Thread by @OrinKerr

When the govt obtains a warrant to track two suspects traveling in a car together using the GPS on one's phone, the other lacks standing to challenge the tracking. CA5, per Oldham.

Plausible result, but I have mixed views on the analysis. Thread:
ca5.uscourts.gov/opinions/pub/1… #N

The Court approaches the standing question by looking first at how the warrant was phrased. The warrant that the location of the phone was the "place to be searched," so that mostly governs. It was not D's phone, so he had no standing in that "place."

But I'm not sure how the drafting of the warrant can be relevant. 4A standing is about whether a person has rights to challenge a search that occurred, not how the govt drafted a warrant to justify the search that occurred.

In the case of GPS tracking, the govt doesn't know how to draft GPS warrants. They're new, and the govt is waiting for courts to tell them what the "place" is for GPS warrants. Given that, it seems odd to hinge standing on to a drafting choice that may or may not be right.

Beyond that, what standing means for tracking warrants would seem to hinge on your theory of what kind of search is occurring. And this is underdeveloped for GPS searches. For example, you might have a diff view of standing if you buy the mosaic theory: repository.law.umich.edu/cgi/viewconten…

I think the court's result was correct under the traditional approach to standing, which focuses on property: If the search was of the conspirator's property, the defendant here has no standing to challenge that search.

But with the underlying theory of searches newly unclear after Carpenter embraced the Jones concurrences, what standing means seems more up for grabs than it used to be.

Oh, and one more thought:

I'm curious what readers make of Part II of the opinion, which offers a historical perspective on common law search practices starting before the 15th century, ultimately culminating in the enactment of the 4th Amendment.

I confess that section seemed odd to me. First, the history doesn't really seem to illuminate the point that standing exists. Standing is clear from the text, I think, and it has been recognized from the beginning in precedents. But why go back 1,000 years?

Perhaps it's just interesting history for those interested, and not intended to be relevant to the case. Or maybe it's a sort of originalist signaling practice, something of interest to some recent Trump judges, from what I hear? Not sure. Curious what others think.