Too poor for privacy? People v. Maki and the tent as a Fourth Amendment frontier

If you're poor enough, California says, "No Constitution for you!" In the unpublished appellate decision People v. Maki, the California Court of Appeal declared that a man living in a tent on a public sidewalk had no Fourth Amendment protection against a warrantless police search. Sheridan Maki's tent obstructed a sidewalk, which violated municipal ordinances, so the appellate court took an astounding leap of logic and ruled that because he was unwelcome, he had "no objectively reasonable expectation of privacy." That should spook you more than a glowing pumpkin.

The Fourth Amendment, which guards against "unreasonable searches and seizures," isn't supposed to hinge on your tax bracket. But increasingly, courts are drawing the line against the poor. Once the state decides your presence is unlawful or you've erred on the wrong side of a little ordinance, it can justify treating you as if you have no rights at all. Jaywalkers, keep reading!

A tent is a temporary, private space. It's like a public bathroom stall. If you're on a jog and stop into the restroom at the park, are you entitled to privacy while doing your business? Of course. That stall is in a public space, but it's understood to be a private enclosure, and a tent is the very same.

Fifty-eight years ago, the Supreme Court decided Katz v. United States, a landmark case where the FBI had eavesdropped on a man making gambling calls from inside a public phone booth. (Not to be elder millennial-coded, but this thing called a "phone booth" was a glass box people used to step into on sidewalks to make calls from a public landline. Superman used them as changing rooms.) The Court ruled that even though Katz was in a public space, the conversation was private and thus protected by the Fourth Amendment. That's where we get the principle that the Constitution "protects people, not places."

The Maki opinion refuses to acknowledge that unhoused people at the park are still people. 

Like Katz, Maki enclosed himself in a small space with an expectation of privacy. His tent was tied shut. He lived there. Police couldn't see inside from the street. But instead of analyzing the structure as we would with an apartment window or a porta potty, the court fixated on the supposed illegality of Maki's presence in the first place. Because he didn't have permission to be there, they reasoned he couldn't expect privacy at all.

This argument is also flawed because it begs, "What other rights did Mr. Maki give up by being in a place he didn't have permission?" Are the unhoused children of the park stripped of their right to enroll in public school? Are undocumented people stripped of the right to freely speak? Can your son be interrogated without Miranda warnings because he wasn't supposed to be in the Target parking lot after closing?

Maki was stripped of his rights just for being poor, and if you don't believe me, think if he had been doing the exact same things but had a car. If Maki had been selling drugs from a car, the court might have applied the so-called "automobile exception" and still required probable cause or exigent circumstances for a search. If he had been staying indoors, even at a friend's apartment, the police likely would've needed a warrant. But because he was too poor for a car or an apartment, and because the city didn't like where he existed (where are poor people supposed to exist by the way?), all his constitutional rights were treated as optional.

This is fear-based policymaking. The image of a "meth-dealing tent" near gym-goers and theater patrons triggers a visceral reaction. "Scary man doing bad things! Stop him!" And that fear fuels rulings like this one, which are more about punishing poverty and discomforting aesthetics than actual public safety. The police could have gotten a warrant and addressed the crime without shredding the Constitution. Instead, they skipped due process, and the court rewarded them. 

People forget why warrants matter. The Constitution demands due process not to protect the guilty, but to protect everyone else. Warrants aren't red tape. They're guardrails. They force police to explain their suspicion to a neutral judge before invading someone's private space. If the probable cause is there, great -- then get the warrant. Simply saying "we don't like him here" can't equal, "skip the Constitution."

Rights erode slowly, usually by targeting people we're told not to sympathize with, and then it's a smooth power grab for all of us. Today it's Maki in his tent. Tomorrow it's your tall daughter being followed into a bathroom stall at the park by someone demanding proof she's using the "right" bathroom. Once we decide that privacy only belongs to people we like in the places we want them, we give up the very idea of rights at all.

We don't get to abandon constitutional protections just because someone is unpopular. And who has less power than the unhoused? California should fortify rights at the margins. We can't claim to protect the vulnerable while building a justice system that is pay to play, where dignity depends on whether you can afford $3,000 rent.

To be fair, the Fourth Amendment isn't absolute. There are narrow exceptions to the warrant requirement, like at international borders or airports, where security interests are vastly different. We wouldn't want someone smuggling oranges through LAX. Zones like ports and prisons are designed with high-risk safety in mind.

What we're seeing in People v. Maki is something entirely different: the creeping invention of a poverty-based exception. There's no threat to national security at the little town park where poor people sleep. Maki was just a man in a tent, in a city that failed to house him, being treated like a border threat because he was easy to displace.

Let's take the Maki opinion to its finish line. If you go glamping in a national park during a government shutdown, are you now an open target for search? When the Fourth Amendment becomes conditional on zoning codes, business hours, obscure local ordinances, curfews or whether or not the government can agree on a funding bill, it seems more like a convenience or a privilege. Remember, if the right can be taken away from someone else, it can be taken away from you.

When the Fourth Amendment says you have the right to be secure in your persons, houses, papers and effects, it doesn't say anything about property lines or the little sign at the park. You have that right whether your structure passes code or not, or whether you paid rent on time.

For all the talk about following rules, it's rich that the court said the police didn't have to follow the one that matters most: the Constitution. The court took a shortcut: Because Maki's structure was illegal, so was his expectation of dignity. That's not law. That's anti-poor bias and you, reading this with your low-interest mortgage and 401k, think it can't be you, but you're nearly one parked-in-a-fire-zone away from some kid cop rustling through your gym bag without any probable cause.

This decision is unpublished, meaning it can't be cited as precedent. But we're close. Maki's reasoning is part of a growing legal and cultural movement (see: Grant's Pass) that redefines "criminal" to mean "unhoused," and "unhoused" to mean "unworthy of rights."

Rights that only apply to the comfortable aren't rights at all. They're privileges, and they can be revoked.