Fourth Amendment

Right now is a great time to be a Supreme Court aficionado. There’s a big new book out about the Court, Jeffrey Toobin’s The Oath (affiliate link). And the new SCOTUS Term starts in just a few days, on Monday, October 1.

Given the time of the year, it’s not surprising that SCOTUS preview events are as common as Ninth Circuit reversals pro se cert petitions. I attended one sponsored by the Federalist Society earlier this month, where Kannon Shanmugam of Williams & Connolly offered excellent insights into October Term 2012. Our Supreme Court correspondent here at Above the Law, Matt Kaiser, went to a preview talk sponsored by the American Constitution Society (which he turned into Kaiser’s Guide To Bluffing Your Way Through Knowledge About The Supreme Court’s New Term).

That sounds like more than enough SCOTUS previews. But I couldn’t help myself from attending one more, due to the starpower of the panelists: Paul Clement, the former solicitor general who’s now a partner at Bancroft, and Tom Goldstein, the noted Supreme Court advocate and founder of the invaluable SCOTUSblog.

What did Messrs. Clement and Goldstein have to say about OT 2012?

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At this point, stuff like this doesn’t even make me mad. I’m just impressed. In a few years, I swear Ashton Kutcher will come out and that he’s been secretly working with the Transportation Security Administration on a new airport-themed reboot of Punk’d.

They dump grandpa’s ashes all over the floor. They accuse some guy of carrying a weapon, when it’s just his massive package. And now they apparently believe the massively overpriced, burnt Starbucks coffee you bought after getting ambiguously naked x-ray photos taken of you is SOMEHOW worth screening too.

[Stops to breathe]

OK. Let’s take a look. And, yes, OF COURSE we have video….

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If this Essay serves no other purpose, I hope it serves to debunk, for any readers who persist in believing it, the myth that locking your trunk will keep the cops from searching it. Based on the number of my students who arrived at law school believing that if you lock your trunk and glove compartment, the police will need a warrant to search them, I surmise that it’s even more widespread among the lay public. But it’s completely, 100% wrong.

– Professor Caleb Mason of Southwestern Law School, in a Saint Louis University Law Journal article that analyzes the legal issues in Jay-Z’s smash hip-hop hit, 99 Problems.


Tom Goldstein

I’m really sorry about that.

Tom Goldstein, publisher of SCOTUSblog, commenting on the Supreme Court decision rendered in Florence v. Board of Chosen Freeholders of County of Burlington. Goldstein, who argued on behalf of the petitioner in that case, made this remark while speaking as a guest on The Daily Show with Jon Stewart.

(In the wake of President Obama’s comments on the Court’s “judicial activism,” what did Goldstein have to say about the Nine’s stance on Marbury v. Madison? Find out, after the jump.)

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The Supreme Court just handed down a unanimous opinion ruling in one of the most closely watched cases of the year. All the justices agreed on the result, but diverged significantly in reasoning.

This morning, the court issued its decision in United States v. Jones. Police in Washington, D.C. placed a GPS tracking device on the car of Antoine Jones, a nightclub owner, without obtaining a warrant. The GPS device helped law enforcement link Jones to a house used to store drugs and money. He was eventually convicted and sentenced to life in prison. An appeals court later overturned his conviction.

The central issue in Jones was whether attaching a GPS device to a car (i.e., allowing law enforcement 24/7 access to a person’s movements), without obtaining a warrant first, violated the Fourth Amendment.

The case has been heralded as one of the most important privacy cases in recent memory. Wired’s Threat Level blog said Jones “is arguably the biggest Fourth Amendment case in the computer age.” Editor emerita Kashmir Hill attended oral arguments for the case back in November.

What did the justices say? The ruling might surprise you…

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WASHINGTON - OCTOBER 08:  U.S. Supreme Court m...

“If you win this case, there is nothing to prevent the police or government from monitoring 24 hours a day the public movement of every citizen of the United States,” said Justice Breyer.

The Supreme Court justices were decked out in their usual black robes today for U.S. vs Jones [pdf], a case involving the question of whether police need a warrant to attach a GPS tracker to someone’s car. But given their paranoia about possible technology-enabled government intrusions on privacy, it might not have been surprising if they had also been wearing tin foil hats.

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The best kind of welfare?

* Cloudy with a chance of dismissal for Steve Sunshine, Sprint’s Skaddenite. During oral argument, a judge reminded him that antitrust law didn’t exist to protect competitors. [Wall Street Journal]

* Oh, the things you’ll argue to get around a motion to dismiss: Dominique Strauss-Kahn’s accuser now contends that diplomatic immunity isn’t a pass for free blow jobs. [Bloomberg]

* Israel trades prisoners like Pokémon cards. Pending approval from the country’s security cabinet, Emory Law student Ilan Grapel will be swapped for 25 Egyptian prisoners. [Los Angeles Times]

* Premeditation? Sam Friedlander, the solo practitioner who massacred his family, bought a shotgun after getting the short end of the stick in a custody arrangement. [Journal News]

* Do drug tests constitute unreasonable searches and seizures? Maybe not, but thanks to a temporary injunction, welfare recipients in Florida will live to toke another day. [Washington Post]

We’ve been talking a lot recently about the secretly authorized stuff our government does to us — like killing us, or molesting us at airports.

Here’s another one for the list: digging through our emails or Twitter feeds or cell phone data, without probable cause, our permission, or our knowledge. This isn’t necessarily shocking in and of itself; back in April, Kashmir Hill wrote about how often the government requests information about private individuals from tech companies.

What’s shocking is the ease with which the government gets that information and the secrecy with which it does so. Somehow it’s all based on a law that is older than the Internet. The policy recently came to light when authorities ordered a small Internet provider, as well as Twitter and Google, to turn over information about Jacob Appelbaum, an American who volunteers with WikiLeaks.

How does the U.S. government circumvent basic probable cause and search warrant requirements when it wants electronic information? Let’s see….

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Before we get to the meat of this story, let’s quickly state the obvious: if you plan to commit a violent crime, you probably should not post details about it on Facebook or Craigslist. If you simply must tell the Interwebs of your devious agenda, it’s probably best to close the incriminating window ASAP, so visitors to your home do not see it on your the PC in your living room.

Glad we got that out of the way. Today, we have another fun dumb criminal story for you. It even comes complete with a thought-provoking judicial ruling. Did you know that if a police officer simply moves a computer mouse or presses a key to wake a computer up from sleep mode, that it constitutes a Fourth Amendment search? Well, neither did a Wisconsin police officer who was investigating a man who allegedly threatened to shoot up a shopping mall (gavel bang: Legal Blog Watch).

More on the case, US v. Michael Musgrove, plus Musgrove’s, original thug life Craigslist posting after the jump….

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* In November, the Supreme Court will decide whether our Fourth Amendment rights come subject to advances in technology. I, for one, welcome our new Orwellian overlords. [New York Times]

* What do you get when two wireless carriers with craptastic coverage and service that goes down more than a porn star have plans to merge? Who knows, but AT&T says it’s a good thing. [Bloomberg]

* Class actions are pretty pricey, so it would be great if Groupon offered its employees a special on overtime pay. That daily deal would reach the required minimum. [Crain's Chicago Business]

* Would that Stephen McDaniel had once posted online about where he would hide a “hypothetical” body. The search for the remains of Lauren Giddings continues this week. [Macon Telegraph]

* Stephen Zack, immediate past president of the ABA, is donating $800K to his alma mater to promote diversity. Promoting employment is apparently still on the back burner. [Miami Herald]

* Do fat people have rights under the ADA? White Castle, if your customers are too large to fit into your booths, the solution isn’t to send them coupons for more fast food. [New York Post]

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