In dicta, magistrate judge concludes that govt use of a cell site simulator is a search requiring a warrant because it might be used to locate a phone in a place where there's an REP. (DDC, 3/25/21) (Faruqui, M.J)
First, why it's dicta: The issue arose when the government applied for a warrant, so no one was trying to conduct surveillance without a warrant. (Also, I don't tend to think Article III allows a merits ruling like this now, as how the 4A applies is not yet a ripe dispute.)
On the merits, the court's conclusion that a search occurs if a search might occur -- if a tool might be used to conduct a search -- seems wrong in light of United States v. Karo, which limited but did not overturn Knotts. scholar.google.com/scholar_case?c…
I recognize the passage from Kyllo that the judge relies on, reprinted below. But I don't see it as upsetting the coexistence of Knotts (no search if device doesn't reveal info inside home) and Karo (search requiring warrant if it does reveal info inside home).
As a practical matter this won't make much of a difference, though. As Karo noted, if the govt is going to need a warrant if the device might reveal info from in a home, they'll get a warrant anyway just in case because they won't know in advance.
Note that this result matches the result of the 1st 4A ruling on cell-site simulators, Andrews from 2016, but on a somewhat different rationale. washingtonpost.com/news/volokh-co…
Part of what makes this different rationale interesting is Footnote 4 of the opinion, in which Judge Faruqui suggests that a magistrate judge's signing a warrant application is an implicit ruling that a warrant is indeed required.
Respectfully, I don't think that's right. Rule 41 is mandatory, not permissive: A magistrate judge has no power to deny a warrant application on the ground no warrant is needed. Cf. NY Telephone, ruling a Rule 41 warrant can be used for a pen register. scholar.google.com/scholar_case?c…
There's lots of other really interesting stuff in the opinion for fellow surveillance law nerds, including that cell-site simulators are not tracking warrants and about the permitted period of delayed notice (holding that the 365 day delay requested was too long). V. interesting.
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How does the 4th Amendment apply to the "U.S. Private Vaults" case, busting the Beverly Hills store where people could anonymously store guns and drugs (and anything else)?
First, the alleged facts. The store hosted safe deposit boxes at a strip mall. Their selling point was total privacy: You pay big $$$, and you can store anything there and no one will know. According to prosecutors, the business was trying to entice those engaged in crimes.
The store didn't want to know who its customers were. They just wanted the very large payments in exchange for privacy. I gather this is their website, and Youtube plug:
There's a lot that can be said about the CA6's Meriwether opinion, most of it way outside my expertise. But just one small thought about the para below. If the prof thinks that taking attendance is deeply wrong, wouldn't that make refusal ideological? opn.ca6.uscourts.gov/opinions.pdf/2…
Calling roll sends a message, that the school is in charge: A student's presence in class is critical, the school says, whether the student wants to be there or not. Many profs disagree w/this message, though. They think students should be allowed to attend or not as they wish.
If a professor thinks it is critical to learning that the environment be open, and not compelled, the professor may think it important to send the message that attendance is *not* required. They may not want to call roll for an ideological reason.
A bit about the federal law of enticement and so-called traveler cases, which may be of interest in light of the story below. nytimes.com/2021/03/30/us/…
Every state has age of consent laws, prohibiting sexual intercourse with a person under the age of consent. The age of consent varies by state, generally being 16, 17, or 18. See the chart here: aspe.hhs.gov/report/statuto…
Federal law makes certain interstate conduct done with intent to commit such crimes a federal crime. For example, 18 U.S.C. 2423 makes it a crime to transport a person under 18 in interstate commerce w/ intent to engage in an illegal sexual act. law.cornell.edu/uscode/text/18…
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.