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.