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Nov 30 • 7 tweets • 3 min read
Lots of new 4A caselaw in lower cts scrutinizing traffic stops length under Rodriguez—scrutiny often aided by police cameras—& this CA11 op by Branch is a good example. Held: no QI, on to jury, on whether getting out of car 4 dog sniff was beyond stop.
media.ca11.uscourts.gov/opinions/pub/f… #N
For the 3 or 4 nerds following this closely, am I right the Court takes the issue as being whether the non-mission conduct occurred after when the mission stop did or should have completed, not, as at least some courts appear to me to have concluded...
...whether there was some amount of non-mission stop conduct? Here's the Idaho Supreme Court adopting the latter view in State v. Linze:
caselaw.findlaw.com/id-supreme-cou…
Here's the note I recently wrote on this in what will be the next edition of Kamisar LaFave:
Curious, for those who are reading these cases closely, if you agree the CA11 and Idaho SCT just disagree on the answer to that question.
Hmm, wait a second. Did the Idaho Supreme Court essentially back off of Linze in Riley a few months ago?
Maybe there's no disagreement after all, as Linze becomes a narrow holding about abandonment? I am not sure.

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More from @OrinKerr

Orin Kerr Profile picture
Nov 28
Niche tweet, but reading Virginia v. Moore always makes me really mad. Such an ignorant misreading of the history and the caselaw, with Scalia scoffing all the way. And it was unanimous! (To see why the history was all wrong, see here starting at p500 harvardlawreview.org/wp-content/upl…)
Longtime VC readers may remember that I blogged the actual history at length in the run-up to the argument. Good times. volokh.com/posts/11999226…
Sorry, I should have said it was unanimous as to result. To her credit, RBG did briefly take issue with the majority's history in her concurrence in the judgment.
Read 4 tweets
Orin Kerr Profile picture
Nov 27
I've heard 2nd hand anecdotes of law review article selection processes explicitly considering author identity, in the sense of noting an author's school/career stage, and how an acceptance might help them. Curious if this is common or rare. Any recent editors want to weigh in?
To clarify, I’m not talking about efforts to improve the law review, get the best articles, get more cites, etc. Rather, I’m talking about trying to help authors who the editors would like to help, for whatever reason, with a publication offer.
From this and private responses, I gather there is a somewhat widespread practice, at least at a number of the top journals, to consider race/gender diversity, career stage, and whether the scholar may be underplaced at their current institution as part of the decisionmaking.
Read 7 tweets
Orin Kerr Profile picture
Nov 22
Judge Grant asking, if they find there is no equitable jurisdiction in the first place, they don't have to get into any of these issues, is a very friendly question for DOJ.
"Do you think 'raid' is the right term for the execution of a warrant?" Thank you.
Pryor asking, is there a single case allowing equitable jurisdiction w/o a 4th Amendment violation, and if not, "what are we doing here?" doesn't make it too uncertain how he's looking at the case.
Read 8 tweets
Orin Kerr Profile picture
Nov 17
Curious to see how many T14 law schools will still be in the US News rankings by nightfall.
And here we go: Berkeley Law is out
Of course, this means that Berkeley Law is beyond rankings, and should be compared with only two other schools, Harvard and Yale, that are also beyond rankings. Yes, there are only three schools in this "beyond rankings" category: Harvard, Yale, and Berkeley. HYB, as they say.
Read 6 tweets
Orin Kerr Profile picture
Nov 16
REVOLUTION IS IN THE AIR
(@jdmortenson i could get into this)
@jdmortenson This is going to be like the elimination of grades: Once Yale and Harvard do it, Stanford has to join them or else seem less elite.
Read 4 tweets
Orin Kerr Profile picture
Nov 11
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 Image
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.
Read 8 tweets

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