Smart Microwave

Summary

Divided Argument – "Smart Microwave" (July 6, 2026)

Hosts: Dan Epps and Will Baude
Main Topic: The Supreme Court’s landmark Fourth Amendment decision in Chatri v. United States—geofence warrants, digital privacy, and the continuing evolution of search-and-seizure doctrine for the cyber age.

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Episode Overview

This episode dives deep into Chatri v. United States, the Supreme Court’s major end-of-term Fourth Amendment case, examining the status of geofence warrants, the scope of digital privacy, and the lasting legacy of Carpenter v. United States. Dan and Will break down the key opinions, doctrinal stakes, and practical implications for criminal procedure and technology—and offer up their characteristic blend of expertise, humor, and inside-baseball discussion, aiming to clarify both the case and its place in the broader law.

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Key Discussion Points & Insights

Setting the Scene (00:20–04:40)

• This is a rapid succession episode, taped "the day after the final opinion day" of the Supreme Court term, with Dan noting:
  "If anything happens after Wednesday that really shocks the Supreme Court world, we don't know about it yet." (00:34, Dan)
• Light banter about episode timing, Nina Totenberg’s "embargo screw-up," and Alito retirement rumors.
• Quick detour into follow-up about Justice Thomas’s candor in his memoir, especially regarding possible prior marijuana use—cited as an example of judicial forthrightness.

Supreme Court Housekeeping & Geofence Warrants (04:40–12:00)

• Discussion of end-of-term cleanup orders and what decisions may still be pending.
• Transition directly to the main event: Chatri v. United States, a major Fourth Amendment, digital privacy case focused on "geofence warrants"—an investigative technique involving law enforcement requests to Google for lists of devices (thus people) present at a specific place and time.

Mechanics of Geofence Warrants (08:09–11:49)

• Police request anonymized location data from Google for all devices within a defined "geofence" (usually set by place and time related to a crime).
• Google (historically) shares a winnowed list, police "narrow down" suspects at each stage before, ultimately, Google provides identities of individuals whose phones were within the fence.
• Example: In this case, a bank robbery—initial pool of 19 devices, then 9, then 3, with further investigation narrowing to the actual defendant.

The Fourth Amendment Doctrine at Stake (12:00–24:42)

• Core constitutional questions:
  1. Was the geofence warrant a "search" under the Fourth Amendment?
  2. If so, was it a "reasonable" search (i.e., did the warrant satisfy particularity and probable cause)?
  3. Must illegally obtained evidence be excluded (exclusionary rule)?
• The Court only answers the first question; this shapes everything that follows.

Precedent & Theoretical Frameworks (24:42–38:27)

Key Cases Reviewed:

• United States v. Jones: Tracking a car with a GPS device is a search (split reasoning: physical trespass v. privacy expectations).
• Carpenter v. United States: Government acquisition of historical cell-site location data is a search (rejects Third Party Doctrine for certain digital records; employs privacy rationale).
• Discussion of the "third party doctrine," holding that information voluntarily shared with third parties (e.g., banks, phone companies) used to lack Fourth Amendment protection—a rule now under significant pressure.

New Paradigms:

• The "Mosaic" Theory: Raised by Oren Kerr, posits that accumulation of individually-insignificant data points can add up to a "search" (as in comprehensive surveillance over time).
• Ongoing debate between property-based/trespass theories vs. modern privacy (Katz) test; Gorsuch’s preference for a "positive law" approach (aka Bowden Stern model: does the official act transgress ordinary legal rights?).

The Supreme Court's Holding in Chatri (38:27–52:55)

Majority Opinion by Justice Kagan

• Strong parallels to Carpenter: Location-history data is at least as sensitive as cell-site data.
• Critically, the Court rejects the "mosaic" theory:
  "Where the Fourth Amendment applies, it applies regardless of the quality or quantity of information the government obtains." (paraphrased, ~39:14)
• Even a small quantum of location data, obtained from Google, is a "search"—not just days of tracking, but minutes or hours, and not just for one person, but many.
• The Third Party Doctrine does not apply here, following Carpenter: You don’t lose your privacy simply by allowing Google access to certain data, especially when "consent" is attenuated or practically mandatory.
• Implications: Expands what is considered a search in the digital context; suggests that virtually any law enforcement request for sensitive location data from third parties (e.g., Google, Apple) requires Fourth Amendment scrutiny.

The "Two Big Deals" from Chatri

• 1. Scope of "Search": Small amounts of digital location data count as searches—no more limiting Carpenter to long periods or to "mosaic" aggregation.
• 2. Confirmation of Carpenter’s Staying Power: Five justices (not including the late Ginsburg or Breyer) endorse Carpenter’s approach ("Carpenter people"), and Kavanaugh’s joining is pivotal.

Practical Limits? (52:55–56:07)

• Are geofence warrants now obsolete?
  Google no longer retains this type of bulk location data, so police can’t use this exact warrant. But, as Dan notes:
  "The principle about the anti-mosaic principle is very important to everything, not just geofence warrants." (53:33)
• Similar logic likely to apply to other forms of electronic data stored in the cloud.

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Separate Opinions Breakdown (58:34–81:58)

Concurrence: Justice Jackson (joined by Sotomayor)

• Concurs to note that she (and Sotomayor) would also find these warrants lack "particularity"—i.e., are problematic general warrants.
• Short, intent to nudge lower courts for how to handle the case upon remand.

Concurrence in Judgment: Justice Gorsuch

• Gorsuch forges his own path: rejects "Katz" privacy doctrine, supports property-positive law approach.
• Looks to state law (Virginia) but also generalizes across other jurisdictions before concluding that digital location records are akin to "effects" under the Fourth Amendment.
• Will: "He instead is just asking, is it property? And then once it's property, his search test is just, did you look over or through it for the purpose of finding something?" (67:04, Will)

Dissent: Justice Alito (joined in part by Thomas, and in part by Barrett)

• Meta-critique:
  • Objects that the Court should not have taken the case because the exclusionary rule (good faith exception) will likely mean the defendant loses anyway, making the decision "effectively an advisory opinion."
  • Complains, amusingly, the case is both unimportant (no practical impact on Chatri himself) and too important (dangerously broad implications for law enforcement/policy).
• Doctrinally:
  • Argues this doesn’t follow from Carpenter; would distinguish short-term geofence searches from the sweeping bulk data of Carpenter.
  • Justice Barrett joins these points in part, while writing her own short dissent to clarify she "has no quarrel with Carpenter" but would not extend its logic here.

Notable Quote:

"You are now using [this case] to put into the US Reports in the form of precedent, extensive musings that are very disruptive. I mean, that's not false." (77:39, Will, summarizing Alito)

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Memorable Quotes & Moments

• Dan (01:12): "I refuse to follow it on the grounds that it is stupid." (On Alito retirement/Totenberg rumor-mill)
• Will (15:31): "The Fourth Amendment says, no warrant shall issue but upon probable cause... and particularly describing the place to be searched and the persons or things to be seized."
• Dan (36:13): "In Carpenter, it's one person's location data for a long period of time. And here it's a lot of people's location data for a short period of time."
• Will (39:14): "Does that do enough to distinguish it? And she [Kagan] says no."
• Dan (52:55): "This is important. We're going to get to a point where physical searching just doesn't matter as much, and digital searches are the whole ball game."
• Will (77:39): (Summing up Alito’s dissent): "You are now using it to put into the US Reports in the form of precedent, extensive musings that are very disruptive."
• Dan (82:30): "So, Dan, I think there are two kinds of law professors. Law professors who want the Supreme Court to say more about their area of law, and law professors who want the Supreme Court to say less about their area of law. So it seems like as of the Fourth Amendment, you're in the first camp."

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Timestamps for Important Segments

• Geofence warrants explained: 08:09–11:49
• Doctrinal setup & key precedents (Carpenter, Jones, third party doctrine): 24:42–38:27
• The Supreme Court’s holding in Chatri: 38:27–52:55
• Practical implications & future questions: 52:55–58:28
• Separate opinions (Gorsuch, Jackson/Sotomayor, Alito, Barrett): 58:34–81:58
• Meta-reflections on Supreme Court lawmaking: 82:30–84:09

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Summary of Key Takeaways

• Chatri v. United States is the most significant digital privacy/search-and-seizure case since Carpenter.
• The Supreme Court holds that obtaining any (not just much) digital location data from a third party is a "search," rejecting "anti-mosaic" carveouts.
• The majority affirms and extends Carpenter, signaling a robust modern understanding of digital privacy under the Fourth Amendment—a major doctrinal win for cyber-age privacy advocates.
• The third party doctrine, which used to exempt much digital data from Fourth Amendment protection, has effectively been cabined for location data (and possibly more).
• The ruling applies beyond geofence warrants, setting a broad template for handling digital search issues across technologies.
• Fierce debates remain on what constitutes a "general warrant," whether Carpenter's logic extends to all sorts of digital records, and how lower courts should operationalize these standards.
• The case is also a case study in how modern Supreme Court decision-making can prioritize doctrinal guidance over immediate practical effect, especially in fast-moving technological contexts.

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For listeners wanting the core: This episode expertly walks through how the Supreme Court is (belatedly, haltingly, but surely) updating Fourth Amendment search law for a world where our most sensitive information lives in the cloud—and the government wants it.

Final thought, Dan (83:02):
"I enjoy the intellectual puzzles of these cases, even if sometimes in other areas, the Court is doing stuff I don't love."

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Note: This summary skips ads, intros, outros, and only covers substantive portions of the episode.

Transcript

[A]

Oh, yay. Oh, yay.

[B]

Oh, yay.

[A]

The judicial power of the United States shall be vested in one Supreme Court. Unless there's any more question, we have to find an argument in this case. All persons having business before the honorable

[B]

the Supreme Court of the United States are admonished to give their attention.

[A]

Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.

[B]

And I'm Will Bode. Dan, I like this part of the summer where our unscheduled means we're actually releasing a lot of episodes as opposed to just disappearing and making people delete the podcast.

[A]

Yeah, I mean, if we were always. If we always had long delays in between episodes, it would start to seem like a schedule. We've got to do this sometimes to leave people guessing. So, yeah, this is our third recording session in three days. This is Wednesday, the July 1, the day after the final opinion day. We're probably going to not release this one for a little while. So if anything happens after Wednesday, that really shocks the Supreme Court world, we don't know about it yet. So, like Justice Alito's Friday retirement announcement. Are you following this continued fallout from the Nina Totenberg screw up?

[B]

I refuse to follow it on the grounds that it is stupid.

[A]

It's funny, though. It's like, stupid in a way. That's funny. Okay, I like funny, which is so. First of all, some people are claiming that Nina broke an embargo, that the news had already been announced to journalists. But this is supposed to not be shared until Friday, which is preposterous.

[B]

I mean, look, if that's true, we'll be embarrassed.

[A]

Or we'll just put this episode on the cutting room floor. We'll just skip right to the substance. And then one theory was that Justice Alito did this just to own the libs by embarrassing, deliberately embarrassing, a famous liberal Supreme Court journalist.

[B]

Oh, I like that one.

[A]

Yeah, it doesn't make a ton of sense. Okay, but maybe we will be proven wrong, but I don't think we're.

[B]

Justice Alita does have this story he sometimes tells in public events about embargoes. Do you know the story that he was visiting with the Canadian Supreme Court or some other country's Supreme Court where they were describing how the way they handled the press is that they invite the press into a room half an hour before the decisions issue and explain the decisions to them and talk to them about the decisions and embargo it until the court then announces the decisions. Then that way the press corps is more Informed and can, et cetera, et cetera. And I once heard Justice Alito say at a public event that he liked this idea until he found out that later they have to let the journalists out of the room.

[A]

Yeah, I think I've heard this, but I've forgotten that one. Yeah, actually, that seems like not a bad system. I kind of like it. Okay. Well, given that, I think less than 24 hours have transpired since our last session. Luckily there hasn't been much news. I did have one minor piece of follow up, which I'd said Justice Thomas said he did not use drugs. I was at the point in his book where he was talking about his college years and he said no. Then I got to the point where he was talking about his judicial confirmation and he said the following thing. He said he didn't think he did. He couldn't rule out the possibility he had used marijuana while drunk at one point. He couldn't rule that possibility out. So out of abundance of caution, he said in the confirmation process that he had experimented.

[B]

So he sort of over cautiously confessed.

[A]

Yeah.

[B]

That's interesting. You don't hear a lot of that.

[A]

It's a fascinating book. I've just gotten to the key moments, the kind of Anita Hill part of the book, and it's fascinating. I mean, it's just way more frank than any other justice I think would be in a work like this. Yeah. Okay. Did anything else happen between 5:30pm Tuesday and 10:52am Wednesday that we need to talk about?

[B]

I don't know, Dan. I haven't been paying attention. I've been trying to read this case you wanted me to talk about.

[A]

Is there going to be another round of cleanup orders?

[B]

Oh, yeah, there should be. Right?

[A]

I think usually there is one. Not the same day as the opinions come out.

[B]

Right.

[A]

Isn't there usually one later in the week?

[B]

Yes. So yesterday, the day of the final opinions, I noticed there were cleanup orders like GVRs or not in light of Slaughter and Landor and Monsanto, but we haven't yet gotten. There should be some GVRs or not in light of birthright citizenship, BBJ. So those ought to be coming out.

[A]

Yeah. So maybe later today. Maybe later in the week.

[B]

Yeah.

[A]

Okay. So I think we should just get to substance in record time. It's not even five minutes into the recording. We might just go straight to the main event.

[B]

Okay. I'm not sure if it's a record, but okay.

[A]

Yeah. Chatri versus United States.

[B]

All right. This is one of these Fourth Amendment cases. You like you do, too.

[A]

You wrote a whole article about the Fourth Amendment, and there's stuff in this case that directly speaks to that.

[B]

All right, all right.

[A]

Okay. This is, at least in terms of people who teach criminal procedure investigation, as I do, and as I will be this coming spring, I think this case is a pretty big deal. And I think it's a case that is going to have some pretty significant ripple effects throughout Supreme Court doctrine when it comes to searches and seizures involving electronic data. So where to start? So this is going to be a majority opinion by Justice Kagan. She's got the Chief and Justices Sotomayor, Kavanaugh, and Jackson with her. We're going to have a concurrence by Justice Jackson, joined by Justice Sotomayor. We're going to have a concurrence in the judgment by Justice Gorsuch, who's got his own way to do things. We've got an Alito dissent in which Justice Thomas joins in part, and Justice Barrett joins in part, and then a short Barrett dissent.

[B]

Right. And different parts, just as I understand it, we'll get into the. Yeah, but different parts.

[A]

We want to break down exactly which parts and try to figure out why momentarily. Yeah.

[B]

So that means the majority opinion by Justice Kagan has five votes, but only five. And then she has Justice Gorsuch along for the judgment, but not the opinion. So she needs everybody. She's got to make whatever she's making.

[A]

It's a closely divided court.

[B]

I would say that's got to feel good if you're Justice Kagan. Right.

[A]

Yeah. No, it's a good get for her.

[B]

End of the term, five justice majority making an important impact in an area of law where the court only decides one case a decade. Yeah.

[A]

Okay. I think this is good.

[B]

Congratulations. Just kidding.

[A]

I think this one matters.

[B]

Okay. What's it about?

[A]

This is about geofences, specifically. This is an investigative technique that police have been using. So they know a crime occurred at Place X. Right. You know, a crime occurred, you don't know who did it, or maybe you have suspicions, but you don't have anything that would be sufficient to let you go search that person's house, say. But usually they don't even know who did it. Right. They have no leads, and so they go to Google. And interestingly, Google no longer retains this data in the same way. So I think, as I understand it, these kinds of warrants wouldn't work anymore, this kind of investigative technique. But as it did work, you would go to Google, and Google at the time has this feature called location history, where if you have it turned on, on your phone, it will kind of just show you a real time accounting of where you went over the course of the day based on GPS data. And so they would say, hey, just give us everybody, look at all your location history data and tell us everybody's phone who was in this location at this particular time.

[B]

And it's the assumption that functionally just about everybody has used Google. And so we're all being tracked by Google specifically.

[A]

Well, I don't think you need to assume everybody, but I think you assume that there's a pretty good chance. And so it's better than nothing, right? I mean, if the person doesn't have a phone, in this instance, there was a bank robbery and there was footage of the suspect using a phone on his way outside of the building. So they knew the guy had a phone. Right. I mean, they didn't know for certain it was a phone that had Google on it. Didn't know for certain whether he had location history. But a lot of people have this. Right? And so at least it's going to give you potential leads.

[B]

Right. Also, I think at this point, functionally, everybody has a phone. Like more than 90, more than 95% of Americans have smartphones. Now maybe among people who are committing bank robberies, maybe those people disproportionately leave their phone at home or remember to turn off location tracking. Although I'm not sure it's true.

[A]

Yeah, okay. Bank robbery is a crime with a high detection rate, high clearance rate. So I think probably not.

[B]

My understanding is not the best. The old joke that Willy Sutton said, why did you rob banks? Because it's where the money is. My understanding is it's actually a bad joke in that for the most part it's hard to get into the vault where the money is and it's an easy place to get caught. Okay. And to clarify one thing that I will confess has confused me for years before I started paying attention to this case. There is no geofence, there's no place, there's no physical fence and there's not even a virtual fence. A geofence is just a metaphor for when the police draw a circle on the map and say, we want to know who was here in this time period.

[A]

Yes. Within this perimeter, basically. And so there's this multi step process. I don't totally understand this process. So here's how it's described. Step one. So basically there's. And these are issued pursuant to a warrant. Right. And so we'll talk about that complexity in a minute. But basically, step one, Google produces anonymized location data for all cell phones within the geofence in this timeframe. So it was timeframe that was set 30 minutes before and 30 minutes after the robbery. Okay, that's step one. Step two, this is on page seven of the opinion. Police officers would attempt to narrow down the list of devices by reviewing the timestamped location coordinates for each device and comparing that against the known time and location information that is specific to this crime. I really don't understand what step two is doing because I thought the whole point of step one was to figure out what phones were at the crime. But maybe they're looking at it in a more granular way because the GPS gives you fairly close physical proximity information. Okay, so that's a narrowed list where Google comes back and gives additional anonymized data, cell phone locations both inside and outside the geofence during a longer time period. So now we're going to go an hour before the crime and an hour after the crime.

[B]

Yeah.

[A]

Okay. And then at step three, police again attempt to narrow down the list by comparing this additional information regarding travel and time against the known time and location information that is specific to this crime. Again, I don't totally know what that information would be. And then Google comes back and gives over the names of the phones that satisfy after that winnowing process. And so here it was 19 users. And then second stage, it was nine users. And then the third and last step, it was three users. And then the police, that list of three people.

[B]

Right. Then further police work ensues. Now, I take it, do you think that what they've done so far, just like getting the three people, would that be enough for probable cause to search the houses of those three people to see if you have any stolen money?

[A]

I would like to think. No, really, I would like to think you would do it a little bit more. Basically, all that information would show you that this person was at.

[B]

At the bank while it was robbery.

[A]

Yeah, I think that if, at least if I was being thorough and haven't gone back and looked at exactly what the additional investigative steps were, you'd want to have a little bit more, right, to go to the, like, you know, maybe, but it's kind of like one of those probabilistic evidence questions, right? Which if you know with certainty that one of three people committed the crime, is that sufficient? If you know it's one of five people, like Windows, Well.

[B]

And you agree, if you knew that one of three. If you knew this phone was the bank robber's phone and there's a one in three chance it's Chatri's phone, that's got to be probable cause, right? Probably.

[A]

Although, I mean, I don't think. I mean, I think probably because probable cause is definitely less than 50%. It does seem a little bit awkward to say we're going to go get search warrants for three different people. Right.

[B]

It's awkward to get search warrants for three people saying we know that two of these search warrants are for the wrong person.

[A]

Yes. Yeah, that's sort of what I'm saying.

[B]

We don't know which one. But if it's less than 50%, that's got to be entailed by it, right?

[A]

It does. Although I just think that normally you'd want each one to be evaluated on their merits. And so you'd go to the. Maybe it's the fact that you're doing it. If you walk through at once. That's the thing that's making me feel uneasy.

[B]

Right. I mean, maybe you instead have to say, we have some hunch, even if it's very fishy, that this is the best of the three.

[A]

Yes.

[B]

Okay, we tried that one. Didn't work.

[A]

Yes, I think then you're good.

[B]

Let's try the next one. Okay, what happens next?

[A]

Okay, so then we're just going to skip ahead. This guy Chatri is indicted for robbery, other offenses. He moves to suppress this information obtained from Google. And I think also there would be some further implications if that information is suppressed. There would be some further follow on effects about other evidence that might be suppressed. He says that this was acquired, this information was acquired as part of a Fourth Amendment search and there was a warrant. A lot of times in these Fourth Amendment cases, the government is saying, well, it wasn't a search at all. Fourth Amendment isn't implicated. So it doesn't matter that we didn't have a warrant here. There was a warrant. But there is this further argument that the court is not going to reach, which is that this warrant is invalid because it's what we call a general warrant. General warrants were these things that were given to customs inspectors and the like during the founding era, before that made the founders really mad. They were just basically these like get out of jail free cards that would say to these inspectors, constables who were acting on behalf of the ground, you know, go search wherever you want and because you have this special general warrant, nobody can sue you. Right. And we know Whatever the Fourth Amendment is supposed to do, we know it's supposed to not let that happen.

[B]

Right. But we know the thing that makes that warrant not general. Right. So the Fourth Amendment says, no warrant shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons who thinks to be seized.

[A]

Yes.

[B]

So you can get a warrant that's not general if it particularly describes the place to be searched. So if I say I want to search the University of Chicago Law School because I have probable cause to believe that the thing I'm looking for is at the University of Chicago Law School, then that's not a general warrant.

[A]

Right. Well, it might still not satisfy particularity if you were to say, I want a warrant to search the backpacks of every single human being inside the University of Chicago Law School.

[B]

Well, so why is that?

[A]

Which might be hundreds of people.

[B]

Well, so maybe if I need a warrant for the backpacks. I haven't established probable cause as to each backpack, but if I just said, look, somebody stole the treasure and they took it to the University of Chicago Law School, and it's somewhere in there. I saw the treasure go in and I've never seen it come out, so it must be in there somewhere. Is it just that it's too big a place, it's not particular enough?

[A]

I think that the issue is that it implicates too many people. Right. Because I think the point is, then this isn't a search of the geofence. It's a search of the private data of potentially hundreds of people.

[B]

Okay, but why?

[A]

I think that's the issue.

[B]

Okay, but the Constitution says it refers to the place to be searched and the persons or things to be seized. So if it's a search warrant.

[A]

Well, I mean, I don't think you could have a warrant. That said, we're going to go to this office building and we're going to search every single person who's there, and we're going to list the names of every single person in that office building.

[B]

Okay. Because that's not particular.

[A]

It's not particular. And also, there's certainly not sufficient probable causes to any given person. Right. In that world. We're just like, we know the bank robber is in this apartment building. We saw him go into this apartment building.

[B]

Okay.

[A]

He's One of the 200 people in this apartment building. Don't know which one, but just give us a warrant that would let us search everybody. Now, you can, but if it were

[B]

a room, a single room that were a crack den and you got a warrant, search the crack den. And while we're in the crack den, we would like to search all the people in the crack den to see if they have crack.

[A]

So there's actually a case that's kind of like that called Ibarra versus Illinois. I don't know if you came across this one back when you were writing your sole Fourth Amendment article. So this was a case from 1976 where the police had a warrant to search a tavern and the bartender at the tavern for evidence of heroin trafficking. And the police went there and then they used this to search not just the physical building and the bartender, but they actually searched all of the customers as well.

[B]

Is that allowed?

[A]

The court said no. The court said that was no good.

[B]

Now, if they've been searching them for alcohol, would it be different? Because a tavern is not a crack den. Could you just presume that the customers in an establishment selling X are there? Quite possibly, Quite probably. The.

[A]

Is this in a hypo where it's a prohibition error or something?

[B]

Yeah. Or there's some reason to believe the alcohol is elemental crime or evidence of a crime.

[A]

It's possible. It's possible. I mean, I think then, I mean, part of the problem in Ibarra is that the warrant didn't specify. But I think part of the problem is also that there just wasn't. You can't just assume that everybody there has evidence of the crime.

[B]

Okay.

[A]

So part of the reasoning there was that probable cause finding. Right. When the search warrant, the court says search warrant was issued, there's not probable cause to believe that any person found in the tavern was violating the law.

[B]

Right.

[A]

They say maybe they're. Look, maybe there's more. They say maybe they could have alleged that patrons had been seen buying drugs or things like that. But I think clearly here there is not probable cause that every phone, the owner of every phone who is in this geofence is a bank robber.

[B]

Right.

[A]

And in fact, I think it's certain, almost certain, that they're not. Right. I mean, we know there was one guy, we saw him.

[B]

Right. And even if you think one out of three maybe definitely not everybody in the jail fence.

[A]

Yeah, it turned out to be 19 on the first cut, but it could have been 200. Right. At that stage, that initial stage, the police don't know how many it could be. So is it a true old style general warrant that lets you search anywhere all the time? No, but that doesn't mean that it's okay. Right. It still Might be. It might be just too general.

[B]

Yeah. Okay. The establishment in nbara, by the way, appears to be the Aurora Taphouse still exist.

[A]

Is that near you?

[B]

It's on the south side. Well, it's in the western suburbs of Chicago. It's not that near. Google Maps seems to think it's still there. So next time you're here, we should do a field trip.

[A]

Yeah, let's get all your students. Yeah. It's fun because when I teach investigation, there are some locations that are in St. Louis, including one case where there is an apartment building with the actual address named in the opinion. And I had a student once who was like, oh, yeah, I used to live in that building. And another student who went and just took pictures of it. So always kind of fun. So if we have. By the way, if there's any Chicago area, Chicago land listeners who want to just go check out the Tavern, the Taphouse for us, send us some pictures and. Or a report. We will report back on that on the next episode. So think about it.

[B]

Okay.

[A]

Okay.

[B]

So there are three questions you could ask, right? One is, was this a search?

[A]

Yeah. And if it's not, that's the end. Basically, the police. If it's not, the police can do it whenever they want without the Fourth Amendment having any problem with it. Maybe you could. Maybe there's something else wrong. But if it's not a search and it's not a seizure, that's the end of the story.

[B]

And the next question you could ask is, okay, if it is a search, is it an unreasonable search because it violated particularity or whatever? And then the third question you could ask is, should this evidence, even if the evidence is illegally seized, should it be excluded from the criminal case? And all those are real questions. You could think it's a search, but it's a lawful search. Or you could think it's an unlawful search, but we should admit it anyway.

[A]

Yeah. And there is a very good chance that that third thing is the correct answer. Right. Because there is this doctrine called the good faith exception that functionally says that unless it's kind of clear that the police were doing something, or at least should have known they were doing something that violated the Fourth Amendment at the time, the evidence can still come in. So let's say the police are relying on old Supreme Court precedent that later gets overturned, or the police are relying on a kind of facially valid warrant. So I think there's a very good argument here that however you resolve the first two questions, the evidence should still come in Right.

[B]

And even just like the absence of precedent, the court at times suggested that the good faith exception of the exclusionary rule and qualified immunity from civil liability are similar standards.

[A]

Yeah, I mean, I think it's less clear in the Fourth Amendment context. There's a case, Davis, which friend of the show, Oren Kerr actually argued and did the briefs on, based on some scholarship he had written, where there's an opinion by Justice Sotomayor who sort of tries to leave that question open of unclear precedent or lack of precedent. But potentially, potentially, I mean, I think at least some of the conservative justices putting. Even if they're. We're not getting rid of the exclusionary rule, some people just don't like the exclusionary rule. And you know, it is kind of made up, but they would say, look, it only should apply if it's going to apply at all. It only should apply where in situations where any officer should have known this violated the Fourth Amendment.

[B]

Right.

[A]

And that's not the case here. That is not the case here. I mean, I think the law here is sufficiently unresolved up in the air that this was a viable argument that this doesn't count as a search. I think that's wrong. And I think that the precedent, on balance cuts in favor of being a search, but it's certainly not crystal clear. So this guy may still lose. And you know, to be clear, the court. You just said there's three questions. The court is not going to resolve two or three of them. The court is only going to address the first question.

[B]

The court, as I understand it, granted cert on questions one and question two. Granted cert on the lawfulness of the search, which could include whether it is a search and whether it's lawful and already carefully fenced out of its grant of certiorari. The exclusionary rule question, presumably, because if they took the exclusionary rule question, they then it's going to be impossible to cobble together a majority that think it's a search.

[A]

Yeah.

[B]

So that was good. That was clever lawyering.

[A]

Yeah. And so to be clear, the question that they granted could have incorporated both of those things. Was it a search? Is the warrant good? Right.

[B]

And then it turns out once they work on this opinion, that they only have a majority to answer question one. Is it a search? They don't answer question two.

[A]

I mean, maybe they do have a majority, but maybe they just don't want to get to it or maybe, I mean, we don't know. Right.

[B]

Well, they do not produce to us a majority that is willing to answer that question. And they produce to us some members of the majority who are. Which it would have been easy if all five members of the majority were getting ahead, if all five members of the majority agree with the expressed views of others. And they could.

[A]

Yes.

[B]

And they didn't.

[A]

Yeah, but we don't totally know why. Maybe there were people who disagreed. Maybe there were people who just said, it's too late in the term. I don't want to think about this, but at least this makes some progress.

[B]

I highlight this also, just again, to. To the Justice Kagan point. I think getting a five justice clear ruling on anything in this area seems impressive. And to do that, she has to make a bunch of choices about what not to reach and how to get there.

[A]

Yeah, I'd love to know whether there was an initial draft that reached those questions or not. Or maybe they just decided at conference not to reach those questions. Hard to know.

[B]

Okay.

[A]

And should we just give people an overview of the precedent here?

[B]

Well, now we should talk about Carpenter. Is that what you mean?

[A]

Yeah, that's where I was going to go. Maybe I could step back one step before that. Yeah, you should step back just to talk about Jones.

[B]

Sure.

[A]

Okay. So there's one other kind of GPS case. There's older cases about these things called beepers, which are kind of like very primitive GPS that kind of send out these radio signals and you can sort of track them. I don't think we need to talk about those. But there's a more recent case in the more recent, and as far as these things go, called Jones from about 20 years ago, a little bit less than maybe 15, 20 years ago, where the police had physically installed a GPS tracking device on a vehicle without a warrant and used it to track the suspect's movements for weeks. And the question was, is that a search there? The court, four justices said it is a search because it was a physical trespass. There's actually two different tracks of Fourth Amendment jurisprudence. We'll come back to this in a second, one that focuses on these traditional physical trespass concepts and the more dominant one, which has been around for the last 60 years or so, the Katz test, which isn't focused on principles of trespass, but is instead focused on privacy. And then, so you had four justices, led by Justice Scalia and joined by Justice Sotomayor. So they had a majority who said it's a search because of the trespass.

[B]

Didn't Scalia have five for that proposition?

[A]

Well, that's what I just. That's right. That's just what I said. Four, joined by Justice Sotomayor. She provides the fifth vote. So they do have five for it. But I'm gonna. Sotomayor's a little complicated, so I'm gonna get to her in a second.

[B]

All right, fine.

[A]

And then there were four justices led by Justice Alito, who said, this trespass thing is stupid. We should just decide this cat's privacy test and hear basically what the police did involved tracking this person for a long enough time that it seems kind of like a search does. And then Sotomayor, sort of in the middle, she says, I'm gonna go along with the property thing. That makes sense to me. But basically also endorses the privacy thing. So she does kind of both, but formally, the majority opinion is the property thing. Okay, but you can count. I think you can count five justices there who also buys the privacy thing. Okay, so that's step one. Step two. Carpenter. Right. I don't know if you want to take Carpenter.

[B]

Sure. Otherwise, do we also need step zero?

[A]

You always need a step zero. Whenever you're doing a legal analysis, you've got to identify step zero. I think step zero. I mean, now we're like, you need step minus one sometimes. Sorry, what is step zero?

[B]

Step zero would be, before the cyber age, there was something called the third party doctrine, which says in lots of circumstances, if you have information or documents or whatever, and you give them to somebody else, then you don't have any reasonable expectation of privacy in them anymore, even if you are, in fact, quite upset to learn that that other person has been searched. So your bank records, which you might have thought were between you and your bank, can be obtained by the government without it being a search at all, because.

[A]

Yeah. No Fourth Amendment problem with that at all. Right.

[B]

So essentially, the fourth Amendment, the pre cyber age fourth Amendment, inculcated the principle that two can keep a secret only if one of them is dead. If you tell another soul you've given up your privacy.

[A]

Yeah. Deeply controversial, deeply, heavily criticized rule. Right. Okay.

[B]

And so one of the questions arising out of Jones privacy and then the increased amount of data sharing and transformation in the cyber age is how all that applies to data.

[A]

Yes. And so the Jones case, the problem with it is that if you just do the physical trespass rationale, there's lots of things in the 2010s and 2020s that the government can do that don't require that involve getting the same amount of information, but don't involve any kind of physical trespass. Basically. Now, all of our Data that we care about is stored not just on our phones, and we can be tracked not just using a physical GPS device, but using the cloud. Right. You could just go to Apple, go to Google and say, hey, you've got gps. Where's this person? Or you could go to Apple and say, what are this person's emails or text messages? I mean, basically all of this stuff is no longer physically held by you. You might have a local copy on your device, but it's also going to be elsewhere. So that seems like a problem. Right. If we're going to follow that doctrine all the way to its conclusion, that might leave us with not a ton of digital privacy, because we have all voluntarily consented to letting Tim Cook and Mark Zuckerberg and Jeff Bezos and all these folks host our most intimate information on their servers.

[B]

Right. But only because I was fine when it was just Mark Zuckerberg and Jeff Bezos and Tim Cook doing it. But when I learned that it's the government doing it, then I might feel differently about it.

[A]

Yeah, okay. Okay. So that's the third party doctrine.

[B]

So then in Carpenter, the court has a case in 2018, the court has a case about whether it is a search under the Fourth Amendment to access historical cell phone records that provide a comprehensive chronicle of the user's past movements. Yeah.

[A]

And these are not gps, so they're not quite as accurate as gps. But what they are is data about

[B]

where, what cell phone tower you were near. Right.

[A]

Yeah. So you can kind of look at someone's account and be like, okay, on August 20th, what Towers was this person connecting to? And like, well, they were connected to this tower on 13th street, and then five minutes later, their phone switched over to the tower on 17th Street. And you can get, you know, a pretty good account of the movements of that device using this data.

[B]

All right, so. And there the answer was yes, in an opinion by another 5 4. That opinion by Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.

[A]

Yep.

[B]

And then with dissents at the time from Kennedy, Thomas, Alito and Gorsuch.

[A]

And there, the court does not go down a property path. It goes down a privacy cat's path and sort of says, look, when the government goes and gets this information that you have an expectation of privacy in that information. We don't care that in some sense you're voluntarily disclosing it to the cell phone company by using your phone. We don't care. We're not going to apply the third party doctrine to this. That is a search. It's five, four. But Justice Gorsuch has this weird dissent where he is deeply sympathetic to the Fourth Amendment interests here. And it's like, oh, this is. If we start, go down this path, and if we were to follow the third doctrine, we'd have no privacy. But he doesn't like the Katz test. He says, I want to keep doing this property approach, maybe a more general kind of positive law type approach, which is an approach that you've advocated with James Stern in your scholarship. He dissents because he says, the parties didn't give me enough to work with here. Carpenter, you should have made better arguments to me. And next time, someone should make a better argument. So I'm going to dissent. Do you want to just quickly give people your positive law model?

[B]

Well, sure, we can do it somewhere. So Justice Gorsuch, in his dissent in Carpenter, says the third party doctrine is dubious. Okay, sorry. So one way to think about this that James Stern and I argued for in an article written 10 years ago now is to ask, in a way, to try to unite the property model, the trespass model, aspects of the privacy model, aspects of lots of different models, by asking instead the question, are the government officials doing something that only government officials are legally allowed to do, or are they doing something that anybody can do? So the thing we argued that made property a paradigm case of a lot of early Fourth Amendment cases is that normally people can't come in your property without your permission. And yet when it's the police saying, no, you got to let us in because we're the police, that's the kind of thing that has to have a warrant, not because property is special, but because legal rights are special. And so if you had data that was shielded by something other than property, and the police were doing the same thing, saying, knock, knock, custodian of the data, you got to let us in because we have a warrant, that would be a search just as much. And it also lines up with what warrants were. Part of what a warrant was was some kind of immunization or authorization from the ordinary rules of law. Like you got a warrant in part to stop people from suing you later and saying what you did was unauthorized. And so we try to develop sort of historically, textually, logically, et cetera, the idea that what the Fourth Amendment is doing is regulating the dispensation of special exceptions from the law to the police. Okay, Those have to be reasonable.

[A]

I think it's a great article. I think it's the most important Fourth Amendment article. Written in the last decade or two. And the thing that's interesting is Gorsuch looks at it and he sort of says, look, there's a lot of unanswered questions about a kind of property type approach. Do you look at the rules from 1791? Do you look at. Do the Bowden Stern thing and look at what the rules are today? I'm not really sure. We need to start figuring this out. Yep. Okay. So he doesn't have all the answers. That's the setup. I'm going to come back to this once we get to his opinion in this case.

[B]

Okay.

[A]

Oh, can I say one other thing about Carpenter, which is that the court says in Carpenter it is a search. The court does not tell us exactly when it becomes a search, because the court doesn't say it's a search instantly when the government obtains this information. We're just going to say it says we need not decide if there is a limited period for which the government may obtain an individual's historical cell site location information free from Fourth Amendment scrutiny, and if so, how long that period might be. It is sufficient for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth Amendment search.

[B]

Okay. And so just in terms of. In Ludde terms, tell me if this is wrong. In Carpenter, it's one person's location data for a long period of time.

[A]

Yes.

[B]

And here it's a lot of people's location data for a short period of time.

[A]

Yes.

[B]

So the question is just if 1 times 7 is enough to be a search, whether like 41 times 0.5 is also enough to be a search.

[A]

Yeah. And the thing to note about what Carpenter does, and it's similar to what Justice Alito wanted to do in the Jones GPS case, is it's something that Oren Kerr has, I think, usefully described as the mosaic approach, which is to say, look. But there seems to be. He's not endorsing this, but he sort of says there seems to be this approach that's on the table where the court might say, look, any one of these things in isolation isn't a search. But once you start racking them up, start building out the mosaic, Byzantine style, it starts to become searchier at a certain point.

[B]

Right. And the government doesn't like this. The government wants to say, look, if we just had a guy hanging out near the bank looking and seeing who was there one at a time, that wouldn't be a search. And so under Carpenter, you'd also tell us that accessing one person's data for an hour, maybe it's not a search. And if one person's data for an hour is not a search, then two person's data for an hour is not a search. And three and four, and you just zero plus zero plus zero plus zero equals zero. Whereas the mosaic theory is like, actually, there's 0.01s. And so when you add up enough of them, they eventually make a number

[A]

or picture that you worry about. Yeah. And so that opinion very much leaves alive the possibility that this mosaic approach is a real thing. Right. Okay. I think that's a lot of setup, but I think it's the right setup.

[B]

Okay, okay. So armed with Carpenter, is Chatri just Carpenter or just an extension of Carpenter?

[A]

Well, I mean, it's obviously not for the reasons you just described. Right. It's a different. First of all, it's a different type of data, It's a different time frame, and it's physically constrained in a way that the Carpenter search was not. But Justice Kagan is going to treat this as somewhat dictated by Carpenter, but then is going to go beyond Carpenter and I think in a very important way.

[B]

Okay, so dictated by Carpenter. So first she says, look, cell site. These two kinds of location data are very similar. And if anything, this location history is even more intrusive than before, provides more data.

[A]

Can you actually show what floor on a building you went to can narrow you down to a smaller kind of square foot range?

[B]

Right. So, okay, it's off for sure on that aspect. It's offshore. Sorori from Carpenter. Then we have the question of what about the fact that it's a short amount of time? Does that do enough to distinguish it? And she says no.

[A]

Yeah, and quite decisively no, in a way that I think shuts the door on a mosaic approach. Right. This is on page 20. So she says a couple things. She says, first, look, even a short period can provide a lot of very intimate data. Still more fundamentally, we have never understood Fourth Amendment protections as kicking in only once an intrusion goes too far. Where the Fourth Amendment applies, it applies regardless of the quality or quantity of information the government obtains. Okay. So I think this means that the kind of question reserved in Carpenter, obviously the court is not saying that 100%, but I think it means that any amount of cell site location information would be a search as well.

[B]

Although it's interesting because here she's projecting the mosaic theory sort of in the other direction. Often the mosaic theory is articulated by people who say, we've already Held that this little thing is not a search. Does it follow that? Adding up a bunch of those little things, also not a search. And here her examples are just all, well, look at all these little things that are searches.

[A]

Yeah.

[B]

Now, I agree with you. Logically, I think it should work in both directions. But I wonder, will the court still try to use the mosaic theory to distinguish some prior non search precedents?

[A]

Yeah, and I think that it matters because in some of these cases, for exactly the point you just made, the government had wanted to say, look, we could tail you. We could have a police officer follow your car for an hour. That wouldn't be a search because you're exposing your movements on public roadways. That's not a search. So it can't suddenly become a search if we just do that for 60 days or whatever.

[B]

Now, is there a supreme Court case about tailing that holds that no amount of tailing, no matter where on public roads is a search, or is that just something we assume?

[A]

I don't know if there's that case exactly. There is one of the beeper cases where the court said, basically this is a case where the government had contrived to put this beeper in these chemicals that were being used for drugs, but did so in a way that wasn't trespassery. They didn't sneak in and break into the person's car. And so the court said in that case, to the extent the government is just using the beeper to track someone's movements on public roadways, that's not a search. So I think it follows from that.

[B]

Well, the movements might be. So I just wonder because somebody actually tailing you learns more than just your movements. Of course they learn. Imagine this may not be as fanciful as it sounds. Now, imagine that Donald Trump says to the head of the FBI, so. And so is my enemy, and they're annoying me. I want you to follow them all the time, Stick on them like glue with your cell phone camera running. Now, of course, if they go in a private place, you got to wait outside, But I want you to wait there until they come out. And everywhere else they go, go in the public bathroom, I want you to follow them and stand at the urinal next to them, et cetera. And the person, after a week of this, goes to court and tries to get an injunction, get this guy to leave me alone. It's not obvious to me that he would fail, but maybe it should be.

[A]

Yeah, I mean, I wonder whether the problem there is less fourth amendment problem, but maybe kind of like harassment problem or something.

[B]

Well, so at the risk of stomping for the positive law model, again, the positive law model would say, indeed, I think in lots of jurisdictions that kind of extensive and annoying and out of the ordinary intrusive, following somebody even in public often at some point becomes a tort under anti stalking laws and things like that. So at that point that would be a surge. Now, we don't talk about it very much because usually the tailing comes up in cases where it's not that, where the tailing is something that a private person would obviously be allowed to do. And so the courts maybe not thinking about it, just say, oh yeah, sure, your motion's in public. Because in general I'm allowed to be in public looking at what's going on, even allowed to follow you around a little bit and be creepy. But the positive law model would draw on the precedents and law I might already have about when that crosses a line, harder for other methodologies, but that's okay. Okay, so we've established that we followed Carpenter in saying that the data is important. We have transgressed Carpenter in saying that even a little bit of the data is just as important as a lot of the data. And then I guess the last move is this a separate move is the third party doctrine is the court says, now the government's other counterargument is, look, you gave all this to Google. You hit the button on your phone that said share my information. And as in Carpenter, the court says, no, that can't be how it works.

[A]

Okay. And so this has, I think, pretty big implications, right?

[B]

Well, okay, why?

[A]

Because I think it's going to suggest that all kinds of things the government does that involve acquiring private information from a third party, those are now searches. And those are searches like instantly, right?

[B]

Yes. I mean, we don't know exactly what kind of so location information is a search instantly. We still don't know whether other kinds of information are protected. So I guess the government used to be able to try to defend these things on either it's a safe kind of information or it's just a little bit. And now it seems like they're going to have to mostly try to argue on safe kind of information. Is that right? So, okay, your location is very sensitive. But if they just want to know, were you or were you not texting this drug dealer, like the numbers you've texted, maybe they get to refight the battle that's as private or something like that.

[A]

Sorry, say that again.

[B]

So suppose the government wants not Data about your location, but data about whether or not you have communicated with a given phone number. Isn't that another thing they often look for?

[A]

Potentially, yeah.

[B]

Yeah. So post Chatri, they will still be able to argue anyway that that kind of data is not as sensitive as location data.

[A]

Yeah, I mean, there is some. You mean in terms of who, just not the content?

[B]

No, just the fact that's often a kind of data the government often tries to get through. Third party doctrine is, did this person communicate with that person? Did this phone number call that phone number? Not the contents of the call.

[A]

But yeah, there is precedent saying that's actually one of the classic Smith vs. Maryland, one of the classic third party doctrine cases where the court says you don't have an expectation of privacy in the numbers you dial.

[B]

Right. And that might still be true even if you dial them with a cell phone or a computer.

[A]

Yes. And it could be that same principle could apply to the recipient of your text messages, although it's not exactly the same thing. But. So, yeah, I mean, I think that obviously we still need to figure out whether the acquisition of the information by the government is a search, but I think that now we know tracking your location in various ways, I think is a search.

[B]

Right. And do we know exactly why the third party doctrine doesn't apply? So one option would be the third party doctrine doesn't apply to computers and phones because, I don't know, we don't want it to. The court says some things that are more specific, like they talk about how it's not that voluntary because Google's constantly nagging you to turn it on and you don't really have a choice. They talk about. They have several. What everybody does. Do you have a sense of what the. They clearly are rejecting the third party doctrine argument here, but would there be times that you turned your location data over to a third party provider in a way that counts as.

[A]

So I think clearly, yes. So first of all, the court is clearly not overturning the third party doctrine as a categorical matter. The original cases still stand. I don't think the court is saying anytime computers come into play, there's no third party doctrine. Because I could imagine situations where, let's say someone uses Strava, which is kind of like a biking and running app.

[B]

Oh, yeah.

[A]

That you can put online, put your routes and your times. And amusingly, this has been used to accidentally reveal the location of military bases and things because soldiers are using it. And I think even if you're using Strava under a username that isn't clearly tied to you. I think there might be a good argument that you've sufficiently exposed that to the world that you don't have an expectation of privacy. So I don't. I mean, you could make the argument, but I don't think that would conclusively.

[B]

So what about, like Venmo? So what if my Venmo purchase is public, which for some reason they are by default.

[A]

Yeah, I've turned that off. And I love how there's all these scandals where someone is like Venmo underage prostitutes.

[B]

Right. Well, that's just it. Yeah. So I have my Venmo on and then I Venmo somebody and I say, for heroin and some cop notices that. Does Justice Kagan say, well, look, lots of people share their data or we say, no.

[A]

I think that my instinct is that it wouldn't apply there. Right. Because you've shared it not just with the service provider and not just in a way that kind of everybody has to do. But you've gone on social media and exposed it to other people.

[B]

But definitely not self consciously or intentionally. I've just done the same stupid thing everybody does when they sign up for Venmo of not realizing that their purchase history is public. So it's not like I've opted in if that's the relevant test.

[A]

Yeah. I mean, maybe there's some assumption of risk there. Maybe you should have known because you can see every time I open up the Venmo app, it's always like, I see some random babysitter I hired a year ago and paid over Venmo. It shows her paying her friend tequila. And I'm just like, I didn't need to know that.

[B]

Right. Although it's funny, it only shows that to the extent you are friends with other people who have also not turned it off. So either if you don't have any friends yet, you might not see that. And if your other friends are sensible and if all they know not to take notes or not to make their Venmo heroin deals public, then you might not realize.

[A]

Yeah, these are interesting arguments. And so I don't think this case is going to resolve that. But I think that this is something that lower courts will have to deal with. I mean, I do think that going forward, lower courts are going to want to err more in the direction of saying stuff is a search.

[B]

Yeah.

[A]

And it's interesting because for a long time there wasn't really, you know, there was this idea that, you know, government isn't the government isn't doing the searching right here. They're just getting, let's say, a subpoena or something like that. That doesn't really implicate the Fourth Amendment in the same way. Either it doesn't implicate the Fourth Amendment at all, or if it does, Fourth Amendment only applies very loose limits on third party subpoenas. And that is not the case anymore with respect to this kind of data collection.

[B]

All right, so we should talk about separate opinions in a minute because I think I like all of them. You said this is a big deal. And so it seems to me it's a big deal for two reasons. One is the doctrinal point that a little search is just as much of a search as a big search. And so the anti mosaic theory and the small amounts of data thing matters. That's going to be huge because that would have been the most natural way to live a carpenter until now. And the other is just in making clear that five justices in the Supreme Court are carpenter people because the Carpenter majority required some justices who are now gone. That included Justice Kagan and two, Justice Roberts, but did not include Justice Kavanaugh. So until this opinion came out, you might have thought the only way to get a sort of majority on carpenter issues is for them to find their way to Justice Gorsuch or Justice Barrett. And we don't need to know what Justice Sparett thinks. And Justice Scorsic is just going to have his own views. And so Justice Kavanaugh's willingness to join in full, a sort of full throated application of Carpenter is also just, you know, and good.

[A]

I mean, I'm not against it.

[B]

Just a big deal.

[A]

Yeah, I think it's very good because I think the court is good for the court to recognize that if you keep trying to mechanically apply some old rules to, as you use the phrase, and as Justice Kennedy liked the phrase, the cyber age, the fourth Amendment isn't going to be worth much. And that's also something that Justice Gorsuch believes and has said, although he's going to have a different solution to it. So, yeah, I think it's good and I think it's going to tell lower courts, look, you need to start with cats. You need to start with privacy. And whatever you physical world, pre digital world rules that you were going to apply, you need to not reflexively apply those. And you need to say basically, is the government getting this information? Is this really intruding on someone's privacy? And you can't just say third party doctrine, you can't just say short amount of time in the court. There are five justices who care about this, who are worried about it. So yes, big deal.

[B]

Okay? And now two things people have said to me who told me this was not a big deal. So I just want to run them by you so you can tell me why they're wrong so I can tell them. One thing they said is there are no g offense warrants anymore. It's a dead practice. And there's a footnote about this that Google's the main person, the main entity that responded to these. And Google now doesn't have my location history anymore. They've stuck it all on my phone so that they can't be asked for it. I take it the answer is, well, that's fine. But the point is, the principle about the anti Mosaic principle is very important to everything, not just geofence warrants.

[A]

Yeah. I mean, if the court decided six Fourth amendment cases a year, you might say any given case is just about that narrow fact pattern. But the court decides a case of this magnitude in the fourth Amendment like once or twice a decade. And so lower courts should be following the reasoning where it leads. So, yeah, geofence, maybe not, but there's tons of other things that might look like this. And so I think that now there are other devices and other pieces of software that people might own that might be storing that data on the cloud. So, for example, I have the Volvo app for my cars, and it has location history on it, and I can sort of see where my car was over the last week. I don't know where that information is stored. I believe it's stored on the cloud. Right. Because when I switch to a different. To a different phone, the information is still there.

[B]

Yeah. Other than my phone, which I made my piece with, I try to turn off all these things. We don't buy smart devices. It's very hard now to buy a microwave. It's not smart trying to talk to the cloud for reasons that are unknown.

[A]

You're sort of more worried about this stuff than I am. You won't use face ID on your phone because you're worried that. That the government might be able to.

[B]

The Fifth Amendment applies to your passcode and not to your face stand.

[A]

That is not a settled. That is not settled.

[B]

No, but that's obviously the right answer, isn't it?

[A]

No, I don't think that's the right answer at all. I think that's the wrong answer. I think the Fifth Amendment applies to testimony where you're being asked to say something that conveys information. So I think that the Fifth Amendment applies to the extent that you handing over the passcode functionally testifies to the fact that you know the passcode. But in a situation where we can independently establish that you know the passcode, and the only question is, do you have to give it up? I don't think that's a Fifth Amendment problem at all. I think that's actually proof that clear.

[B]

But how will they ever establish that I didn't forget the passcode?

[A]

Well, so first of all, the fact that, you know, the passcode might not be something that's going to be used as evidence in any way, right?

[B]

No, but I just mean, suppose they say you have to unlock your phone now, and I say, I don't remember the passcode.

[A]

Well, I mean, that's a separate question. Right. I don't think that makes it a Fifth Amendment violation. I think that might make it a question for contempt.

[B]

Right. Okay. Putting aside the Fifth Amendment, I guess what I mean to say is you have forgotten your passcode, but you can't forget your face.

[A]

That's true. I mean, you could risk civil contempt and just spend forever in jail because you refuse to give your passcode and you insist that you don't know it

[B]

even though you've really forgotten it. You may have, but I've forgotten a lot. I want to say, Dan, I have forgotten most of my passcodes to your phone.

[A]

I don't believe that. I don't believe you routinely forget your phone passcode.

[B]

Many of my devices I can no longer log into, and so I just. You have to use the various recovery.

[A]

I believe that is not true of your iPhone.

[B]

Well, we'll see.

[A]

I believe that has never happened with your iPhone.

[B]

It has happened regularly with my iPhone. It may not happen.

[A]

Don't you use your iPhone like, 20 times a day? I mean, we text all the time.

[B]

Well, you wonder why I'm slow sometimes. Dan, I don't believe this.

[A]

I don't believe you're just trying to set this up for future litigation.

[B]

I'm not saying it's happened at this instant. I'm just saying it does regularly happen.

[A]

I don't believe that. I'm going to speak to Judith about this and see what.

[B]

Dan, I have more enemies than you do, so I have reasons to take this seriously.

[A]

That's true. You were a prominent Trump critic.

[B]

All right, so the other question is, what about the Stored Communications act, which does not seem to be mentioned here, which I vaguely recall is a statute that does A lot of this stuff, so I've heard it said. Oh, this is pretty silly because all the court is doing is saying the Constitution requires what the Stored Communications act already requires. And since nobody will ever change the Stored Communications act, it doesn't matter. Is that true?

[A]

I don't think that's correct. I think that in Carpenter, the government had complied with the Stored Communications act, but its requirements are less demanding than a traditional warrant.

[B]

Okay, but in Chatri, do GNFS warrants comply with the Stored Communications Act?

[A]

Well, I don't think we know because I don't think we know have any idea whether even a regular warrant would be okay here. Right.

[B]

Okay.

[A]

So I don't know. I mean, I think it's unclear.

[B]

Okay.

[A]

And sometimes the government doesn't use the Stored Communications act, but my understanding is that it does impose a process for the government to get this information, but it is less demanding than the traditional warrant requirement.

[B]

Okay, so it's possible that now that we said this is a search, even though we don't ask the next question, it's possible that in Chatri 2, somebody will say, even though the Search Communications act also requires something before you can get this kind of, you know, a geofence warrant, it's not good enough as a constitutional warrant, and thus it like, requires more than the Stored Communications Act. Is that okay? Are these even stored communications? This is part of what I don't even understand.

[A]

Yeah, look, I'm not deep into that statute, so I don't know.

[B]

All right, fine. Okay. Shall we talk with other opinions before we have to go? Yeah.

[A]

And there is something from the majority that we're going to want to circle back to once we deal with the dissent.

[B]

Principle.

[A]

Dissent, good. But let's hold off on that.

[B]

So, Gorsuch, are we skipping Jackson and Sotomayor?

[A]

I guess we should not skip them. Okay.

[B]

We could just say they wanted to say that it lacks particularity.

[A]

Yeah, right. It's a short opinion. So maybe, who knows, maybe there was a draft that they joined that did that and then that had to get withdrawn. And so they decided to write. Jackson decided to write this. Yes. But also trying to kind of like nudge the 4th Circuit, which is going to have to deal with this on remand. I had a random question. Do you remember the answer to this? If an en banc court. This was an en banc decision by the 4th Circuit that split evenly. If a case is remanded by the Supreme Court back to the circuit, does it go to the en banc court? Again, or does it go to the panel?

[B]

I believe that is a question of circuit practice.

[A]

Okay. So different circuits might approach that differently.

[B]

I believe the ordinary practice is to give it back to the panel.

[A]

The three judge panel.

[B]

The original three judge panel, yeah. It's sort of related to two other. There's circuit variation on whether when a case goes en banc, whether you vacate the panel opinion or not.

[A]

Oh, really? I thought that was standard. Oh, I didn't know that. That some of them didn't do that.

[B]

It's a question of circuit rule, and I'm not sure where the fourth Circuit is on that. I don't think the fourth Circuit vacated the original.

[A]

Oh, interesting.

[B]

Okay, I could be wrong.

[A]

Now, you and you and Marin Levy are working on an article about circuit precedent. Does it deal with any of those issues or is that outside of scope?

[B]

It deals with some of the circuit variations on en banc issues. So I'm not sure what to deal with. I mean, she already has written a book with co author Judge Newman on the lots and lots of the sort of unwritten variation in circuit practices and procedures and the sort of important ways in which the unwritten law of circuit procedure shapes how the different courts appeals work. So a lot of these things are me as usual trying to ride on the coattails of my co authors. Okay, so there's the remand question. David, deal with that. Gorsuch, forget about that.

[A]

So Gorsuch is kind of going to do Carpenter. But unlike Carpenter here, he feels like he got enough to rule for the defendant using his alternate path approach. His let's not do cats kind of reiterate some of that points about Katz isn't great. Third party doctrine isn't great, but I'm going to do a kind of more textual positive law property type approach. So he says, and this is in part two of his concurrence on page four, he says, I would consult the terms of the Fourth Amendment, asking first whether location history qualifies as one of Mr. Chatri's papers or effects. Right. That's one of the specifically enumerated things in the Fourth Amendment. And then asking whether the government searched those papers or effects. Okay. And he says we still do this sometimes. Okay. And he actually mentions sometimes litigants forget to do this right, as in Carpenter. But here Chachary didn't forfeit that. He began his brief with this. Okay, so he says it's effects. And he doesn't resolve the paper's question. He says it's effects. And he says it qualifies as his personal property. And why he does this? Little unclear, but he sort of says, okay, first of all, look at the agreement with Google, which Google says, this is your information. He was free to review and edit it. So he had, like, control over it.

[B]

Yeah, right.

[A]

In a way that I think is not true of cell site location information.

[B]

Okay.

[A]

And then he looks to statutory and case law. All right. Yep. And here he looks to Virginia, which is where this occurred. Right. But he doesn't just look at Virginia. He looks at Texas law, for example. He looks at some precedent from Colorado, Arkansas.

[B]

He says he's trying to establish that Virginia is not some outlier. Right. And this is interesting, of course, I know you're setting this up. So under the strict version of the positive law model, the relevant question is the actual law applicable to this thing. What is the law of Virginia?

[A]

On what in this jurisdiction? Yeah, exactly.

[B]

Wherever that is, Virginia, which is the relevant state, is it the case that an ordinary person, a private person, can't get this data? And so he starts there, but then he pivots to say, virginia's not an outlier, as if it would matter if Virginia was an outlier. As if he would be unwilling to say, oh, okay, it's a search for Virginia and not elsewhere. There is a competing approach that, of course, is yours, that attempts to use the positive law model in maybe a way that's more attractive by making it more uniform and more general. You want to tell people about that?

[A]

Yeah. So in my article with Danielle Donfaro, the General Law on the Fourth Amendment, Yale Law Journal from, I guess, three years ago, we say, we start. We frame it around Justice Gorsuch's questions in Carpenter. We sort of say there's a third option. Right. You don't need to stick with 1791, and you don't need to stick with the specific law of the jurisdiction where this thing happened. Instead, you should do a kind of general law approach. And by general law, I think we're using a slightly thinner definition of that than you do in some of your other work that's been really important in surfacing this idea, which is we sort of treat it as like generic versions of the law. Right. This is something the court does in various areas. Like in federal contracting law, the court has to define what counts as a contract. And it sort of like, looks at different jurisdictions and kind of comes up with a kind of distillation of contract law. And our claim is that the court should do that here with some of the property type and positive law type concepts. But also that is what the court does. And I think that that descriptive claim is correct pretty clearly. So if you look at Jones, where you have five justices for doing a kind of property law approach, they're not specifically dialing into Maryland and D.C. property law. They're kind of reasoning from more general like is this a trespass principles. Likewise, there's another case we haven't talked about called either Jardines or Jardinez. The Chief justice says Jardines, but I'm told maybe it should be Hardenas where the question is, can the police bring a drug sniffing dog onto your front porch to figure out whether you have drugs in your house? And the court, again, perjustice, Scalia says no. And it says this is inconsistent with the kind of implied license that people give. It's a trespass on your property because it's inconsistent with the implied license you give to let people come to your front porch. You give a license for people to come to your front porch to knock on the door and try to sell you Girl Scout cookies or whatever, but that doesn't extend to people coming onto your front porch to use a dog to sniff for drugs. And again, the court there does not look at like Florida specific property law of license. The court sort of does something more generic. Right. And I'm going to say. And you're going to probably push back on this. I'm going to say, I think Justice Gorsuch is now settling on that third approach that he didn't seem to put on the table in his carpenter dissent because he seems to say, he seems to look. He starts with Virginia law. And so that is a data point in your favor. But he seems to think let's kind of look at some other states. Right. What's the approach here? And I don't read this as saying that this is. He agrees that this is a search in Virginia but not in other states. Right. He seems to think that you kind of can do a kind of more general, slightly more hand wavy analysis of the personal property question.

[B]

So I don't disagree with that. But I actually think he's even more hand wavy than either of us.

[A]

Okay.

[B]

So he's not at the positive law question. And I think the general question is ultimately, is the action at issue something that's forbidden by positive or general law?

[A]

Yeah. Is this a trespass, however defined?

[B]

Right, right, right.

[A]

Or some other kind of intrusion?

[B]

Right. And I think he instead is just asking, is it property? And then once it's property, his search test Is just, did you look over or through it for the purpose of finding something?

[A]

Yes. Which is basically different. Yeah, I think that's right.

[B]

For instance, if I leave a sheaf of papers out on a picnic table, like, that's my property, whether it's a violation of my property, whether it's trespass to shadows for you to come look at the paper. It might be complicated. It might depend. Are you looking at the top paper or other papers?

[A]

Yeah. So this is like page seven and eight where he says government conducts a search when it looks over or through for the purpose of finding something. Right.

[B]

And I think also he sort of makes the effects thing harder than he has to. So whether data is technically property is an interesting question. I'm not even sure he's totally right that it's property in every sense we care about. I don't know that when you go into bankruptcy, your creditors can seize your application history. Yeah, that's a good question. I don't know that I can sell it or alienate it or trade it. It's true. Mostly what it has is a protection against a certain kind of intrusion, which applies to the government, too. Now, I think he's doing that because this makes the whole thing seem more textualist. Now you just ask effect and search, which have the advantage of being the words in the Fourth Amendment. They just have the disadvantage that it's not actually clear that his questions make any sense in light of them.

[A]

Yeah, that's a good point.

[B]

But yeah, I agree to the extent he is doing anything like what either of us want. It's more like what you want than I want. But I. So I want to just disown Justice Gorsuch's dissent here and give it to you, Dan.

[A]

Okay, great. I'll take it. So then we have Justice Alito, principal dissent, and Justice Thomas is going to join for part one. So what's part one of the opinion? Is him kind of going on at length about how the court shouldn't have granted cert in the case.

[B]

I loved this part of the dissent. Right. So why not grant cert in the case? Well, for starters, when the 4th Circuit split 7 7, the en banc court, a bunch of them wrote separately to make clear that whatever the answer, the good faith exception exclusion error will apply. Right?

[A]

Yeah. Which seems imminently plausible to me, at least in the broad way the Supreme Court has interpreted that exception.

[B]

Right. And if it's not plausible, the court has not said anything to make it less plausible. It's fine to say the Court said This, but it's wrong. But normally, if there's a lower court opinion that says there was no constitutional violation and also there's qualified immunity, it would be odd for the Supreme Court to take the case and say, oh, actually there was a constitutional violation. Now go decide if there's qualified immunity, because the lower courts already decided that there's qualified immunity. So I take the point that that makes it a very odd thing to take.

[A]

And he keeps calling it an advisory opinion. Right.

[B]

I mean, it is in a sense.

[A]

It is, but although not in the jurisdictional sense, which he's not saying, and the majority is acknowledging that he's not saying.

[B]

He's not saying it's in the jurisdictional sense. But is it. So one of the requirements of standing is redressibility. And usually on appeal, we ask, will the appeal redress your injury vis a vis the loss below? Right. So Mr. Chatri is being criminally prosecuted, of course, as a defendant, he is standing. But to make any particular appeal, don't we have to ask, will this appeal in any way redress anything for you?

[A]

So I guess it depends a little bit on whether you think there needs to be a reasonable chance or some chance. So in footnote four of the majority that kind of responds to this, sort of says, first, it's not advisory in the jurisdictional sense. Okay, fine. Apparently the dissent's objection is that we today decide a question involving the Fourth Amendment where the odds are strong. So says the dissent, that the Fourth Circuit will eventually, as it did before, resolve this case on exclusionary rule grounds. But to repeat, the 4th Circuit may now consider anew, after review of our opinion, how the good faith exception applies here. Yeah. So the court seems to be saying maybe there's a good chance. We're not going to tell you there's a good chance, but we want to do over on that question. And I don't know, maybe there's going to be some reason that the Fourth Circuit would say, gosh, under these circumstances, we should not apply good faith.

[B]

Okay. So at first cut, I thought that was ridiculous because, sure, they could, I guess, return to this other thing they decided that doesn't seem like. But there's no reason to think they would redecide it. Now. This is something the course has done before. We talked about this a couple of times terms ago on the show. There was a case, NRA Vulo, one of these First Amendment cases, First Amendment jawboning cases, where the government pressured the NRA's banks not to talk to it, where the court I think did the same thing the 2nd Circuit had said, no violation and qualified immunity. And the court took it and was like, well, who knows, maybe they'll reconsider their qualified immunity holding. And they didn't. But there is some precedent for it. And I do think Justice Kagan wrote the opinion as in the most pro exclusionary rule direction you could, given how little she resolves in that the good faith question is in part about was this established by pre existing precedent? And trying to make this as much as possible follow from Carpenter at least does make it more possible than you otherwise could. And this is why Justice Kagan's writing and this is so impressive, because I'm sure she was thinking about this more possible than you otherwise could to now say, oh, now the Supreme Court has told us what they meant in Carpenter. We see that they were right about what Carpenter meant. And thus this was not a good faith interpretation of Carpenter whose meaning has been clarified by Chatri.

[A]

And also, you could then go on having done that and then say, yes, there was a warrant, but that wasn't enough because there is an exception to the good faith exception for warrants, where basically the warrant is facially invalid. And so you could then go on and say, look, this is a general warrant and so officers shouldn't have relied on it. So there is a path. And to the extent that anyone below was like, okay, we should err in favor of good faith to avoid this really hard constitutional question that's taken off the table. Right?

[B]

Yes. Now you can't avoid the constitutional question. That's right.

[A]

The search question is answered. And so now having answered that, maybe a judge might be like, okay, well,

[B]

although you could still avoid the particularity question by deciding on good faith grounds.

[A]

Yes, they could still do that.

[B]

Yeah. And it's also my memory is that Davis also contained a possible reservation that the good fixed exception of the exclusionary rule not apply to people named Davis or not apply to. If you are the specific person who won the specific Supreme Court case, you should get to have the exclusionary rule apply to you, even though it doesn't apply to anybody else similarly situated. Because otherwise there'd be a risk that the Supreme Court would never be able to take a case and that all Supreme Court opinions would be advisory opinions. So divorce court could also go with that on remand. They could say, well, look, the good faith exception applied before your name was Chatri, the prevailing party in the Supreme Court case. And that view is ridiculous in various ways, but it's something the court has

[A]

played with before, which, as I recall, was something that Justice Kagan sort of put on the table in the Davis argument itself, just sort of said, look, you don't really need a broad rule like this. The thing that you really care about is a specific exception just for you. But the court doesn't do that because it wasn't applicable there. I mean, Davis wasn't the guy who caused the court to reconsider its precedent in this case.

[B]

All right, now then, the last thing that Justice Kagan doesn't say, and this is just where I'm wondering if I'm confused. Justice Kagan says the odds are strong. So says the dissent. The fourth Circuit will eventually, as it did before, resolve this case on exclusionary rule grounds. Is it actually true the fourth Circuit ever resolved this case on exclusionary rule grounds?

[A]

Yeah, my understanding was that they didn't. That it was half.

[B]

My understanding is the en bang court split 77 with a bunch of concurring opinions. And even I haven't counted to see if there are seven concurring opinions or. The point is that even some of the people on Chhatri's side of the. Of the search question were on the concurring opinion side.

[A]

Maybe that's the case I didn't go through.

[B]

And the fourth Circuit panel opinion by Judge Jay Richardson, a great judge, finds no search and does not talk about good faith, as far as I can tell. And the fourth Circuit en banc, the only thing the court did was issue a per curiam ruling that says the judgment of the district court is affirmed. It has no grounds, it has no reasoning. It's just a per curiam affirmance. And then it's full of a bunch of separate talk.

[A]

Yeah, no, that's reasonable. So it's more like you're sort of saying, well, as a practical matter, there's enough of them that are going to say this. Well, maybe they'll reconsider it.

[B]

Yeah.

[A]

I wonder whether she had wanted to include that. Carve out the language about a possible carve out in Davis that you just mentioned. That would be a nice place to include it. But there may not have been support for that.

[B]

Yeah, no. I think I assume that everything not in this opinion couldn't be in this opinion because she has done everything. She understands exactly what she's working with. Now, there is this broader sense, though, in which it's true that this opinion is of very likely no importance to Mr. Chatri and very minimal importance for the issue of geofence warrants. More broadly, there Being no more geofence warrants. The real reason that the Court took the case and the real reason everybody cares about the case is just that it expresses a general advisory opinion about the Court's approach to computer and digital searches. And the truth is just. We think that's good. We think the Supreme Court doesn't take very Fourth Amendment cases. We could use some advice. And this advisory opinion is nice.

[A]

Yeah. And I think that's okay. I mean, I think this is the kind of law declaration model of the Supreme Court as the language casebook Hart and Wexler uses. But, yeah, there's this interesting sort of Part 1B criticism of the majority in Justice Alito's opinion, which he basically says we shouldn't have granted cert because this case is really unimportant. And also this case is bad because it's really important because it's going to have a lot of consequences.

[B]

Right. Well, again, there's a way in which you're saying this specific case is unimportant, and you are now using it to put into the US Reports in the form of precedent, extensive musings that are very disruptive. I mean, that's not false.

[A]

Yeah, it's not. But I also think it's good. I think that the Court has really not provided enough guidance. Lower courts are really struggling with these questions, and I think it's good to give us some more data points. And Oren Kerr has complained about how few Fourth Amendment cases the Court has decided. It's made teaching investigations a pretty easy lift in recent years. You don't really have to update your materials, but I think this is good. I'm going to next spring. I think I will teach this case instead of Carpenter. I think this should replace Carpenter. Okay. And so Justice Thomas only joined that part. He does not join any discussion of the merits. Right.

[B]

And then on the merits, Justice Alito says this is wrong. This doesn't follow from Carpenter. I wouldn't do this, et cetera, et cetera, because Justice Thomas in Carpenter has signaled some interest also in the property or positive law model. Right.

[A]

Yes. Although he was more clear that the carpenter should lose. So I think he takes maybe a more kind of originalist, narrow, cramped vision of the property type mantle.

[B]

Yeah. Although it'd be interesting to find out. It's possible that he read Justice Gorsuch's Currents and thought, yeah, maybe.

[A]

Yeah.

[B]

But it doesn't matter because I don't think we should be doing this.

[A]

Okay. And so on the merits section.

[B]

Yeah.

[A]

Justice Barrett is joining in Part. And can we just try to break down which parts she's joining and which parts she is not? So part 2A, she does not join.

[B]

She joins 2B, 2C 1 and 2C 2.

[A]

Okay. So 2A she doesn't join. Which he basically says this isn't a search. Government didn't transgress any rights in his papers or effects. Okay. Can't do it. And then 2B is the kind of cats part. And he says it's not a search under cats. Okay. She joins that part. And then 2C1 and 2C2 is.

[B]

Carpenter doesn't change this.

[A]

Yeah. Carpenter is narrow. Doesn't change it. And Carpenter said that it mattered, that how comprehensive this was and how long it was. Okay. And it's 2C2 again, focusing on uniqueness of the situation in Carpenter. Okay. And then he loses Barret for 2C3,

[B]

which is where he starts complaining about the unshackling of Carpenter that will unleash the very upheaval and Fourth Amendment law that Carpenter disclaimed.

[A]

Yeah. And maybe she likes that. And then he.

[B]

Or maybe she's just not taking a position.

[A]

Yeah. Yeah. She also doesn't join 2C4, which is criticizing the kind of abolition of the mosaic type approach, I think.

[B]

Okay. What I like is then she writes a one paragraph dissent, which I think helpfully explains why she joins the part. She joins.

[A]

Yeah. But doesn't say much. Right. Well, she says no quarrel with Carpenter or with the court's decision to grant search. So Carpenter's fine.

[B]

Yeah.

[A]

But I agree, under Carpenter, Chatri had no reasonable expectation of privacy and data about his public movements that he voluntarily disclosed.

[B]

Yeah.

[A]

So is she saying she thinks Carpenter's right, but this is wrong? And how would you land there?

[B]

She's saying she has no quarrel with Carpenter, which is different. Right. You could have the view of like, I probably would have been in the descent in Carpenter. But also it's fine.

[A]

I'm not going to quarrel with it.

[B]

I'm not going to overrule it. But that posture is exactly the posture. You might say part of the reason I'm not going to overrule it is because it said it was a narrow decision. It was only about seven days worth. I'm not necessarily going to extend its logic further than I have to. I'll just say these kinds of descents that can say in a paragraph just like what they're mad about, what they're not mad about, where they get off the train. These are great. We should have more descents like this.

[A]

Yeah. And fewer 91 pagers.

[B]

Yes.

[A]

Okay, so that's Chatri. I am excited about teaching it. I'm excited to see how it is going to play out in the lower court and hopeful that maybe it suggests some interest on the court now in taking a few more of these cases. Because I just think this is important. I think this is really important. We're going to get to a point where physical searching just doesn't matter as much, and digital searches are the whole ball game. And I think it really would be useful to have the Court's guidance on those questions.

[B]

So, Dan, I think there are two kinds of law professors. Law professors who want the Supreme Court to say more about their area of law, and law professors who want the Supreme Court to say less about their area of law. So it seems like as of the Fourth Amendment, you're in the first camp.

[A]

Yeah. Although maybe that's driven by the fact that I kind of like what they're doing.

[B]

Right. And I have colleagues, I'll just say, who definitely are in the second camp about their areas of law.

[A]

Yeah. I mean, I enjoy the intellectual puzzles of these cases, even if sometimes in other areas, the Court is doing stuff I don't love.

[B]

Right. There's the old John Langbein articles like the Supreme Court flunks trusts, that I remember at least, basically having the attitude ERISA was doing fine before the Supreme Court got interested.

[A]

Yeah. And I totally believe that. And I think that maybe IP and Tax or other places where people who are subject matter experts are pretty critical of the Court's forays into those highly technical areas.

[B]

Tax, for sure. I think IP has a split, because then some people, if you don't have the Supreme Court, you have the Federal Circuit, and some people don't like that either. But.

[A]

Yeah.

[B]

Anyway, I sort of like the Supreme Court to stay out of all areas of law, ideally.

[A]

You don't think that. Right. You like the court.

[B]

You think the court's great. I was just singing hosannas to the court in the New York Times this morning, getting other people mad at me for that. But I don't know that we need a lot of new law.

[A]

Like I said, we've just got enough law. We're good on law.

[B]

Yeah. I mean, sometimes people talk a lot about how will the law develop, and I guess I do worry sometimes that we're fine with the law we have, maybe even a little less of it.

[A]

Okay, so anything else to talk about?

[B]

No. All right, thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.

[A]

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