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 […]
Archive | Fourth Amendment
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 […]
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 […]
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 […]
It’s An Exciting Time for Fourth Amendment Geeks
Lawprof Miriam Baer reflects on that subject here. And Miriam doesn’t get into the remedies side of the picture: The fact that all this uncertainty is happening right when the remedies for Fourth Amendment violations are also very much in flux makes it all the more interesting.
Senders’ Fourth Amendment Rights in E-mails Seized from the E-mail Accounts of Recipients
A recent case, United States v. Young (D. Utah, December 17, 2013) (Campbell, J.), touches on a novel, interesting, and quite important question of Fourth Amendment law: Assuming that e-mail account-holders generally have Fourth Amendment rights in the contents of their e-mails, as courts have so far held, when does a person’s Fourth Amendment rights […]
Another Problem With Judge Leon’s NSA Opinion: Absolute vs. Relative Measurements and Fourth Amendment Reasonableness
The more I re-read Judge Leon’s opinion in Klayman v. Obama, the more I am struck by how many parts of the opinion strike me as strange, off-key, or just wrong. This post will focus on an aspect of the opinion that has been ignored so far: Fourth Amendment reasonableness. In particular, I hope to […]
Can the DC Circuit Use the Mosaic Theory to Invalidate the NSA Telephony Metadata Program?
By Orin Kerr on December 17, 2013 3:05 am in Fourth Amendment, Mosaic Theory of the Fourth Amendment, NSA
Here’s a thought experiment. Let’s assume that when DOJ appeals Judge Leon’s opinion in Klayman v. Obama, the DC Circuit does not reverse on the procedural issues. Instead, on appeal the DC Circuit takes precedent seriously and tries to square the NSA surveillance program with United States v. Maynard and its mosaic theory on the […]
Preliminary Thoughts on Judge Leon’s Opinion
In this post, I’ll offer a few thoughts on Judge Leon’s remarkable opinion on NSA surveillance. Unfortunately, my time was limited, so I have to offer a more brief analysis than I would normally like to do. Here are a few thoughts for now, with more to come later if time permits. (1) Distinguishing Smith […]
What Happened to the Cell Phone Search Petitions?
I mentioned a while ago that the two cert petitions on cell phone searches incident-to-arrest were calendared for December 6. They have been delayed, however, as the Court asked for the lower court record in Riley, the smart phone case. We don’t know what the Justices expect to get from the record, but it’s at […]
Voluntariness and the Law/Fact Distinction
This is a follow-up to this morning’s post on United States v. Robertson, the Fourth Circuit’s decision yesterday on the voluntariness of a consent search under the Fourth Amendment. In the comment threads, a lot of thoughtful comments raised the issue of whether voluntariness is really just a question of fact reviewed for clear error. […]
United States v. Robertson and the Voluntariness of Consent to a Fourth Amendment Search
Yesterday the Fourth Circuit handed down an interesting Fourth Amendment decision in United States v. Robertson, involving a consent search at a bus shelter. It’s a rare published decision from the Fourth Circuit, with a divided vote, and my tentative view is that the dissent is correct. As I understand the facts, several officers converged […]
Randolph, Fernandez, and the Puzzle of Limiting Third-Party Consent
In Wednesday’s oral argument in Fernandez v. California, no party asked the Supreme Court to overturn Georgia v. Randolph. But the more I think about Fernandez, the more I think the issues in the case just point to the underlying problem with Randolph. In this post, I want to say a bit about why. The […]
Oral Argument in Fernandez v. California: An Initial Reaction
I was at the Supreme Court this morning for the oral argument in Fernandez v. California, the Fourth Amendment case on third-party consent that I blogged about last week. I have just a few minutes now and more time later, so I will offer a few quick thoughts here and hope to offer more detailed […]
Rory Little on Fernandez v. California
UC Hastings professor Rory Little has written a response to my post on Fernandez v. California, the third-party consent case that the Supreme Court will be hearing next week. Professor Little asked if I would be interested in posting it, and I am happy to do so. I’ve included a few thoughts in reply at […]