The Volokh Conspiracy Archive

The state trial court handed down its ruling in People v. Mangione, on whether to suppress part of all of the contents of the backpack Luigi Mangione was carrying at the time of his arrest in the state prosecution against him. In the federal case against Mangione, the federal court back in January denied the motion to suppress the contents of the backpack. But today the state court suppresses some of the contents for the state court prosecution (in particular, the magazine, cellphone, passport, wallet and computer chip) and allows the government to use other contents (in particular, the red notebook).

I found the new opinion a little odd. There's a part I was expecting that wasn't addressed. I thought I would explain what it is. [UPDATE: See below for what appears to be the explanation, rooted in New York state constitutional law.]

First, the opinion. The court begins by concluding that the relevant law is the federal Fourth Amendment and the New York Constitution, even though the actions were those of Pennsylvania police in Pennsylvania. So the heightened restrictions of New York law apply to the Pennsylvania officers, even though they presumably didn't know (and maybe couldn't know) they would be governed by New York state search and seizure law.

Second, the court concludes that New York search and seizure law settles what I have called the "moving property problem": If someone has a backpack, and it is moved away from a person, New York law says it can't be searched incident to arrest because the exigency is gone and the backpack is no longer in the area of the suspect's control.

Third, the court turns to the search at the police station, where the items in the backpack were searched. This search was fine, the court says: although the search at the McDonalds can't be allowed as an incident-to-arrest search, the search at the police station was valid as an inventory search. In particular, this allows admission of the notebook found in the backpack that wasn't searched at the McDonalds.

Fourth, the court says that the warrant the government obtained later that today to search the backpack does not make the contents admissible under the independent source doctrine, as this wasn't an independent source.

Beyond the part about New York law applying—a matter of the scope of New York law that I don't have a view of myself—I'm puzzled as to why there's no inevitable discovery argument based on the inventory search. That's the main argument that the federal court rested on in denying the motion to suppress, based on the same facts: the police were going to inventory everything anyway and find everything anyway, so everything they found in the backpack was going to be discovered anyway in the inventory, regardless of whether they initially searched it lawfully or not.

As far as I can tell, the state court does not address this argument, although I would think it's the key argument to address. Did the state not raise it? Or is there something about New York state law that makes that an improper argument? I don't know, as I haven't followed the case closely enough to say.

UPDATE: A New York lawyer writes in that it's an issue of New York law, where the inevitable discovery exception is a lot narrower than it is under federal law. See People v. Stith, 69 NY2d 313, 318–19 (1987): Read More

Today the Supreme Court GVR'd two cases in light of Callais. State Board of Election Commissioners v. Mississippi NAACP and Turtle Mountain Band of Chippewa Indians v. North Dakota presented the same issue: whether there is a private cause of action under Section 2. And, in both cases, Justice Jackson dissented. She wrote:

This case presents only the question of Section 2's private enforceability, which our decision in Louisiana v. Callais, 608 U. S. ___ (2026), did not address. Thus I see no basis for vacating the lower court's judgment.

Last week, the Court GVR'd a case from Alabama, Allen v. Caster, in light of Callais. Justice Sotomayor dissented, joined by Justices Kagan and Jackson. They contended that in addition to a Section 2 claim, the District Court also found a vote dilution claim, so there was no reason to GVR.

Today, the Court vacates a District Court order enjoining Alabama's 2023 Redistricting Plan and remands for reconsideration in light of the Court's new interpretation of §2 of the Voting Rights Act in Louisiana v. Callais, 608 U. S. ___ (2026). There is no reason to do so. In addition to holdingthat Alabama's 2023 Redistricting Plan violates §2, the District Court held, in one of the three cases before this Court, that Alabama violated the Fourteenth Amendment by intentionally diluting the votes of Black voters in Alabama. That constitutional finding of intentional discrimination is independent of, and unaffected by, any of the legal issues discussed in Callais. Vacatur is thus inappropriate and will cause only confusion as Alabamians begin to vote in the elections scheduled for next week. I respectfully dissent.

What is going on here?

I think much of the criticism of the "shadow" docket is overblown. When the Court grants or denies a stay, you can usually figure out why they did so. But the GVRs are often more cryptic. Often the Court is telling the parties to look at one issue, but in reality know another issue will resolve it.

For example, the cases from Mississippi and North Dakota are Section 2 cases. The question of whether there is an enforceable private cause of action only matters if in fact there is a Section 2 violation. You usually think of the existence of a cause of action as a non-merits threshold issue, but in reality, if there is no discrimination, the Supreme Court won't have to decide the threshold issue.

In light of Callais, I think it very, very unlikely that the Plaintiffs can prove an intentional racial gerrymander. And they may not want to. Remember, the Court vacated the entire judgment of the lower court. The parties have to start from square one. They would have to hold a new trial based on new evidence. And, as all know, Mississippi will likely redistrict in the near future, so the case would be mooted out. The NAACP may simply decide this particular case is not worth fighting. Why litigate over old maps that will not affect anyone? Thus the case goes away I am less familiar with the facts in North Dakota, but I suspect similar dynamic are at play. The Justices may never have to actually decide the private cause of action case under Section 2 because Section 2 will have very little vitality post-Callais. (Derek Muller has a new paper on private rights of action for election litigation.)

The Alabama GVR is a bit trickier to figure out. It isn't clear to me that the vote dilution case is controlled by Callais. But perhaps the Justices are hoping the District Court extends the Callais rule to the Fourteenth Amendment context. Then, the Court can summarily affirm, or something to that extent.

The Court's general practice, it seems, is to issue a landmark ruling then hide for a while. They took this path with affirmative action, abortion, guns, and now will do it with voting rights.

From today's Second Circuit decision in Christian v. Keane, in an opinion by Judge Joseph Bianco, joined by Judge Eunice Lee and, as to the Private Proverty Provision, Judge Steven Menashi:

These two appeals involve Plaintiffs' Second Amendment challenge to New York's Concealed Carry Improvement Act ("CCIA") provisions prohibiting firearm possession in two types of locations: (1) private property "where [a] person knows or reasonably should know that the owner or lessee of such property has not permitted such possession by clear and conspicuous signage indicating that the carrying of [guns] on their property is permitted or by otherwise giving express consent; and (2) "sensitive locations. Plaintiffs challenge the Private Property Provision, as applied to private property open to the public. Plaintiffs asserted only a facial challenge to the Public Parks Provision in the district court, but now also seek to raise an as-applied challenge based upon its application to rural parks.

We conclude that the Private Property Provision, as applied to private property open to the public, is unconstitutional because the State did not carry its burden of demonstrating that the restriction falls within our Nation's historical tradition of gun regulations, as required under the framework set forth in New York State Rifle & Pistol Association, Inc. v. Bruen (2022). On the other hand, we conclude that the Public Parks Provision survives Plaintiffs' facial challenge because the State has carried its burden of showing that regulation is consistent with our Nation's historical tradition of banning gun possession in urban public parks. Finally, we decline to address any as-applied challenge to the Public Parks Provision, to the extent it applies to rural parks, because Plaintiffs failed to raise that challenge in the district court.

Judge Menashi dissented in part as to the Public Parks Provision.

From Magistrate Judge Elsa Bullard (D. Minn.) Wednesday in U.S. v. Doyle:

On January 26, 2026, the Government filed a complaint alleging that Defendant Joshua Doyle "did forcibly assault, resist, oppose, impede, or interfere with … Victim 1, a United State[s] Homeland Security Investigations Special Agent" performing official duties, and made physical contact with the victim, in violation of 18 U.S.C. § 111(a)(1)….

Mr. Doyle moves for a "gag order" based on two posts that he alleges former Attorney General Pam Bondi made "regarding Mr. Doyle" prior to his initial appearance. Mr. Doyle asks me to "prohibit[ ] the Government from making further statements about [him]" and to direct Bondi to remove the two posts.

On January 28, former Attorney General Pam Bondi allegedly made two posts on the social-media platform, X.

In the first post, made at 12:53 pm., she stated:

I am on the ground in Minneapolis today. Federal agents have arrested 16 Minnesota rioters for allegedly assaulting federal law enforcement—people who have been resisting and impeding our federal law enforcement agents. We expect more arrests to come. I've said it before and I'll say it again: NOTHING will stop President Trump and this Department of Justice from enforcing the law."

In the second post, made at 1:10 p.m., Mr. Doyle alleges that Bondi posted a "'booking' style photo" of him….

Mr. Doyle's briefing suggests three separate grounds for a gag order.

From E.B. v. Kimi Crush Ltd., decided Thursday by Judge Michelle Peterson (W.D. Wash.):

On March 3, 2026, Plaintiff E.B. filed a complaint on behalf of herself and all others similarly situated, bringing Washington state law claims alleging that Defendants Kimi Crush Limited …, Ant Hive Creations, Inc. …, Prinsloo Global Group, Inc. …, JoyBox Studio Limited …, and Starfish Technology Limited … operated illegal online casino games. Plaintiff states that she is a criminal defense attorney who faces reputational and professional harm if her diagnosed gambling addiction becomes known….

Plaintiff requests to proceed under the pseudonym E.B. to "(i) maintain her privacy when disclosing personal and highly sensitive details, such as her diagnosed gambling addiction; and (ii) protect her from the significant risk of professional and reputational harm[.]" …

A party's use of a fictitious name or pseudonym runs counter to "the public's common law right of access to judicial proceedings and Rule 10(a)'s command that the title of every complaint 'include the names of all the parties[.]'" Nevertheless, the Ninth Circuit "permit[s] parties to proceed anonymously when special circumstances justify secrecy." Proceeding under a pseudonym is permissible when "necessary … to protect a person from harassment, injury, ridicule or personal embarrassment." …

The Court finds Plaintiff has made a sufficient showing of the "need for anonymity to at least warrant provisionally granting her leave to continue pseudonymously until Defendants have appeared." … Plaintiff contends she risks substantial social and professional stigma should her gambling addiction become public knowledge. She raises reasonable concerns that this would affect her ability to attract and retain clients.

So Special Judge Steven David (Ind. Super. Ct. St. Joseph County) ruled Friday. There had been a dispute about the reasonableness of the attorney fees, as there often is, but the court largely ruled that defendant's fee request was indeed reasonable (with only modest deductions). It also noted that the plaintiff didn't use the opportunity to present live evidence at the fee hearing, which might have offered more of a chance at successfully challenging the fees:

No questions were asked of [defendant's] Lead Counsel. No one asked him to be placed under oath to give additional testimony other than his previous declarations. He was not asked to justify the hours. He was not asked any questions at all that may have helped the trial court judge determine what was reasonable or unreasonable. Such an examination would seem to this trial judge as to have been very helpful to it in its determination of what is reasonable and what is not.

For more on the substance of the case, here's an excerpt from the opinion in Kay v. Irish Rover Inc., decided last year by Indiana Court of Appeals Judge Paul Mathias, joined by Judges Elaine Brown and Dana Kenworthy:

Dr. Tamara Kay appeals the St. Joseph Superior Court's order granting The Irish Rover, Inc.'s, motion to dismiss her defamation claim…. On the dates the alleged defamation occurred, Dr. Kay was a tenured professor in the Keough School of Global Affairs and the Sociology Department at the University of Notre Dame. Her "academic research and teaching is focused on trade, labor, social movements, globalization, organizations, and global health which includes reproductive health and rights." Many of Dr. Kay's extensive writings in journals, newspapers, and on Twitter focus on advocating for abortion legalization.

The Irish Rover is an independent, student newspaper at the University. {[O]ne of its missions is to articulate and defend the Catholic character of the University.} …

After the United States Supreme Court decided Dobbs v. Jackson Woman's Health Organization on June 24, 2022, Dr. Kay "became more outspoken on the issue of abortion access," including more frequent posts on Twitter. On September 15, 2022, the Indiana General Assembly's legislation limiting abortion in Indiana took effect, although it was enjoined shortly thereafter….

Kay sued over two articles published by the Irish Rover that concerned Dr. Kay's speech. To oversimplify matters somewhat, under Indiana libel law, a libel claim based on speech on matters of public concern can only prevail based on a showing of knowing or reckless falsehood—mere negligence isn't enough, even if plaintiff is a private figure. (In this respect, Indiana libel law is more speaker-protective than the constitutional minimum set forth by First Amendment law.) And here, the court concluded that the Rover's statements were either true or at least reasonable interpretations of the facts that the Rover had, and certainly weren't knowingly or recklessly false:

From Wednesday's decision by Judge Amul Thapar, joined by Judges Julia Gibbons and Joan Larsen, in U.S. v. Ramic:

Over a decade ago, a new wave of terrorism spread across the Middle East. A group calling itself the Islamic State of Iraq and Syria (ISIS) sought to establish a new regime strictly governed by Islamic law. To do so, ISIS employed brutal tactics—planting bombs, publicly decapitating its enemies, burning people alive, and enslaving women and children. It also launched vicious attacks to conquer territory in Iraq and Syria. And it recruited fighters from around the world to perform these acts of terrorism.

Mirsad Ramic was one such fighter. He traveled from the United States to Syria, where he participated in an attack that claimed over 100,000 lives….

Mirsad Ramic grew up in Bosnia during a civil war. That conflict involved genocide and war crimes targeted at minority groups, including Bosnian Muslims like Ramic and his family. In fact, Ramic's father was killed during this conflict. So once the war concluded, the United States offered Ramic and his family a fresh start by granting them refugee status. Ramic's family ultimately settled in Bowling Green, Kentucky, a city with a vibrant population of other Bosnian refugees. Eventually, Ramic became a naturalized U.S. citizen, but he was unhappy with his American life.

Rather than embracing the privilege of American citizenship, Ramic embraced the extremist views of terrorist groups trying to destroy the United States and its allies. During his naturalization ceremony, Ramic refused to recite the oath of allegiance to the United States. Instead, he proclaimed an Islamic oath and cursed all nonbelievers….

5/18/1860: Abraham Lincoln wins the Republican Party presidential nomination.

From Wikipedia, photo by Dmitry Rozhkov of display "Rock on bones" in Gallery "Vinzavod", Moscow (2008)

My father Vladimir was remarking yesterday about an item from his youth in the USSR: People wanted to hear Western music (such as jazz and rock), but the Soviet authorities wouldn't allow it to be distributed. One could sometimes hear it on foreign shortwave broadcasts, but how to record it? And if one could get a smuggled foreign LP, how to duplicate it? Consumer tape recorders were generally unavailable. People had record players, and some people managed to cobble together recording machines for LPs. But the standard recording medium—vinyl—wasn't available to ordinary consumers.

So people would record instead on used X-rays, such as the ones you can see above. The story made its way into the West some time ago; there's a recent book on the subject, Bone Music: Soviet X-Ray Audio, and an accompanying web site. Here's an excerpt from the site:

5/17/1954: Brown v. Board of Education and Bolling v. Sharpe are decided.

5/16/1918: The Sedition Act of 1918 is enacted. The Supreme Court upheld prosecutions brought under this law in Schenck, Debs, and Abrams.

Today's order is here; the application that was denied is here. The state's argument for a stay, which the Court rejected, begins thus:

Days before Virginia's deadline to begin administering the 2026 election for members of the United States House of Representatives, the Supreme Court of Virginia invalidated an amendment to the Commonwealth's Constitution that authorizes the General Assembly to adopt new congressional maps.

The Court purported to find a procedural flaw in the amendment's passage and ratification: that the General Assembly failed to pass the amendment prior to the "next general election" before passing it a second time and referring the amendment to the people for their approval. The basis for that holding was the Court's view that, contrary to the Constitution's own definition of the term "election" to refer to a single day in November, the term instead encompasses the entire period of early voting beginning in September. Based on that novel and manifestly atextual interpretation, the Court overrode the will of the people who ratified the amendment by ordering the Commonwealth to conduct its election with the congressional districts that the people rejected.

A stay is warranted because the decision by the Supreme Court of Virginia is deeply mistaken on two critical issues of federal law with profound practical importance to the Nation. The decision below violates federal law in two separate ways. First, it predicated its interpretation of the Virginia Constitution on a grave misreading of federal law, which expressly fixes a single day for the "election" of Representatives and Delegates to Congress. See 2 U.S.C. § 7. Where a state court's decision on purportedly state-law grounds was "interwoven with the federal law," this Court may intervene to ensure that the state court's decision complies with federal law. Michigan v. Long, 463 U.S. 1032, 1040 (1983). See also Three Affiliated Tribesof Fort Berthold Rsrv. v. Wold Eng'g, P.C., 467 U.S. 138, 153 (1984) (vacating state supreme court decision whose interpretation of state statute "rest[ed] on a misconception of federal law").

Second, by rejecting the plain text of the Virginia Constitution's definition of the term "election" to adopt its own contrary meaning, the Supreme Court of Virginia "transgressed the ordinary bounds of judicial review such that it arrogated to itself the power vested in the state legislature to regulate federal elections." Moore v. Harper, 600 U.S. 1, 36 (2023) (cleaned up). Either violation is sufficient for this Court to reverse the decision below. Accordingly, there is a "reasonable probability that this Court will grant certiorari and will then reverse the decision below."

From yesterday's decision by Judge Anthony Trenga (E.D. Va.) in Fseisi v. O'Keefe Media Group:

The Complaint alleges the following:

Defendant James O'Keefe is a conservative political activist whose organization, Defendant O'Keefe Media Group ("OMG"), frequently engages in "sting" operations in which its agents use false identities to arrange meetings with individuals affiliated with government, mainstream media, or progressive organizations, and surreptitiously record them with the goal of publishing the subject's potentially unflattering or controversial statements so as to tarnish the reputations of the subject or their affiliated institution or, in OMG's words, to "expos[e] corruption." Plaintiff, a top secret-cleared information systems security consultant to government agencies, including the Central Intelligence Agency, the National Security Agency and the Office of Director of National Intelligence, fell prey to one such operation in April 2024, during what he thought were two romantic dates with "Jane Doe," who unbeknownst to Plaintiff, was an OMG employee.

Jane Doe contacted Plaintiff via the Bumble dating app and, during both dates, represented herself as a liberal and pressed him for details on his work, including whether certain government agencies may have surveilled or withheld information from then-former President Donald Trump. In response to this questioning, Plaintiff stated, inter alia, that while "anything was possible" and he could not give Jane Doe a straight answer, he "believed" some information was withheld, and that NSA or CIA "could have" surveilled Trump. {The videos posted by OMG, which Defendants link to in their Motion and which the Court may consider as intrinsic to the Complaint, contain statements that are much more explicit than those alleged in the Complaint (and do not appear to be cut or deceptively edited).}

On the second date, Plaintiff noticed what he thought was a recording device in Jane Doe's bag (which she had kept on the table during both dates) and asked her whether he was being recorded. In response, she denied that, but then repeatedly refused to allow him to inspect her bag and shortly left the restaurant. Despite this experience, Fseisi later agreed to meet Jane Doe again in the District of Columbia, where he was instead confronted by O'Keefe and a cameraman.

Last week, I recorded a We the People podcast episode for the National Constitution Center discussing the increased volume of applications and orders on the Supreme Court's interim docket, aka the "shadow docket," with Professor Steven Vladeck of the Georgetown Law Center, moderated by Julie Silverbrook. The podcast has now been released as is available for listen here, or on your podcast platform of choice.

AI in Court

Georgia High Court Admonishes D.A.'s Office, Over "Vehement" Dissent, for Role in AI Hallucinations in Court Order

But the court is unanimous on the sanctions for the particular Assistant D.A. who was involved, and added: "We strongly encourage trial courts to carefully review proposed orders with the understanding that artificial intelligence software, with all of its potential risks and benefits, may have been used to prepare such proposed orders."

Eugene Volokh | 5.15.2026 3:36 PM

From Payne v. State, decided last week, in an opinion by Justice Benjamin Land:

Hannah Payne was sentenced to life in prison plus 13 years for the murder and false imprisonment of Kenneth Herring and the possession of a firearm during the commission of a felony. In response to Payne's motion for new trial, the assistant district attorney assigned to the case, Deborah Leslie, filed a brief that contained non-existent cases and cases that do not stand for the proposition asserted in the brief.

In an order largely prepared by ADA Leslie, the trial court denied Payne's motion for new trial. That order contained citations to non-existent cases and cases that do not stand for the proposition asserted in the order.

In response to Payne's appeal, ADA Leslie once again cited cases that do not stand for the proposition asserted. As a result of these filings, we have been sidetracked from our obligation of resolving the merits of Payne's appeal and have had to devote significant time and resources to the discovery of this misconduct and deciding what to do about it. As outlined below, we admonish ADA Leslie and the Clayton County District Attorney's office; we sanction ADA Leslie and suspend her privilege to practice in our Court; and we vacate the trial court's order denying Payne's motion for new trial and remand the case to the trial court with instruction that it issue a new order that does not contain the citation of fake cases or other misattributed case citations….

The Volokh Conspiracy

The Missing Part of the State Court Mangione Suppression Ruling?

Why is the Court GVRing Cases In Light Of Callais That Did Not Turn On The Issues In Callais?

The Second Amendment, Guns on Private Property, Guns in Parks, and "The Fifth Element"

Court Refuses to Order Pam Bondi to Delete Tweeted Booking Photos in Prosecution for Interference with ICE in Minneapolis

Plaintiff Can Sue Pseudonymously Because She's a Criminal Defense Lawyer with a Gambling Addiction

Notre Dame Pro-Abortion-Rights Professor Ordered to Pay $200K in Fees in Failed Libel Lawsuit Against Student Newspaper

8½-Year Sentence for American Who Fought for ISIS Is Too Lenient, Says Sixth Circuit

Today in Supreme Court History: May 18, 1860

Open Thread

Memories of a Different Planet: Roentgenizdat

Today in Supreme Court History: May 17, 1954

Open Thread

Today in Supreme Court History: May 16, 1918

Open Thread

S. Ct. Denies Stay of Virginia Supreme Court's Redistricting Referendum Decision

Secret Recording at Pretend Date by O'Keefe Media Wasn't Tortious, Court Holds

Vladeck v. Adler on the Shadow Docket

Georgia High Court Admonishes D.A.'s Office, Over "Vehement" Dissent, for Role in AI Hallucinations in Court Order

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

I WANT FREE MINDS AND FREE MARKETS!

I WANT TO FUND FREE MINDS AND FREE MARKETS

SUPPORT HONEST JOURNALISM

PUSH BACK

HELP KEEP MEDIA FREE & FEARLESS

STAND FOR FREE MINDS

PUSH BACK AGAINST SOCIALIST IDEAS

FIGHT BAD IDEAS WITH FACTS

BAD ECONOMIC IDEAS ARE EVERYWHERE. LET’S FIGHT BACK.

JOIN THE FIGHT FOR FREEDOM

BACK JOURNALISM THAT PUSHES BACK AGAINST SOCIALISM

FIGHT BACK AGAINST BAD ECONOMICS.