Thread by @OrinKerr

INTERESTING: The government wants to fly a drone in an investigation. Exactly when using a drone is a 4A search is murky.

Q: Can the govt get an All Writs Act order, rather than a warrant, to judicially bless the drone use?

MJ in EDNC: No.

Thread.
drive.google.com/file/d/1vPpW_m… #N

I agree with MJ Numbers's bottom line: You can't use the All Writs Act independently. The whole point of the AWA is to ensure the enforcement of some other judicial order. No other order means no AWA order. So that result is right, I think.

With that said, I don't think MJ Numbers is right to focus on whether or when drone use is a search. It doesn't matter at this stage: It has no impact on whether an AWA order can issue. Either way, the AWA order can't issue.

If you're one of the nerds actually reading this thread, you may be wondering: Why is the government applying for this order? If they have PC, why not just get a warrant? Why try to get a non-warrant AWA order based on PC?

I don't know for sure, but here's my guess. They probably don't want to get a warrant because, once they do, courts tend to assume that a search occurred. DOJ wants to do things that aren't a search under current law, so they don't want to encourage courts to move the line.

Why get an AWA order, though? Two possible reasons. First, if courts later do move the line and say the conduct is now a search, DOJ would have post-Carpenter caselaw that the AWA order was, for 4A purposes, a warrant. (This happened w/post-Carp 2703(d) orders when PC existed)

Second, even if courts won't treat the AWA order as a warrant, they might look favorably on it under the good faith exception. DOJ can say, "this was murky, so we brought this to a judge, and we explained what we wanted to do, & the MJ authorized it." Good optics under the GFE.

I think MJ Numbers was right as to the bottom line, though. DOJ can't get an AWA order somehow blessing the drone use. They either need to rely on existing caselaw (like Riley, Ciraolo, Dow Chemical, etc), and go without a warrant, or get a warrant just in case. /end