This viral video, and the comments to it, brings up a common misunderstanding. No, the police don't have to tell you why they're detaining or arresting you. And no, they don't have to read you Miranda rights if they arrest you. They just need probable cause. That's it.

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https://twitter.com/InternetH0F/status/1814563422756852136

Ok, the receipts. First, whether the police have to tell you why you're being arrested came up in a 2005 Supreme Court decision, Devenpeck v. Alford. Here's Justice Scalia writing for the 8-0 court, concluding, nope, no such requirement.
tile.loc.gov/storage-servic…

This is a really wild result—a finding that, in a simulated case, federal judges don't follow the law but that law students do—but I wonder if there is an explanation the authors don't identify. 🧵
journals.sagepub.com/doi/epub/10.11…
In the hypothetical case, you are a judge on the International Criminal Court for the Former Yugoslavia (ICTY), and you are deciding a defendant’s appeal of his conviction for war crimes by the ICTY’s trial chamber.

It's relatively easy for law schools to create a culture that values teaching, as professors interact w/students every day & get teaching evaluations. But a common question for law professors, & especially associate deans: How can you create a culture that values scholarship? 🧵 No easy answers, but I suspect the biggest thing is by example; showing that it's valued. A few (among many) possible examples:

(1) By the Dean and Associate Dean attending the faculty workshop. Leadership being involved in the scholarly process sends a big signal of values.

I not a grand constitutional theorist, and I don't really believe in grand constitutional theory, but @espinsegall asks an interesting question on his latest podcast: If you're a non-originalist, what is the best argument for originalism?

🧵 It seems to me that the best argument runs something like this. If the Constitution were easy to amend—such that our fundamental law reflected current clear majority views of public opinion—most people would be originalists.

Among the new demands issued by student "Berkeley Law for Palestine" group after Chemerinsky/Fisk dinner: Correct Erwin Chemerinsky's understanding of the First Amendment. Some UC Assistant General Counsel goes to library, gets First Amendment book for an expert's view...

NOTABLE: Google announces dramatic changes to its "location history" function that should nullify all geofence warrants going forward—and I wouldn't be surprised if that is the point. Code is law, as they say.
(h/t ) blog.google/products/maps/…
fourthamendment.com
As I read this, Google will no longer keep geolocation data even for the subset of users that turn on location history. The data will only be stored locally. Geofence warrants are used when the govt has no suspects, to get some leads, so this will likely defeat the technique.

I'm reading the newly-released transcript of Twitter's proceedings before Judge Howell on Twitter's compliance with the warrant for Trump's account. Here are thoughts as I go.
dcd.uscourts.gov/sites/dcd/file… First, this should be good. The lawyers are experienced lawyers from WilmerHale, and Judge Howell knows more about the Stored Communications Act than any other district judge. This is no one's first rodeo.

“A lot of times he’ll tell me that he lost, but he wants to keep fighting it, and he thinks that there might be enough to overturn the election." -- Mark Meadows on Trump, November 18, 2022, according Cassidy Hutchinson. One interesting thing about the latest Trump indictment is that it doesn't detail reports that Trump admitted he lost, leading some to suggest that they have no such evidence. But it not being detailed doesn't mean it doesn't exist. cnn.com/2023/06/06/pol…

Is access to Automated License Plate Reader info a 4th Amendment Search? Oral argument on this in US v. Mapson, 21-13668, see here, 2nd link.

A few thoughts on the argument.

ca11.uscourts.gov/oral-argument-… Defendant's side, 1st 25 minutes, didn't have much 4A discussion. There are three co-defendants, and only the 2nd defendant is making the ALPR argument. And it's being made in a very tentative way.

Yesterday, at the 8th Circuit judicial conference, Justice Kavanaugh gave a talk that included two interesting pieces of advice for Supreme Court advocates—one explicit, the other implicit. Tne talk isn't online, so I thought I would tweet about them. #appellatetwitter

🧵 First, he said that several Justices, himself included, believe that the two-minute uninterrupted opening time they now give advocates is a really critical time for advocates. You should use it well.

The Trump indictment allegations are bananas. With that said, if Judge Cannon is presiding, I'm not sure how much the facts will matter. Based on her decisions in the litigation over the warrant, Cannon may do whatever she can to protect Trump. And there's a lot she can do. (I hope my skepticism is unwarranted, but Cannon's decisions in the warrant case were astonishing. I find it hard to imagine a judge who would sign those opinions giving a fair shake to both sides now. But we'll see.)

A significant crim law case, Dubin v. US, is out, taking a narrow view of the Aggravated Identity Theft statute, 18 U.S.C. 1028A. Statute is limited to what is ordinarily considered identity theft; ID misuse has to be "at the crux" of the crime.
supremecourt.gov/opinions/22pdf… #N Opinion per Sotomayor, unanimous as to result, with 8 Justices joining majority opinion. Gorsuch concurs in the judgment, concluding the statute is vague and that the Court's attempt to narrow it doesn't end the vagueness.

Maybe the Ma-a-Lago pool-flooding story will turn into something, but the more closely I read it, the less I think that is likely.

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edition.cnn.com/2023/06/05/pol… Caveat: This a fast-moving story, and I am reacting to the initial version of what was posted at CNN. By the time you read this, there may be more facts that need to be considered. But here's my take based on the initial story.

Officer watches video w/image below, in which suspect brings object into home, & gets warrant to search "based on my training and experience as a police officer" that object is a gun.

Judge: Um, that's a bouquet of flowers. Motion to suppress granted.
drive.google.com/file/d/13bCndn… #N The case is U.S. v. Cerda in the EDNY, per Judge Gary Brown.

cc: @Anna_Lvovsky

Different people value intellectual diversity in legal academia differently, which is natural. But one of its benefits is that a lot of law profs write scholarship with an eye to what people around them think, using that as a proxy for what the debate is more broadly. If the... ..,people around you all think the same way, it's easy for that to seem like "the way everyone thinks," even if it's just one of many different views. Hearing a wider range of views can replicate that broader debate in ways that better recognize which premises are contested.

Suspect, stopped by an officer in front of his mom's house, tosses his jacket over a fence on to his mom's property. Officer later grabs jacket and finds gun in pocket. Divided 5th Circuit: This violated the 4A, as suspect did not abandon the jacket.
ca5.uscourts.gov/opinions/pub/2… #N Judge Ho, dissenting: The suspect had abandoned his jacket.

Trump in a "town hall" is just him lying, lie after lie after lie after lie, while the host tries to interject that this is false but Trump just starts talking over her and she can't be heard and it makes no difference. All of which I assume makes Trump opponents wonder how anyone could support him and Trump supporters think how awesome he is.

Colorado Supreme Court oral argument, from 5/4, in State v. Seymour, on the constitutionality of reverse keyword search warrants served on Google. Might have some comments after I listen, but for now here's the link:
youtube.com/live/EbBp6BO2M… Related decision and thread here, btw.

https://twitter.com/OrinKerr/status/1652918190241091584

Recently filed CA9 appeal asks court to answer whether compelled biometric access is "testimonial" and therefore triggers the 5th Amendment privilege.
US v. Payne, 22-50262.

This one has a clear answer: No.

Thread below.

drive.google.com/file/d/1XU4rER… #N In the case, officers took Payne's hand, "grabbed [his] thumb and unlocked the phone." I read that to mean that they took his thumb and placed in on the biometric reader. Later, the officer asked/ordered him to give the code to not have to use the thumb every time.

lol
nytimes.com/2023/05/02/us/… To explain the "lol," we have been having many conversations recently about the role of novel constitutional arguments to achieve policy goals. During the Trump era, the Trump admin's reliance on such arguments to get what it wanted was a subject of much-deserved criticism. /1

Keep returning in my mind to this 8th Circuit 4th Amendment case from yesterday, US v. Forjan. Three judges each went different ways, ultimately affirming the conviction 2-1 but on different grounds. Let's take a look.

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ecf.ca8.uscourts.gov/opndir/23/04/2… Quick facts: This is a drug case with narcotics officers watching a trailer they suspect is being used to distribute meth. An officer decides to investigate by conducting pretextual traffic stops of cars leaving the trailer.