Supreme Court

The Supreme Court and the Fourth Amendment


At SCOTUSblog, George Washington law professor and Volokh Conspiracy blogger Orin Kerr summarizes what the Supreme Court's recently completed 2010-2011 term means for the Fourth Amendment. Short answer: The government did well. Here's a portion of Kerr's analysis:

First, the current Court is rather friendly to the government in Fourth Amendment cases.    Of the three cases on the merits, the government's side won 23 votes and lost only 3 votes.   This Term, at least, none of the Fourth Amendment cases were even close.  Second, it's interesting that Justice Alito wrote two of the three cases.   Of all the current Justices, Justice Alito is perhaps the Justice seen as most often in sync with the government's take in Fourth Amendment cases.  If Justice Alito is writing a lot of Fourth Amendment cases going forward, that is likely to be very good news for the government.

Finally, it's particularly interesting that neither of the two newest Justices, Justices Sotomayor and Kagan, voted for a defendant or civil plaintiff in any of the three cases.  It's important not to make too much of that conclusion, to be sure…. Still, it is noteworthy that the only votes for criminal defendants or civil plaintiffs in the Term's Fourth Amendment cases were two by Justice Ginsburg and one by Justice Breyer.

Read the whole thing here.

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  1. SO what you’re saying is that all of the recent appointees in addition to the old trusty law and order types voted in favor of the gov’t.

    Hope and change never dies, it just keeps moving further into the distance.

  2. It is the duty of the Court to defend the government from those who would hold it to the confines set upon it by the Constitution.

  3. Is it just me. or is that excerpt written in some sort of code or obscure foreign language?

    1. The first letter of each word spells out “rather is an asshat”.

    2. Herc = Damon Root?

      1. Just realized. Should be Herc = Orin Kerr. Sorry M. Root.

    3. You can’t read it? Well apparently you didn’t get your LLM in Obfuscation.

  4. We’re surrounded on all sides by statists of one form or the other.

    1. The whole “Free State” idea looks better to me all the time. Not that we’d ever be able to pull it off.

      1. How about a free nation?

  5. who cares about the 4th when the commerce clause reigns supreme !

  6. I think the only way to make the “free state” work is to pick one which can be detached from the mainland and floated to a secure location outside the twelve mile twenty five thousand mile territorial limit.

    1. Let’s take Hawaii! Currently 47th “most free”, but lets fkin DO ITTTTT!

      Best food, weather, and human beauty. We can transform into a mighty entrepot between Asia and the Americas. A pot smoking Singapore x5.

      And we can start with one of the outer islands and then pull a “Kamehamemeha” and make our move on the whole archipelago.

      I’m serious. I will commit, but we need others. Thousands.

      1. My guess is that you’d have better chances of trying to restore the Monarchy.

        I’m not sure living conditions could be maintained but if your goal is simply to attempt to remove a state, this would be your best bet.

        … “King of my 1.87 acres” Hobbit

        1. Yeah except fuck the monarchy. Unless you mean restore the monarchy, and then overthrow it again?

    2. Perhaps one, or a group, of these?

    3. Alternate proposal: Queen Charlotte Islands. Only 5000 people, quite habitable and like 30 miles from the North America mainland. Looks pretty beautiful check it out on googleearth. We’d have to assimilate the native indians though.

  7. I accidentally read “the government did well” as “the government did good”. Wrong.

    1. You’re not the only one. Since the SCOTUS is part of the government, I initially read this as saying that the SCOTUS did a good job and then was baffled by everything else. It was a silly error, but it threw me until I realized what was meant.

  8. the 4th AS WRITTEN is not that protective of privacy. however, the constitution as written is VERY restrictive on FEDERAL POWER – the courts have just ignored that with crap like Raich

    1. and with that in mind – the remedy – STATE CONSTITUTIONS and STATE LAWS.

      my state is very restrictive on state power, since we have a right to privacy (nowhere mentioned in the federal constitution.

      sure, it sux when people get caught in the federal net, but the vast majority of criminal investigations have no federal nexus, and even when they do – the feds don’t have the time or resources (yet, obama is certainly working on it) to go after the small stuff

      restrictive state constitutions! they ARE what’s for dinner

      1. State constitutions and laws won’t stop the FBI, BATFE, Immigration, or whatever other fucking bureaus they dream up from kicking in your door when they feel like it.

        1. i’m well aware of it, and i addressed that in my post.

          1. I should have extended my comment – if a State Constitution – or any other law – were to create some circumstance the Feds didn’t like, they would simply move more resources to that state.

            If a state were to completely legalize pot, for example, the DEA would “re-focus resources” on that state before you could say “federalism.”

            1. that’s a seperate issue and one i hope to see play out soon (our governor already pussed out on medical mj)

              but the practical reality remains. you are far far far far more likely (especially if you never cross or live near a border) to ever deal with a federal agent for any reason

              you are way more likely to have privacy interests at risk to state agents (see: traffic stops) etc.

              strong state privacy protections against state/local agents’ invasions mean that for the vast majority of people – they live day to day without privacy intrusions

      2. My state’s constitution says “the right of the people to keep and bear arms shall not be questioned”, and if you exercise that right you are guaranteed to be questioned and/or jailed.

        Constitutions are meaningless.

        1. mebbe where you live. choose a better state 🙂

      3. right to privacy (nowhere mentioned in the federal constitution

        I do believe that you will find said right in Amendment #9.

        Hey, dunphy, handed out many tickets to fellow cops lately?

        … Hobbit

        1. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”

          I interpret this to say, ‘Just because we listed some rights here doesn’t mean that there aren’t other rights we left out’. Other non-enumerated rights exist but not being enumerated means they aren’t guaranteed by the Federal Constitution. The right to privacy being one of them.

        2. And fuck off with the dunphy bashing.

          The guy is on the front lines and has a very valid case to make about the War on Domestic Violence.

    2. Very perspicacious. If the SCOTUS actually did its jobs of obeying the constitution and limited Congress to writing the law prescribed in Article 1 Section 8 of the Constitution, we wouldn’t need a very strong 4th, IMHO.

      1. Fuck, that was meant to a reply to Dunphy.

        1. yes, because the federal govt isn’t supposed to be butting into all the crap it does. heck, when the FBI was “invented” the prez made explicit promises that it in no way would ever be a “national police force’ of any sort.


          borders, currency, foreign wars, etc. the fed should be THE MAN!

          telling states they can’t allow people to grow their own MJ on their own property for their own medical use pursuant to state law ? not so much

          regardless, the VAST VAST VAST majority of people will never even interact with a federal LEO, unless they live near or cross a border. they will never be arrested or questioned by one. they will never be raided by one (or more) etc.

          the vast majority of privacy encroaching (or not) stuff done that affects the average person (think – traffic stops etc.) is done on the state or local level. the vast majority of crimes to be investigated don’t even have a federal nexus. so, if a state can offer strong privacy protections (like mine) it has far more effect on the average joe

    3. I think the problem with the 4th is the word reasonable. If you are judge who thinks full cavity body search isn’t unreasonable, then your fucked… no pun intended.

      1. right. contrast with WA constitution that recognizes PRIVACY

        it’s like the difference between strict scrutiny and rational basis.

      2. I misread Troy’s handle as Tony and was wondering when Tony’s master forgot to change the sockpuppet identity before posting sane responses.

  9. Supreme Court: “Forth amendment, smorth amendment”

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