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Orin Kerr Profile picture
@OrinKerr
Sep 29, 2020 • 4 tweets • 2 min read • Read on X
INTERESTING CASE: Police can detain a person on the scene when they execute a warrant. But can they call up a suspect and make up a fake story about needing him to be home to get him to be there so he can be detained? CA9 rules 2-1 that they cannot.
cdn.ca9.uscourts.gov/datastore/opin… #N Image
I'm not sure what I think of this. It's true that a ruse can expand what the government can search and seize, manipulating the rule. OTOH, don't Ky v. King and Navarette v. CA suggest that police steps that manipulate rules are okay as long as they don't themselves violate 4A?
The majority opinion is weirdly free form in some ways, in that it conducts a balancing test over the ruse: It concludes that the decision to do the ruse fails the balancing test. But the 4th Amendment balancing test is only for searches and seizures, and a ruse is neither.
Anyway, interesting case.

Oh, and if you have views of it, arguments based on actual 4th Amendment law are particularly welcome. :)

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More from @OrinKerr

Orin Kerr Profile picture
Dec 16
NOTEWORTHY: Pennsylvania Supreme Court rules that there are no 4th Amendment rights in your Google search terms. When you search on Google, you tell them your search terms; the government can get those queries without a warrant. The third-party doctrine applies. Image
You know that you're being tracked, the Court says, and your decision to use the Internet (or at least search engines) anyway makes your actions voluntary. Image
The Terms of Service at Google make this clear, according to the Court: Under Google's TOS, you're on notice that you don't have privacy. Under the TOS, you can't claim privacy. Carpenter doesn't apply. Image
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Read 8 tweets
Orin Kerr Profile picture
Dec 1
This isn't my area, so maybe this is wrong, but it does seem to me that the unitary executive theory of control over prosecutions and the executive pardon power are something of an odd combination.

Quick thread.
As I understand the history, at common law, prosecutions ordinarily were brought by private parties. A private victim would prosecute the criminal, sort of like a tort action except with the possibility of being hung if the defendant is convicted.
In that world, an executive pardon power made a lot of sense. Private parties would seek punishments when justice didn't require it, so someone was needed to be a check on the system of private prosecution.
Read 7 tweets
Orin Kerr Profile picture
Sep 14
Debates about when originalism first became a theory of constitutional interpretation are interesting to me in part because, in Fourth Amendment law, originalism has pretty much *always* been considered a critical method—if not the main method—of interpretation.
Take the first main Supreme Court case on Fourth Amendment law, Boyd v. United States (1886). It's all about how to apply the principles of the 18th century cases, like Entick v. Carrington (1765), that inspired the 4A's enactment. tile.loc.gov/storage-servic…Image
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Or take Carroll v. United States (1925), introducing the automobile exception. It's all very explicitly originalist: "The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted"
tile.loc.gov/storage-servic…Image
Read 13 tweets
Orin Kerr Profile picture
May 29
Several notable 4th Amendment rulings in this 5th Circuit opinion today. Most importantly: People have a reasonable expectation of privacy in stored online contents—here, the contents of a Dropbox account. (Per Oldham, J., w/Richman & Ramirez)

🧵

#N storage.courtlistener.com/pdf/2025/05/28…Image
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Plaintiffs, Heidi Group, is a pro-life group that briefly had a contract with the Texas state government. A former employee named Morgan went to state investigators and said she had access to Heidi Group's documents b/c she was still given access to their Dropbox account.
A state investigator, Dacus, encourages Morgan to look through Heidi Group's files for evidence what Heidi Group did when it was a state contractor. Morgan does. Heidi Group realizes someone is accessing its files, eventually sues state officials for violating its 4A rights.
Read 13 tweets
Orin Kerr Profile picture
Apr 22
The lawyers representing Harvard are (in addition to being excellent lawyers) notable for their conservative connections.

Quick thread. Image
First off, the conservative/GOP bona fides of Bill Burck and Robert Hur have been covered elsewhere.
telegraph.co.uk/us/news/2025/0…
But as @WilliamBaude notes, Lehotsky Keller Cohn is on the brief, with name partners Steve Lehotsky (Scalia clerk, former Bush-era OLC); Scott Keller (former Texas SG, Ted Cruz Chief of Staff, Kennedy clerk), and Jonathan Cohn (Thomas clerk).
Read 6 tweets
Orin Kerr Profile picture
Mar 26
DC Circuit denies the motion for an emergency stay in the Boasberg case 2-1, with a brief order and 92 pages of concurrences (one by Henderson, one by Millett) and a dissent (Walker).

I'm going to scan through the opinions and select out key parts. 🧵

media.cadc.uscourts.gov/orders/docs/20…Image
I'm going to stick mostly with the merits issues.

1st up Henderson: The idea that the President's call is unreviewable is wrong. Image
"Questions of interpretation and constitutionality—the heartland of the judicial ken—are subject to judicial review." Image
Read 15 tweets

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