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Orin Kerr

10 Sep, 10 tweets, 4 min read

Important and (I think) surprising decision from Mass. SJC: Reviewing body-worn camera footage taken inside suspect's house is a separate 4th Amend search, and it's unlawful to review the footage later for a different reason w/o a warrant.

Thread.
mass.gov/files/document… #N

In the case, officers were asked to enter a home in response to a domestic disturbance by someone who lived there. An officer was wearing a body-worn camera that recorded what the officer saw. The SJC holds that isn't an additional search: The camera saw what the officer saw.

If I follow the facts correctly, the body-worn camera footage was then made available to other officers, including an officer who was already conducting a gang-related investigation into someone at the house. The footage showed the suspected gang member holding a gun.

The Mass SJC holds that accessing the footage for a different reason than the video was taken is a second search. That should to be so, the court says, to limit the power of video cameras: Technology shouldn't be allowed to expand government power that much. It's Orwellian.

The basic methodology here is what I have called equilibrium-adjustment: As technology expands government power, courts (usually the U.S. Supreme Court, but here a state court) sometimes change the 4A rule to restore the prior level of govt power. harvardlawreview.org/wp-content/upl…

But this strikes me as a really aggressive form of equilbrium-adjustment: The technology here isn't expanding govt power so much, as the camera only shows what the officer saw, and only for a brief time, during a valid consent search.

And there's a broader puzzle to the reasoning: It wasn't a search to record the video, as the video only captures what the officer saw, but then the police can't look at the video, as it's Orwellian to let the police see . . . what the officer saw? Hmm.

Doctrinally, also not sure how the SJC could square its decision with Illinois v. Andreas, 463 U.S. 765 (1983) -- held, after a place or thing has been searched, can reseal and open later, no second search.
scholar.google.com/scholar_case?c…

Looking ahead, will be interesting to see where this goes. If the 4th Amendment now applies to things that were already searched for which there was no REP, but are then stored, we're in for a wild ride. Stay tuned. /end

https://twitter.com/OrinKerr/status/1099075952221417477

Oh, and this is an interesting contrasting case from two years ago, NY instead of Mass.

https://twitter.com/OrinKerr/status/1099075952221417477

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Orin Kerr

@OrinKerr

9 Sep

@BrianLeiter

This is a niche tweet for lawprofs, but a dynamic that seems to emerge from the Sisk data (via @BrianLeiter) is that citations in tech-related areas of law come from a broader range of schools in terms of US News ranking.

Thread for those interested.

In most of the subject areas, the most-cited tend to be at US News "top" schools.

When it comes to tech-related scholars, though, the most-cited are at a significantly wider range of schools. You can see perhaps most directly from the law and tech numbers:

@daniellecitron

(And note that #2, @daniellecitron, arrived at UVA only in 2021, after the 2016-20 window closed.).

An even better example is @ProfFerguson, who often writes in tech-related crim subjects, who recently arrived at Am U after several years at UDC and is #11 on the crim law list.

Read 5 tweets

Orin Kerr

@OrinKerr

8 Sep

SD Indiana: University tracking movements of students using their ID cards, assuming it's a search, is not "unreasonable" under a balancing approach to reasonableness. I find this op a bit puzzling, quick thread. ecf.insd.uscourts.gov/cgi-bin/show_p… #N

The court seems to think that reasonableness in 4A law always requires a balance, and does a balance here. But that's not how it works: Reasonableness might require a warrant, or just notice, or something else, depending on the circumstances. We need to know, why balancing?

Also, some of the reasonableness balancing seemed to reflect Carpenter-like reasoning that was more about what amounts to a search under Carpenter and the CA7's ruling in Hammond. Those boxes don't readily mix, I think.

Read 4 tweets

Orin Kerr

@OrinKerr

8 Sep

Missouri SCT: Where warrant for cell phone authorized search of suspect's house for his phone, agents could not seize phone when the suspect was at the station house; warrant to search phone doesn't allow later search through it. (Odd --thread below) courts.mo.gov/file.jsp?id=18… #N

This result seems odd to me. First some context. Computer searches tend to have two stages: the physical search stage when the device is found and seized, and then the electronic search stage when the device is searched. papers.ssrn.com/sol3/papers.cf…

As I explained in the article linked to above, this creates some puzzles for how to draft computer warrants. Should the warrant's "place to be searched" describe the place where the physical search stage will occur, or the electronic search stage?

Read 11 tweets

Orin Kerr

@OrinKerr

28 Jul

Lawyers: What advice would you give an entering 1L about how to think about the law school experience?

My usual advice, FWIW, goes something like this: The 1L year immerses you in a strange world, and it's natural to feel lost at first. Give yourself at least a month or so just to acclimate, and keep an open mind about where it's all going. /1

Realize that everyone has their own way to deal with the pressures of law school, and that the people who seem to have it all figured out (and who want you to know it) likely have no idea what they're doing. /2

Read 6 tweets

Orin Kerr

@OrinKerr

7 Jul

It's interesting that the Supreme Court in Torres v. Madrid opted for the "right to be secure" description of the 4th Amendment. As far as I can recall, that's a first for the Supreme Court.

Might be important. A thread.

supremecourt.gov/opinions/20pdf…

The idea that the 4A provides a "right to be secure" has been floating around 4A scholarship for the last 15 years. But as far as I know, the Supreme Court has never suggested it before. It has stuck to the constitutional text, which it seems to me is narrower.

I wrote a blog post on the "right to be secure" claim in 2017. At least in the scholarship, it it is used generally to argue for a broader application of the 4A. lawfareblog.com/fourth-amendme…

Read 8 tweets

Orin Kerr

@OrinKerr

6 Jul

It's common to object to the length of Supreme Court opinions. My own sense is that the typical length of majority opinions is about right. It's the separate opinions -- the concurrences and dissents -- that are often too long. Not always, of course, but often.

It's understandable how that plays out. When the dissent/concurrence is being written, it is a competing view of the law. But after it is decided -- that is, when it's public -- it's a view that isn't binding law, and so is a lot less important to folks than the majority opinion.

Dissents in particular can have a venting quality, where the author needs to say everything on the author’s mind and doesn’t have a majority to worry about.

Read 4 tweets

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