United States v. Jones

http://www.supremecourt.gov/opinions/11pdf/10–1259.pdf

SCOTUS ruled today that placing a GPS tracking device on a defendant’s vehicle is a search within the meaning of the 4th Amendment.

This is a 5–4 opinion, split between whether the act of placing a GPS tracking device is a search or whether the long-term surveillance that the defendant was subjected to by way of the GPS tracker violated his reasonable expectation of privacy.

The one thing I want to add is that J. Sotomayor’s concurrence was a surprisingly refreshing bonus. Here is a Supreme Court justice who seems to have at least a basic grasp of technology and technology’s implications on the 4th Amendment.
Having her and J. Scalia (who has his own encouraging views on technology’s impact on the 4th Amendment) on the bench, I’m ever so sightly optimistic about the future of our rights.

UPDATE

After reading numerous commentaries on the case, my feelings about this decision have not changed. The majority, drawing fire from critics of the modern take on the 4th Amendment, strictly adheres to the traditional 4th Amendment jurisprudence. Meanwhile, the minority wants a new test to determine when
4th Amendment rights have been violated, a stance championed by many.
However, as things stand, I believe that the majority’s opinion is the better option for protecting our individual rights.
Short-term surveillance isn’t too intrusive? Call me a cynic but I don’t like any option that let’s the State start without a warrant.

UPDATE AGAIN

After thinking about this decision some more, and after discussing it with some people, I’m no longer so sure of my position.

The decision is still an excellent one in terms of placing GPS trackers on vehicles. According to the majority, placing any GPS tracker, even for an afternoon, is a search and would require a warrant or exigent circumstances. Alito’s minority might be willing to allow that without a warrant since such short-term surveillance is not too intrusive of a person’s reasonable expectation of privacy.

However, in terms of the farther reaching impact of 4th Amendment law, Alito’s test could very well be much more helpful.
In Baltimore, there are police surveillance cameras on almost every corner of the “dangerous neighborhoods.” According to US v. Jones, an argument could be made that such long-term surveillance would require a warrant before… using the video footage? I’m not entirely clear on how this would play out, but it does make for some interesting ideas.

The US Supreme Court struck down as unconstitutional California’s ban on selling and renting violent video games to minors.
http://www.supremecourt.gov/opinions/10pdf/08–1448.pdf
Which is how it should be.
Except it’s not, really.

I’m still reading the opinion (linked to above), but all is not well in First Amendment-land.
The majority does strike down the law, and on the grounds that you would assume — that it’s an impermissible violation of First Amendment rights.

Unfortunately, J. Alito and CJ. Roberts only concur based on the vagueness and overbreadth of the statute and make it clear that they are not concerned with first amendment concerns.

In this case, California has not provided any evidence that the California Legislature intended the law to be limited in this way, or cited any decisions from its courts that would support an “oldest minors” construction.
For these reasons, I conclude that the California violent video game law fails to provide the fair notice that the Constitution requires. And I would go no further. I would not express any view on whether a properly drawn statute would or would not survive First Amendment scrutiny. We should address that question only if and when it is necessary to do so.

(citations removed, emphasis added)
Their concurrence then goes on for pages, describing exactly how horrible these video games are.

J. Breyer has the same view as Alito and Roberts, but he’s comfortable with the way the statute is structured.

Then we get to J. Thomas’s dissent.
Unsurprisingly, J. Thomas decides that the original intent behind the first amendment demands that any speech to minors go through parents or guardians. Evidently, the state legislature is a valid proxy to parents and guardians.
Thomas backs up this claim by describing how the Puritans lived, and the recognized philosophy at the time the Bill of Rights was ratified. Seriously.

Was this a triumph for First Amendment rights? Well… yes, but I’m afraid it is a very limited and will be a very short lived victory.

The Supreme Court issued Berghuis v. Thompkins today. In it they held that a defendant must make an affirmative invocation of his or her right to remain silent and to an attorney.

Thompkins, the defendant, was subject to a 3 hour interrogation in an 8 x 10 foot room. During the entire interview, Thompkins remained silent — exercising his right to remain so. SCOTUS decided that remaining silent isn’t enough, a defendant must make a “simple, unambiguous” statement such as “that he wanted to remain silent or that he did not want to talk with the police.” (page 10 of the majority opinion) and that failing to make such a statement meant that he did not invoke his right. To remain silent. By remaining silent.

The court then decides that remaining silent for nearly 3 hours and finally giving a monosyllabic response is “sufficient to show a course of conduct indicating waiver.” (page 14 of the majority opinion)

Among the ridiculousness of this decision — and I believe it is ridiculous — the thing that strikes me the most is the way the court analyzes the issues. The Miranda warnings exist to inform defendants of their rights, and the options open to them. They are asked whether they understand the rights, so the warning is obviously for the defendant. So why does the court (and I’m not limiting this to Berghuis, it applies equally to earlier cases such as Davis, which this opinion relied upon) assume that the defendant knows he must break his silence immediately after being told that he has the right to remain silent?! Change the #$!@#& wording of the warning! Everything else in the opinion stems from that simple idiotic assumption. Waiver only comes up since the court found that Thompkins never invoked his right to remain silent.

I know I’m not adding any new or brilliant analysis, but I had to get that off of my chest.

The Supreme Court recently ruled that there is a 14 day time limit to a defendant’s Miranda rights.
Scott Greenfield has written about it, as has Orin Kerr.

The court states that:

It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.

Fourteen days. Fourteen days from a run-in with the police, accusing you of a crime. Fourteen days from being stuck in an interrogation room with angry cops. Should we assume that those fourteen days are a carefree time, full of laughter and gaiety? Are those two weeks a vacation from the stress and concern over the accusation?

I understand that the police practically require a bright-line rule when they’re in the field. I respect the difficulty in formulating such a rule. I seriously question whether this rule makes any sense whatsoever.

Let me give you some background about myself: I’m more attuned to absorb broad knowledge than deep understanding. I can work at truly incisive wisdom about a topic, but my default mode is sound-bites and headlines. What can I say, at least I recognize it. For that reason, I was aware of some Supreme Court nominations and cases that came and went, but I had no more than a vague awareness that they were there.

Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court was a fascinating read. It gave me historical and legal background about the major Supreme Court cases of my time. It gave me historical and political background about the Supreme Court justices of my time. I found the style engaging and interesting, if a bit long winded. There were entirely too many occasions when I said to myself, “haven’t I read this before?” However, Toobin repeated entire passages for reasons — obviously he didn’t repeat himself by mistake — and it’s a nit-pick when viewing the entirety of the work.

There are critics of Toobin who claim he is too partisan one way or another; too pro or con one justice or another. I know that the Volokh Conspiracy in particular has issues with his views. They are probably right, but I wasn’t expecting an erudite treatise on constitutional law; I was expecting a description of the Supreme Court, and that’s exactly what I got.