Fascinating 4th Am case now pending before the Wisc SCT, State v. Burch.
Thread.
In 2016, D allowed Police Dept 1 to download contents of his phone in a crim case. Govt copied entire phone, kept copy. Later, D is a suspect in unrelated homicide investigated by Police Dept 2.
Police Dept 2 got the copy still held by Police Dept 1 and searched it for evidence of the homicide w/o a warrant. The search showed that D had a gmail account, and the police then obtained D's gmail account records. They showed his phone was at the murder location and time.
Merits 4A question is mostly about the scope of consent: Do you interpret the consent given at the 1st stage to permit the holding on to the data and giving it to diff police dept for a different crime?
Supreme Court rules 5-3 in Torres v. Madrid that “application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” SupremeCourt.gov/opinions/20pdf…#n
An expected result, although a closer vote than I expected, based on the argument. More tweet commentary soon.
A few quick thoughts now. First, this seems like a really narrow ruling. It's always been clear that "application of physical force to the body of a person with intent to restrain" is a seizure when the police succeed in stopping the person, temporarily, and that's most cases.
Here's thread on today's oral argument in Caniglia v. Strom, on the community caretaking exception. Thread will be thoughts on the argument, not an overview of the case, which others have done.
First up, Roberts questioning counsel for petitioner, the plaintiff in the civil case. Roberts starts with what I think is plaintiff's hardest hypo: what about wellness checks on seniors who haven't been heard from? Not a surprising question.
If I understood P's argument, their position is that you can't search to do a wellness check, but eventually, after a few days, there will be probable cause to get a warrant to search for a missing person.
I don't have a clear view of how Carp should apply to pole cameras -- hard Q, I think -- but I thought DOJ's arg should have been simpler than it was. Best arg for DOJ, I think, is "Carpenter is about an REP in the whole of a person's movements, and a pole camera doesn't move."
From the govt's perspective, that's your limiting principle in a pole camera case, I think: Carpenter is only about the whole of movements, and it doesn't apply to a camera fixed on one place. (May or may not persuade a particular court, but I think it's the govt's best arg.)
The issue in the case is the extent of the community caretaking exception of Cady. But there are a bunch of possible exceptions to the warrant requirement possibly in play, and the case seems just as much about which exceptions should fit which hypos than whether one does.
For any given set of Justices, there will be an overall amount of warrant-exception-ness they'll see as reasonable. I assume that amount is largely fixed given the Court's membership. If that's right, the issue w/the scope of any one exception is as much scope of the others.
This is from a pending bill creating a new federal felony. Any thoughts on what it means to have "reckless disregard for . . . the reasonable expectation of [an] individual that [a] depiction [of that person] would remain private"? amendments-rules.house.gov/amendments/SPE…
Is that supposed to mean that the individual (a) has that belief, (b) the individual's belief is reasonable, and (c) the defendant is reckless w/r/t the fact that the belief exists?
Similarly, do you interpret "reckless disregard for . . the lack of consent of the individual to the distribution" as requiring (a) lack of consent, and (b) a reckless mens rea w/r/t/ to the fact of the lack of consent?
My sense is that it's not uncommon, at U.S. universities, for faculty salaries to be determined less by a professor's perceived excellence or prominence than on whether a big raise was once considered needed to keep that prof when a competitor school came along.
The two will be correlated, in that on average you would expect competitors to try to hire a school's best profs. But there's a lot of noise in that signal, ranging from profs who turn down outside inquiries to those who may pursue them mostly to get retention raises.