. . . by popular demand (this one guy asked about it a few times. . . Really.) I won’t make excuses for the months of radio silence here, but I will note that what they say about blogging is true: posting consistently is the toughest part. It’s not really that tough to write this stuff, but the real truth is that doing nothing requires less effort than almost any alternative, and it is easy to slip into the habit of not writing.
But I am back, and I fully intend to be more consistent this time. I might even be able to get the other great legal minds of Blitz Legal (aka the Blitz Boyz ™(???)) to start sharing some more of their thoughts with the interwebs.
Anyhow, down to business. Quite a lot happened since I last wrote.
On a personal note, I am licensed (as of today) and will very soon be a full-blown member of the Virginia State Bar. I am contemplating writing more about the Character and Fitness process through which I plodded to get here, but for now, suffice to say that I was once a bad boy and the Character and Fitness Committee deferred my licensing decision for a year to give me time to show that I am now a good boy. I did so and have now been deemed fit to practice law, and I can’t wait to get started.
As for the rest of the legal world, I suppose most relevant to this blog is the fairly uninteresting and anticlimactic end to the first round of GPS tracking litigation. In the Jones case, previously discussed here and here and here and here, SCOTUS ruled a few weeks ago that placing a GPS tracker on a car is a Fourth Amendment search. No more. No less.
There is a vast body of internet commentary by this point that tries to get something more from the case. Google it if you’d like to waste your time. But the gist of Scalia’s prevailing opinion is that it’s a search. I suppose I am happy with this decision since it technically expands our Fourth Amendment protections. But it certainly left something to be desired.
Scalia said that the “reasonable expectation of privacy” test from Katz upon which the D.C. Circuit based its mosaic theory is not the only measure of what the Fourth Amendment protects. Scalia wrote about the historical connection between trespass and property law and our protection against search and seizure. On that basis, he declared the physical trespass of placing the device on the car to be a Fourth Amendment search. He did not say whether it would require a warrant or whether it was reasonable. Just that it’s a search
For more structured and in depth analysis, I suggest looking to Orin Kerr’s stuff at Volokh. This piece on Jones in the context of the automobile exception is a good place to start. But if you just want the short version: Placing a GPS tracker on a car is a search. So now the courts just have to spend the next many years filling in the blanks.
As for other legal news, drugs are still illegal, cops are still dirty and just plain mean, and prosecutors still get away with mind-blowing feats of injustice. More on that stuff to come. . .