Author Archive | Orin Kerr

Supreme Court Grants Cert in Both Cell-Phone Search Cases

Today the Supreme Court agreed to hear both of the pending cell-phone search cases; as explained here, one case, Wurie, involves an old-style flip-phone, and the second, Riley, involves a modern smart phone. The Court modified the Questions Presented in Riley to match that in Wurie, so the question presented in both is “[w]hether evidence admitted at petitioner’s trial was obtained in a search of petitioner’s cell phone that violated petitioner’s Fourth Amendment rights.”

Why did the Court take both cases instead of just picking one? One reason may be that Riley has more representative facts but Wurie lets the United States play a larger role: As petitioner, DOJ can file a full length merits brief, a reply brief, and get 30 minutes of oral argument, instead of filing an amicus brief and getting the expected 10 minutes of the state’s oral argument time. Alternatively, perhaps the Justices figured that the issue can arise with many different facts, and they figured taking two cases lets them look at the broader issue (see, for example, Miranda v. Arizona). It’s hard to say.

Either way, these cases should be really important and very fun to watch. I expect them to be the first of many computer search-and-seizure cases the Supreme Court will hear over the next few decades. As I wrote in this short essay on the issue raised by Wurie and Riley, “The computer will be to the 21st century Fourth Amendment what the automobile was to the 20th century Fourth Amendment. In both cases, transformative technologies justify technology-specific rules.” The process of engaging in equilibrium-adjustment for the computer world is likely to occupy the Justices for a long time, and my bet is on it leading to a new criminal procedure with many computer-specific [...]

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Where is Congress in Obama’s Reforms on Section 215?

If I understand Obama’s new policy on Section 215, he is going to have the Executive Branch ask the judges on the Foreign Intelligence Surveillance Court (FISC) to begin to limit when the Executive can query the Section 215 database. That is, he will ask the judiciary to take on a new power to limit the Executive, so that the Executive can only query the database when the executive gets a court order signed by the FISC. In his words, “I have directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency.”

Maybe I’m just old-fashioned, but doesn’t Congress need to be involved in this little enterprise? The FISC is a creation of Congress. It has no power to do anything that Congress doesn’t grant it. The Executive and the Judiciary can’t just meet and agree on a new set of rules to govern surveillance programs; those rules are supposed to be generated by Congress. I suppose it shows how far from Congress’s text the FISC has taken the law that the Executive sees the FISC as the primary negotiating partner in creating new rules. The FISC’s interpretation of Section 215 is based on an implausible reading of Congress’s law, so it’s almost like it’s the FISC’s authority at issue, not Congress’s. But I hope we could recognize that FISA is a statute and statutes are enacted by the legislature. If the President and the FISC are having trouble locating this sometimes-elusive branch of government, they’re in the fancy building with the dome near the Supreme Court. Big building, can’t miss it.

Anyway, maybe I just misunderstood what President Obama said, in which case I will [...]

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Thanks to Tim Sandefur, And A Brief Comment

I very much appreciate Tim Sandefur’s careful response to my question about his view of the Constitution. If I understand Tim’s view, though, it’s actually not about the U.S. Constitution in particular. Instead, it’s a theory of all governments throughout human history. In these posts, he happens to be advocating his approach for the U.S. Constitution today. But if I understand him correctly, he would be advocating the same classical liberal interpretation if he were interpreting the constitution of the People’s Republic of China, the constitution of Vichy France in World War II, or tribal councils set up by hunter-gatherers in the prehistoric era. Granted, Tim argues that there are aspects of the U.S. Constitution that (in his view) explicitly adopt his classical liberal approach, so part of the argument is specific to the U.S. Constitution. But I gather that the underlying classical liberal theory of how constitutions should be interpreted is actually about all governments in all times in all countries, not just the U.S. Constitution today. Or at least that’s my understanding: I hope Tim (or commenters) will correct me if I’m wrong. [...]

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A Question for Tim Sandefur

Reading Tim Sandefur’s first guest post, I have a quick clarifying question. Let’s say that the public disagrees with Tim’s view, and that to make its point, a constitutional amendment pursuant to Article V is passed that explicitly approves the existing status quo of judicial interpretation and explicitly rejects the Declaration of Independence as a guide to interpreting the Constitution.  In Tim’s terms, the Amendment expressly adopts the wolf view and rejects the sheep view.  Here’s my question: If that happened, how would Tim interpret the Constitution then? Would his view be that the Amendment should be recognized and that his book’s view of the Constitution will have been rendered obsolete? Or would he say the new constitutional amendment is illegitimate and must be ignored, as it is inconsistent with natural rights?

I ask that question because I think Tim’s views could reflect one of two positions. The first position is that the Constitution enacts classical liberalism because it just so happens that the Framers were classical liberals, and their policy views were enshrined in the Constitution they enacted unless and until it is properly changed. On that view, the people ultimately get to decide what the Constitution means because they can amend the Constitution however they want pursuant to Article V (as long as they don’t interfere with equal suffrage in the Senate). The second position is that the Constitution enacts classical liberalism because classical liberalism it is the only correct system: It is the only system that that correctly understands the nature and meaning of rights. On that view, the people are powerless to change the Constitution in this way because they have no power to alter the correctness of classical liberalism.

I hope Tim won’t mind me interfering with his guest-blogging by asking this question, but [...]

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Insider Trading Trial Reveals Case of Harvard Law Student Who Altered His Transcript for Clerkship Applications

The insider trading trial of Mathew Martoma has revealed an interesting episode of his earlier life thanks to a motion under Rule 404(b), and specifically the time he was kicked out of Harvard Law School for falsifying his transcript when he applied for appellate clerkships. Martoma (then named Mathew Thomas) altered his law school transcript to have an almost straight A average before sending out clerkship applications. The altered grades would have made him among the top handful of students in the class.

On the basis of the transcript, Martoma interviewed with Judges Sentelle, Ginsburg, and Randolph on the DC Circuit. However, a law clerk in one judge’s chambers spotted the altered transcript and contacted Harvard Law’s registrar. (My recollection is that HLS transcripts in those days were completed on typewriters, so an HLS grad-turned-law-clerk familiar with HLS transcripts — and tipped off by grades so very high — could probably spot the forgery.) Caught with the altered transcript, Martoma then tried to pass the alteration off as a joke. Shortly thereafter, when one of the DC Circuit judges called to offer him a clerkship, he didn’t answer the call and sent out letters withdrawing his application. Appropriately, the Administrative Board recommended that Martoma be kicked out of school — and he was.

One more interesting detail. While a law student, Martoma had co-founded a student group, the Harvard Law School Society of Law and Ethics. Figures. [...]

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Are Thermal Imaging Devices in General Public Use Yet? (2014 Edition)

Four years ago, I had a long post on whether thermal imaging devices are in general public use, which, according to dicta in Kyllo v. United States, might enable the police to use them on a home without triggering a Fourth Amendment search. At the time, single-point infra-red temperature sensors started at about $50, and the full-camera thermal imaging devices started around $2,000.

In light of that post, I thought I would flag the introduction of the Flir One, a full-camera thermal imaging device that slips onto an iPhone 5 or 5s and will sell for $350.

Meanwhile, single-point temperature sensors are now available for only $17.99.

I’ll re-ask my questions from 2010: Can the police use these devices now without a warrant? Are either the single-point or full-camera infrared imaging devices now in “general public use”? And if they’re not in general public use now, when will they be?

Thanks to reader Brady B for the link. [...]

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“A Conspiracy Against Obamacare” Event Tomorrow to be On C-Span’s Book TV

Tomorrow from noon to 1pm, the Heritage Foundation in Washington, DC, is hosting a panel about the VC’s own book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case. The one and only John Malcolm will moderate, and the participants will be Randy, Ilya, editor Trevor Burrus, and me. For those who can’t attend in person, I think you can watch the event live at the Heritage website. It will also be broadcast on C-SPAN at various times (and available online) via C-SPAN’s weekend Book TV series. [...]

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En Banc Ninth Circuit Invalidates Hotel Inspection Regulation

Regular readers may recall my blog post last year on the panel decision in Patel v. City of Los Angeles, involving a facial challenge to a Los Angeles regulation requiring that LA hotels shall make hotel guest records “available . . . for inspection” by the LAPD. The 2-1 panel decision ruled that a facial challenge couldn’t succeed in these circumstances. On December 24th, the en banc court issued a new decision available here, which concluded by a 7-4 vote that a facial challenge is appropriate and that the regulation violates the Fourth Amendment rights of hotels.

The Patel case is more about a technical issue of facial vs. applied challenges than Fourth Amendment law specifically; the primary issue on which the judges disagreed was whether a facial challenge was proper. Still, for the procedure nerds out there, I figured I would offer some thoughts. [SEE UPDATE]

The challenged regulation tells all L.A. hotels that they need to collect registration information about customers with the following instructions, violations of which are a misdemeanor:

The record shall be kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent to that area. The record shall be maintained at that location on the hotel premises for a period of 90 days from and after the date of the last entry in the record and shall be made available to any officer of the Los Angeles Police Department for inspection. Whenever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.

In this case, hotel owners have sued the City of LA seeking to enjoin the enforcement of the phrase “shall be made available to any officer of the Los Angeles [...]

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Will the Supreme Court Review the NSA’s Telephony Metadata Program?

In the wake of the dueling opinions by Judges Leon and Pauley about the NSA’s Section 215 telephony metadata program, a lot of commentators are assuming that the issue is heading to the Supreme Court. If a federal circuit court rules that the program is unconstitutional and survives en banc review, then I agree that Supreme Court review is likely.  Invalidating a major federal program will usually get the Justices’ attention. But let’s assume that the Second Circuit upholds Judge Pauley’s decision, and the DC Circuit reverses Judge Leon. Will the Supreme Court intervene if the Second and DC Circuits uphold the program?

We don’t know, of course, as it all depends on what might get four votes to grant cert. It’s a discretionary call, so it’s hard to predict. At the same time, I think a lot of commentators overestimate the chances that the Supreme Court would step in. It’s certainly possible, but it’s not at all  a sure thing. Here are five reasons why the Supreme Court might not review the Section 215 cases:

1) Section 215 sunsets on June 1, 2015. On that date, the statutory authority for the bulk telephony program will end. If the White House wants to continue the program beyond that date, it will have to convince Congress to expressly approve bulk collection. Alternatively, Congress might not be willing to go along, and will only be willing to approve a modified program or no program at all. Either way, the sunsetting of Section 215 will trigger a major Congressional debate on the desirability of bulk collection that will either reject it or accept it in modified form.

A cert petition in the Section 215 cases from Judges Pauley and/or Leon would reach the Supreme Court as this debate was either ongoing or recently [...]

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A First Look at Navarette v. California: Are Stops Governed by the Rules of Terry or By Case-by-Case Reasonableness?

On January 21st, the Supreme Court will hear argument in Navarette v. California, a Fourth Amendment case on whether an officer who receives an anonymous tip regarding drunk driving must corroborate the dangerous driving before stopping the car. Reading through the briefing in the case, I was struck by the surprising argument advanced by the state of California and (to some extent) by the United States. In this post I’ll explain the argument, and why it makes Navarette a much more interesting case than it first seemed.

When the Court granted cert, I thought that the issue in Navarette was just about the standard of “reasonable suspicion,” the standard required to make a Terry stop. But the California brief takes a different approach. Instead of just asking when “reasonable suspicion” exists, California asks the Court engage in interest balancing on a case-by-case basis. In California’s view, the reasonableness of a stop isn’t based on whether Terry‘s reasonable suspicion standard has been satisfied in the abstract. Instead, California sees Terry as merely one application of reasonableness balancing, and it asks the Court to engage in interest balancing afresh by considering the nature of the crime to be investigated when assessing whether the stop was reasonable. The basic idea is that drunk driving is so serious a problem that stopping a car for suspected drunk driving requires less cause than would a stop for a less serious offense. The more serious the crime, the less suspicion is needed.

California’s approach to the Fourth Amendment is revolutionary. I have always understood the Terry standard to be transsubstantive, in the words of Bill Stuntz. The same standard or reasonable suspicion applies across all crimes, just as it does with probable cause. Switching to a case-by-case approach which factors in the seriousness [...]

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Justice Blackmun’s File on Smith v. Maryland

Smith v. Maryland and the third-party doctrine have been much in the news recently thanks to the dueling Leon/Pauley NSA opinions. In light of that, law prof Kyle Graham has posted Smith-related materials from Justice Blackmun’s papers at the Library of Congress. You can read them here. The documents include conference notes, the cert pool memo, the law clerk’s bench memo, and some internal memoranda about the opinion.

Blackmun’s law clerk on the case — the clerk who actually wrote the opinion, given how Justice Blackmun apparently worked — was Albert G. Lauber, now a tax court judge. Lauber’s bench memo to Blackmun is fascinating. It not only tracks the majority opinion, as you might expect, but in some ways it offers a clearer explanation and better justification of the reasoning of Smith than did the opinion itself. Really interesting stuff. (The cert pool memo writer in the case was a Rehnquist clerk, the late Judge Mark Kravitz.)

As I have written before, I think Smith v. Maryland was correctly decided. You can read my argument here and here in law review article form. If you want the short version, check out this 2012 debate between Greg Nojeim and me. [...]

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