1st Circuit panel overturns 1989 circuit precedent that had held a protective sweep requires evidence that the officers were actually motivated by public safety. Intervening SCT caselaw makes clear 4A is objective, not subjective.

Thread.

media.ca1.uscourts.gov/pdf.opinions/2… #N Image
Although 3-judge panels normally can't overturn 3-judge panel precedents, CA1 caselaw allows it when intervening relevant but not controlling authority suggests the old panel would have come out differently. Image
On the merits, I disagree with the panel's view that modern 4A rules are generally objective w/r/t police conduct. As I explained in this recent article, there are a lot of subjective rules, many of them very recent. texaslawreview.org/wp-content/upl… Image
With that said, it seems right to me that in a protective sweep case (here, involving a car), the question should be objective, not subjective; the 1989 panel reasoning that having reasonable suspicion requires actual suspicion seems just wrong.

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More from @OrinKerr

9 Dec
Super-interesting opinion from Mag. J. Harvey in the DDC: Can a judge deny a warrant application because the judge thinks the warrant will be executed in an unreasonable way? And if so, how can the judge know that ex ante?

Thread.

Op here: drive.google.com/file/d/1pVvonQ…
In the case, the government has seized 26 cell phones (or has data extractions from their phones) from people in illegal gun cases. The govt wants to search them all for evidence of a common gun trafficking source.
Judge Harvey concludes that there was probable cause that evidence will be found on each phone, and the evidence to be searched is described with particularity as to each phone. (See Slip op. p3)
Read 20 tweets
30 Nov
Judge Musmanno really doesn't like the Supreme Court's "voluntary encounter" caselaw. (An alternative would be to say it's a compelled encounter but is allowed with no cause. But from a civil liberties perspective, isn't that worse?) pacourts.us/assets/opinion…
As I see it, the problem goes like this. The Justices think the 4th Amendment should let the police walk up to people and ask them questions without cause. You can get there two ways: (a) Either it's not a seizure, or (b) it's a seizure that is allowed without cause.
Which is better, (a) or (b)? The Justices went with (a), which lets them maintain the basic rule that seizures have to be justified. They then needed a test to allow (a) without gutting 4th Amendment protection for clearly compelled stops, like the officer who orders the stop.
Read 5 tweets
30 Nov
Among the many things in life that I don’t get, one of them is TikTok.
I’ve spent some time trying it, but I don’t get what is supposed to be appealing about it.

Oh, and get off my lawn.
Maybe I’ll start a channel to explain the Stored Communications Act to 14 year olds. A new song about the ECS/RCS distinction could really take off.
Read 4 tweets
23 Nov
Listening to the oral argument in Katz v. US (1967), am I right that the notion of reasonable expectations of privacy is voiced primarily by Justice Fortas?

A thread.

oyez.org/cases/1967/35
As I follow the argument, Katz's counsel argued for a test that asked whether an objective observer would conclude that a person intended the communication to be confidential.
According to Katz's lawyer, Harvey Schneider, the issue should be an objective inquiry into likely subjective intent.
Read 9 tweets
3 Nov
Oral argument video in the Florida Supreme Court in People v Garcia, on compelled decryption and the 5th Amendment, here starting at 1:15. A few thought below…

facebook.com/floridasupreme…
This is a compelled password case, not a compelled entry case, but the state has made clear that either is fine: If it can't get compelled disclosure but *can* get compelled entry, the state says, it will just do that next and it's fine with them.
That's potentially important because this case might be the one that goes up to SCOTUS. There are splits on both compelled entry and compelled disclosure, a case that considered both issues together (or at least made clear both issues were practically in play) would be appealing.
Read 8 tweets
2 Nov
Two published 5th Circuit QI cases, two days apart, offer rather different perspectives on whether/when a factually similar precedent is needed to deny QI. (Judge Ho is right, I think, it's not; Judge Jones is wrong.)

ca5.uscourts.gov/opinions/pub/2…

ca5.uscourts.gov/opinions/pub/2… ImageImage
To be clear, it's possible to reconcile the two cases on their facts. But it seems to me that their overall approach to QI is quite different.
The basic dispute is a question that @JCSchwartzProf and I were discussing recently: If a violation is clear based on the rules announced in prior cases, even if the rules were announced in factually dissimilar cases, does QI apply?
Read 6 tweets

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