Adam Cohen credit, he brought national attention to something that had escaped the MSM’s attention for two weeks. The 9th Circuit Court of Appeals handed down a ruling on August 12 essentially affirming the government’s ability to come on to your property a night, affix a GPS device to your vehicle and then track you without any sort of warrant.

Cohen’s write-up published by Time earlier this week has now led to a backlash against the 9th Circuit for allowing law enforcement to circumvent the Fourth Amendment. Thanks, Adam. I’m glad some one was paying attention.

The facts of the case at the heart of the controversy are as follows: Police snuck onto a suspected marijuana grower’s property in the middle of the night and attached a GPS tracking device to the underside of his car. Law enforcement then proceeded to track the suspect’s every move while building a case against him.

The 9th Circuit’s holding that the police did not need a warrant in that situation has two important legal implications. First, the police can enter the “curtilage” of your home without your permission because you have no reasonable expectation of privacy in the areas immediately surrounding your house. That is, unless you can afford to enclose your driveway and yard with a fence or barrier to give you that reasonable expectation. More on that caveat later.

Second, police can track you via GPS without a warrant because you have no reasonable expectation of privacy in activities outside your home because you are conducting those activities in public places. That shocks the conscience a bit too, doesn’t it? Another win for Big Brother.

Well, don’t worry dear readers. There’s disagreement among the Federal circuit courts on this issue. When that happens, the chance that the U.S. Supreme Court will review the issue goes way up. Another plus for those of us who value our Constitutional rights is that the 9th Circuit has the highest Supreme Court turnover rate of any of the circuits.

Regardless, I take issue with the tone of Mr. Cohen’s article. He praises one conservative while backhandedly disparaging the rest of us. Cohen applauds the author of the 9th Circuit’s dissenting opinion, which defends the Constitution against the usurping majority, but still finds it appropriate to debase conservative Chief Judge Alex Kozinski’s overall conservative philosophy.

Chief Judge Kozinski wrote a scathing dissent of the unconstitutional precedent set by the 9th Circuit’s majority. Judge Kozinski explained that the court’s decision implicates an inherent “cultural elitism” because judges can afford home security and fences to protect their driveways and create a reasonable expectation of privacy while the poor have no remedy to prevent police intrusion. Yet Cohen condescendingly wrote that Judge Kozinski “came across as a raging liberal” because Kozinski lamented the lack of diversity amongst judges, thereby implicitly suggesting that conservatives do not value diversity.

Apparently only liberals are allowed to fight for the little man. How biased and culturally elite is that?

Mr. Cohen proves that liberals are capable of offensive, belittling elitism too. Since the 9th Circuit’s liberal majority were the ones losing perspective, maybe Mr. Cohen should have been even more critical of those sharing his political philosophy and less critical of Judge Kozinski.

You ultimately did well, Adam Cohen…as unwittingly as it may have been. You exposed a bogus decision by the 9th Circuit, as well as your own intellectual sloppiness as a writer and the left’s general inability to recognize personal hypocrisy. Congrats.

COPYRIGHT 2010 JOHN M. ROGITZ