Thread by @OrinKerr

En Banc CA1 divides 3-3 on whether long-term pole camera surveillance of a house is a 4A search.

3 Js: Yes, under equilibrium-adjustment, as technology has upset the balance and we need to restore it.

3 Js: No, it's just one place, and all visible.

media.ca1.uscourts.gov/pdf.opinions/1… #N

The three judges who thought there was a search also added a good-faith holding, though (even though the issue was waived and not argued), so that the defendant ultimately loses 6-0 instead of winning by a 3-3 tie.

It took well over a year for the opinions to come down, and Judge Barron's opinion saying that a search occurred has something like 80 pages of 4th Amendment analysis, so the obvious question is, where did he draw the line? If these facts are a search, what else is/isn't?

On a quick skim, at least, that is left unclear. These particular facts are deemed a search, but what other facts should be deemed searches has to be left to future cases.

Here's Judge Barron at page 87(!) on this.

If I understand this correctly, the upshot of several years of 4A litigation, through the en banc 1st Circuit, is that the full court can't decide if a search occurred, and the judges who say a search occurred have no answer to what *other* facts would be a search.

All the pole camera cases are just fodder for a future Supreme Court cases on this, but I admit I was hoping for more clarity about where the line is. (But then that's the mosaic theory for you: A neat idea in theory, with the slight flaw that it can't be implemented by judges.)

In terms of what happens from here, Moore & Moore-Bush could petition for cert on both issues, but there's all that much to say about the GFE: It clearly applies if it wasn't waived, so the only issue is whether there's a waiver of GFE here.

The modern Court usually (or at least often) decides Fourth Amendment cases as pure advisory opinions, in which it's clear the outcome won't affect the parties b/c of the GFE. So it would be in keeping with that, if SCOTUS wants to decide the issue, to only grant on the 4A issue.

If SCOTUS finds a search in the facts, then it could remand to the CA1 for a ruling on the GFE, where the waiver issue could be litigated. Will be interesting to see what happens, stay tuned as always.