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.
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Nina Totenberg's story on the leak investigation suggests that clerks are worried that investigators might try to access their phones in blatant violation of Riley v. California (2014).
Time for a quick primer on the law of accessing phones under the 4th Amendment.
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In general, searching any closed container that belongs to a person requires a warrant. That's not from Riley from 2014, but rather was more directly established in United States v. Chadwick, 433 U.S. 1 (1977). It applies to all containers, including cell phones.
If the government is going to directly search a device, the question becomes whether the search is justified by an exception to the warrant requirement. In 2014, Riley said that one particular exception, "searches incident to arrest," doesn't allow cell phone searches.
My own sense is that there's no conflict between the cases: Torres was only about what is a seizure, not when a seizure is reasonable, which is the key part of Terry.
It's true that Torres's syllogism included the common law of arrest, and under current law an arrest requires PC. But I don't think that means that what was an arrest at common law now requires PC.
Re the CA1's pending en banc opinion in Moore-Bush, on pole camera surveillance, it appears from a petition for rehearing following the still-sealed opinion that we have some details of what the sealed opinion(s) say.
1st, the court divided 3-3 on whether a search occurred.
2nd, it looks like Judge Barron (perhaps with another judge, we don't know) thought there was a search, but ultimately voted for the government on good-faith grounds, even though the government had not argued good faith, ultimately leading to reversal of the motion to suppress.
Counsel has filed a petition for rehearing on the ground that good-faith wasn't in the case. In effect, defense counsel is saying, "hey, we would have won if you hadn't broken the tie in the government's favor with a new issue, as we win if the en banc court is evenly divided."
Is it constitutional to punish a person for violating a criminal law that according to its text will go into effect if and when some uncertain future event occurs? Does the event become an element of the crime that the jury must find proven beyond a reasonable doubt?
To narrow the issues a bit, assume that the act being prosecuted occurred *after* the event occurred that the prosecution is claiming made the law effective.
As you might guess, this question was prompted by Roe/Dobbs trigger laws, like this one in the pending Louisiana law. legis.la.gov/legis/ViewDocu…
Interesting post from @dmarusic suggesting that Twitter discussions are often futile because Twitter discussions often place a big emphasis on matching sentiments instead of persuasiveness of arguments.
The claim, as I understand it, is that Twitter discussions often go nowhere because there's a lot of emphasis on expressing sentiments, saying your feelings, and the like. That kind of convo, the suggestion runs, is something Twitter tends to bring out.
Of course, some will like that kind of discussion, and some will dislike it. As the author says, that's a matter of personal preference. But I think the author is on to something that Twitter does tend to bring out that kind of expression more than others. The q is, why?