elsewhere: grim amusements - illegal search and seizure

[iainpj]

Grim Amusements / 23 January 2012 / illegal search and seizure -- apparently, the concept still exists in this country

...You know ... I'm by way of thinking that if you want to win your case, telling the Supreme Court that you have the authority (as opposed to the ability) to conduct what may be warrantless searches of the justices themselves is not a really good thing to do. [...] if the article is accurate, in a truly confusing maneuver, while the justices all agreed that the prolonged duration of this "search" without a warrant was unreasonable and thus resulted in the overturning of the sentence, they declined to state whether a warrant was required in the first place.

Seriously, an actual lawyer is going to have to go over that to make sense of it to me, because it sounds like the only thing the Court could clearly agree on was that the government had exceeded its authority in this particular case. They then bent themselves into pretzels to avoid telling the government exactly what its authority was....

Comments

[profrobert.livejournal.com]

My take on it, FWIW (this isn't my area of the law): There are two ways the government can win a Fourth Amendment challenge to evidence on the basis that it was obtained through an "unreasonable search": It can show the search was reasonable, or it can show that there was no search. Here, the government did not make the argument in the lower courts that putting the GPS tracker on the car was reasonable. Therefore, the majority held that the government "forfeited" the ability to make that argument to the Supreme Court. Therefore, the only way the government could prevail before the Court was to show that the use of the GPS was not a search. The Court unanimously rejected that argument. Therefore, the evidence had to be thrown out because it was presumed unreasonably obtained based on the government's failure to argue otherwise below.

The Court regularly refuses to decide questions that are not properly put before it. Any you are right, I suspect, that the lower courts likely will give conflicting results on the "unreasonableness" issue, teeing this up for the Court to revisit in a couple of years. It is notable that you have Alito joining the minority concurrence with the other liberals and Sotomayor joining the other conservative in the majority, which suggests that this may not be a simple right/left issue. Sotomayor's is the key opinion because she is the fifth vote, and it's pretty clear where she's going to come out when the reasonableness question is squarely presented. It may be that she wants to take an even broader stand on what is "private" than the four justices who concurred in the judgment, and this is her way of keeping that issue alive for another day.

[iainpj.livejournal.com]

Ah, OK. I wasn't entirely clear on which argument the government had "forfeited". And of course, if you're arguing that using a GPS tracker isn't a search in the first place, you can't also say, "But it was a reasonable search without a warrant despite not actually being a search!"

Sotomayor is, I must say, a very interesting justice to watch in action, so to speak.

Add One

[profrobert.livejournal.com]

You might find this interesting, too. http://www.scotusblog.com/2012/01/reactions-to-jones-v-united-states-the-government-fared-much-better-than-everyone-realizes/

I think that the analysis that the minority opinion signed on to the idea that a warrant is never required is wrong. I don't read pg. 13 of Alito's opinion that way. The warrant-requirement question is simply left open to another day. The only issue the Court (both opinions) addressed was whether this was a search, and both opinions concluded it was, albeit for different reasons. A warrant goes to making an otherwise unreasonable search reasonable, but here the government forfeited the argument that the search was reasonable by not raising it below. Basically, the Court punted entirely on the warrant-requirement issue (though Sotomayor's concurrence leaves little doubt which way she'd come out).

Another way of thinking about this is practical: When you have Scalia and Alito duking it out, you know it's an esoteric, angels-dancing-on-a-pinhead argument. Sotomayor provides the only clue among the nine justices as to where she'd come out on the real issue: When do you need a warrant to conduct GPS tracking? (And I do agree that this signals Sotomayor is willing to reconsider settled law in light of changes to American society, and in a progressive way. The more I think about her opinion, the more I want to hug her.)

[iainpj.livejournal.com]

When this comes back to the court, I suspect there's going to be a knock-down, dragout fight (judicially speaking) and another set of highly fractured opinions. Assuming that the constitutional issues of whether or not this type of search (a) is actually for all intents and purposes a search and (b) requires a warrant in all cases or just some, and which ones if not all cases require warrants, I have a feeling it's going to get one of those splintered decisions. There will probably be a majority for ... something -- tossing a particularly egregious case with a warrantless search from the Fifth Circuit, let's say. But:

- Sotomayor will write for a group of justices, possibly the liberal wing plus Scalia (a mindbendy coalition, that), saying, "Warrants! Toujours warrants! Lots of privacy rights!" This may even wind up being a true majority opinion, which would actually settle the whole thing. May. Don't expect it, though.

- Thomas will write for a group of justices saying, "The Constitution does not recognize these sorts of privacy rights, and no constitutional amendment enacted since then envisions this type of situation, therefore privacy rights do not exist for any situation whatsoever, and this is an improper extension of property rights to cover this situation. Also, no Constitutional right to privacy. Did I mention that? Oh, OK."

- Alito will write an opinion possibly concurring in the result, but stating squarely again that he does not believe that this type of "search" requires a warrant for short-term use. Where the government erred was in not getting a warrant when it realized that this search would run longer than some unspecified brief time, about which no opinion issued by any member of the the Court will give any guidance whatsoever, because that's just the way they roll.

- Scalia will probably concur in the judgement in part, dissent in part, agree with Thomas in part, and write a separate decison which boils down to, "You're all idiots, and also, the Constitution is utterly silent on this point, so Congress should really hop to it and start enacting some laws that we can then declare to be unconstitutional because the Constitution is utterly silent on this point."