Orin Kerr is the Fred C. Stevenson Research Professor of Law at The George Washington University Law School.

One of the most basic ideas in Fourth Amendment law is what you might call the eyewitness rule: The government can always talk to eyewitnesses. If the police find out a bank was robbed, they can go to the bank and interview those who saw the crime occur. They can talk to the bank clerk about what he observed. They can talk to the security guard about what she experienced. They can talk to bank customers about what happened. These interviews, whether voluntary or compelled, don’t trigger the Fourth Amendment. There’s just no Fourth Amendment right to prevent people from talking about what they saw you do.

If the Supreme Court sticks with the eyewitness rule, Carpenter v. United States is an easy case. Cellphone companies are eyewitnesses. Customers use their services and hire the companies to place calls for them. The companies generate records of what they did for their customers. If the police find out a phone was used in the commission of a crime, they can go to the phone company and get its records about how the phone was used. The phone company can be forced to tell the government what it did for its users. Because there’s no Fourth Amendment right to prevent people from telling the police about what they saw you do, getting those records does not trigger the customer’s Fourth Amendment rights.

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Petition of the day

By on Aug 4, 2017 at 1:08 pm

The petition of the day is:

17-17
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether Title IV-E of the Social Security Act, 42 U.S.C. § 670 et. seq., confers an individual right to foster-care maintenance payments that is enforceable by bringing suit under 42 U.S.C. § 1983.

Friday round-up

By on Aug 4, 2017 at 7:21 am

The Supreme Court announced yesterday that it will institute electronic filing beginning on November 13, 2017. Andrew Hamm covers the announcement for this blog. Additional coverage comes from Jessica Gresko at the Associated Press and Brian Fung in The Washington Post, who reports that “[t]he change will allow the public to access legal filings for all future cases — free of charge.” At Crime and Consequences, Kent Scheidegger welcomes the prospect of free public access to filings, noting that “[i]n the lower federal courts, public documents are available only by payment of a fee that has little relation to the cost of providing the service.”

At Take Care, Leah Litman argues that the Supreme Court’s scheduling of the oral argument in the entry-ban cases for the second week, rather than the first week, of the October session “might be further evidence of what several commentators identified in the Supreme Court’s June 26 decision and order—an inclination to never decide the case on its merits.” At his eponymous blog, Lyle Denniston reports that in a filing yesterday in the U.S. Court of Appeals for the 9th Circuit, the Hawaii challengers to the entry ban “accused the Administration … of continuing to defy the Supreme Court by insisting on more power to exclude foreign nationals than the Justices have given it” and of “wrongly claiming that the Supreme Court has already upheld the government’s power to exclude even refugees who currently have some formal ties to the United States.”

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101 First Street

By on Aug 3, 2017 at 2:35 pm

This past term, while the Supreme Court was on its winter break, First Mondays released a special two-episode series called “101 First Street.” The series is designed to serve as an introduction to how the Supreme Court works for nonexperts and nonlawyers. The first episode, “Ser-shee-or-RARE-eye,” walks listeners through the Supreme Court’s case-selection process — including such minutiae as the difference between “relists” and “reschedules” and how to pronounce “certiorari” — as well as the court’s process for resolving merits cases up to and including the briefing stage. The second episode, “The Most Exciting Parts,” picks up where the first episode left off, and describes the oral-argument process and the rest of the court’s decision making, including its issuance of written opinions.

We hope that these 101 First Street episodes will serve as a valuable and timeless resource to anyone who wants to know more about how the Supreme Court works. Law students in particular might find them useful, and we encourage law professors teaching classes with a heavy Supreme Court focus (such as Constitutional Law or Criminal Procedure) to suggest them to students.

 
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Petition of the day

By on Aug 3, 2017 at 12:28 pm

The petition of the day is:

17-2

Issue: Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.

Alan Butler is senior counsel for the Electronic Privacy Information Center, which filed amici briefs in support of petitioner David Riley in Riley v. California and in support of respondent Antoine Jones in United States v. Jones.

The Supreme Court’s Fourth Amendment opinions, especially those involving new surveillance technologies, are well stocked with metaphors and similes. Lower courts are faced with the challenge of applying abstract contours of constitutional law to techniques unimaginable when previous cases were decided. Usually courts reach for similes first – “this new technique is like the old technique considered in that famous case several decades ago” – in hopes of maintaining consistency. But, more recently, the Supreme Court has relied on new metaphors to explain how to adapt old doctrine to new facts. These doctrinal course corrections are necessary where the routine application of old rules to new facts produces absurd results. We will likely see a similar correction in Carpenter v. United States.

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Event announcement

By on Aug 3, 2017 at 10:20 am

On August 11 at 3:30 p.m., the Criminal Justice Section of the American Bar Association will review the criminal cases from the Supreme Court’s recently completed term. Panelists will include Judge Gerard Lynch of the U.S. Court of Appeals for the 2nd Circuit, Josh Dratel and Margaret Garnett; Rory Little will moderate. More information about this event, which will be held at the Intercontinental Barclay Hotel in New York, is available at this link.

 
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Thursday round-up

By on Aug 3, 2017 at 7:12 am

Briefly:

  • To mark the 25th anniversary of Justice Clarence Thomas’ appointment to the Supreme Court, the Yale Law Journal offers a collection of essays exploring various aspects of Thomas’ jurisprudence.
  • Counting to 5 (podcast) features “the second part of a two part look at the Court’s unanimous June 19th decision in Matal v. Tam, … the case about the Asian-American rock band The Slants and their battle with the PTO to trademark their band name.”
  • At the Associated Press, Sharon Cohen and Adam Geller recount the results of a 50-state survey assessing “how judges and prosecutors, lawmakers and parole boards are re-examining juvenile lifer cases” in the wake of recent Supreme Court decisions “find[ing] that the harshest punishments given to adults are unconstitutionally cruel and unusual when imposed on teens”; Cohen and Geller conclude that “[t]he odds of release or continued imprisonment vary from state to state, even county to county, in a pattern that can make justice seem arbitrary.”
  • In The University of Pennsylvania’s Regulatory Review, law student Leah Wong looks at the court’s decision this term in in Star Athletica, LLC v. Varsity Brands, Inc., which held that a feature of a useful article is copyrightable if it can be perceived as a separately protectable work.

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Petition of the day

By on Aug 2, 2017 at 1:02 pm

The petition of the day is:

16-1548

Issue: Whether a federal law enforcement officer is “convicted” within the meaning of 5 U.S.C. § 7371 when a guilty plea has been entered but no sentence has been imposed, no judgment has been issued, and the plea can still be withdrawn.

Jennifer Lynch is a senior staff attorney for the Electronic Frontier Foundation, which filed an amicus brief in support of Timothy Carpenter’s petition for certiorari in Carpenter v. United States.

This summer, the Supreme Court granted certiorari in Carpenter v. United States, a case that offers the court another chance to address just how far the Fourth Amendment’s protections against warrantless searches and seizures extend to cover information generated by the modern technologies we rely on every day.

In Carpenter, the FBI accessed location data linked to Timothy Carpenter’s and his co-defendant’s cell phones in its attempt to place the suspects at the sites of several robberies. But the data the FBI asked for and received weren’t limited to the days and times of the known robberies – they also included months of records that could reveal everywhere the defendants were every time they made or received a phone call. And the FBI got all of this information without a warrant.

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