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 […]
Archive | Mosaic Theory of the Fourth Amendment
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 […]
District Judges Divide on Long-Term Cell Phone Tracking Under the Fourth Amendment
By Orin Kerr on May 8, 2013 5:54 pm in Cell-Site Information, Fourth Amendment, Mosaic Theory of the Fourth Amendment
I haven’t blogged recently on judicial decisions considering the mosaic theory of the Fourth Amendment. As regular readers will recall, the “mosaic theory” is a term for the idea that long-term monitoring of a suspect can be a Fourth Amendment search even if short-term monitoring is not. Under this approach, which was suggested by the […]
Responding to the Massachusetts Supreme Judicial Court on Probable Cause and Standing to Challenge GPS Searches
By Orin Kerr on February 3, 2013 4:38 pm in Fourth Amendment, GPS Surveillance, Mosaic Theory of the Fourth Amendment
The Massachusetts Supreme Judicial Court has asked for amici help in two pending cases about the Fourth Amendment and GPS surveillance: In these cases involving co-defendants, the issue presented, among others, is whether an affidavit demonstrated sufficient probable cause in support of an application for a warrant secretly to attach a GPS device to a […]
Final Version of “The Mosaic Theory of the Fourth Amendment”
The Michigan Law Review has posted the final version of my latest article, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311 (2012), on its website. Here’s the abstract: In the Supreme Court’s recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a […]
Updated Version of The Mosaic Theory of the Fourth Amendment
I recently posted a substantially re-written version of my forthcoming article, The Mosaic Theory of the Fourth Amendment. The new version is much tighter; it says more about the purpose of the theory; and it takes a stronger view on whether it should be adopted. Here’s the new abstract: In the Supreme Court’s recent decision […]
Who Has Standing to Challenge Mosaic Searches? The Interesting Case of United States v. Luna–Santillanes
In my forthcoming article, The Mosaic Theory of the Fourth Amendment, I discuss why the mosaic theory of the Fourth Amendment raises puzzling questions about standing: Fourth Amendment rights are personal, and individuals can only invoke a remedy if their own rights were violated. The Fourth Amendment standing inquiry arises as an application of the […]
Seeking Feedback: What’s A Better Name Than “The Discrete-Steps Approach”?
I’ve been working on an updated draft of my forthcoming article on the mosaic theory of the Fourth Amendment, and I could use help from readers on a relatively simple labeling question. In the article, I’m trying to contrast two understandings of the Fourth Amendment. The first understanding is the traditional view that courts must […]
District Court Rules That Mosaic Search Triggers Good Faith Exception Even Absent Binding Precedent
In my forthcoming article, The Mosaic Theory of the Fourth Amendment, I explain that there are lots of ways in which courts might avoid applying the exclusionary rule if they conclude that the mosaic theory of the Fourth Amendment from the concurring opinions in United States v. Jones offers a viable theory of Fourth Amendment […]
New Draft Article, “The Mosaic Theory of the Fourth Amendment”
I have just posted a new draft article, The Mosaic Theory of the Fourth Amendment, which is forthcoming in the Michigan Law Review. Here’s the abstract: In the Supreme Court’s recent decision on GPS monitoring, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth […]
Magistrate Judge Rejects Mosaic Theory of Fourth Amendment For Cell-Site Information
I have posted the short opinion (dated March 23) from Magistrate Judge Collings of the District of Massachusetts here. It largely adopts the reasoning of United States v. Graham from the District of Maryland, which I blogged about here. In my view, Judge Collings was correct to issue the order without probable cause for a […]
More Cases on the Mosaic Theory and The Implications of Jones
The various opinions in United States v. Jones (aka the GPS case) raise tons of fascinating new questions for Fourth Amendment law. I explore some of those issues in a forthcoming article, The Mosaic Theory of the Fourth Amendment, which will appear in the Michigan Law Review and which I hope to post an early […]
Concurring Opinions in Jones Lead FBI To Turn Off 3,000 GPS Devices, Considered a “Sea Change” Within the Bureau
Earlier today, I sent off to law reviews a new draft article on the implications of the mosaic theory of the Fourth Amendment introduced in the GPS case, United States v. Jones — and specifically the majority opinion for the DC Circuit (under the name United States v. Maynard ) and the concurring opinions of […]