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1L Legal Research Refresher Training Tomorrow!

Attention 1Ls!  Please join the LRC reference librarians at noon tomorrow for a Legal Research Refresher training in LRC 132. If you are unable to attend, you can still view the presentation slides on our Research Guides and Class Trainings page. [MF]

GPS installation/tracking: USD Moot Court competition & US Supreme Court

In November 2011, the University of San Diego Moot Court Board hosted the 23rd Annual Criminal Procedure National Tournament. This year’s problem was written by USD Moot Court Executive Board member Matthew Stephens. One of the two issues argued in the competition was whether warrantless installation and use of a GPS tracking device on a suspect's vehicle to monitor its movements on public streets violates the Fourth Amendment.
 
Earlier this week, the United States Supreme Court answered with a unanimous "yes" in United States v Jones, 565 U. S. __ (2012), but the justices differed widely on their reasoning.

The majority opinion, authored by Justice Scalia (joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor), presents the case as a fairly straightforward search and seizure case of the physical trespass variety. The Fourth Amendment guarantees persons the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…" Jones' vehicle is his "effect." Law enforcement  physically intruded upon Jones' vehicle in the process of installing and receiving data from the GPS tracking device.  In true Originalist fashion, Scalia reasons that the framers would have recognized such physical intrusion as a search and, therefore, it constitutes a search.

Scalia summarily dispenses with more recent cases that have addressed GPS and other surveillance technology under a "reasonable expectation of privacy" analysis introduced in under Katz v. United States, 389 U.S. 347 (1967). He reasons that this case requires no "reasonable expectation of privacy" analysis because the Fourth Amendment protects against, at a minimum, physical trespass. The "reasonable expectation of privacy analysis" is only required for actions that do not involve a physical trespass.  In Scalia's words, "the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." Jones, slip op. 8.

In compartmentalizing physical trespass searches separately those involving no physical trespass, the court avoids answering the bigger questions about the Fourth Amendment (and other privacy law) implications of current and future technologies.

Justice Sotomayor joined Justice Scalia's opinion (winning him the majority) but also filed her own concurring opinion. Justice Sotomayor endorses Justice Scalia's framing of physical trespass searches: "the trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs." Jones, slip op. Sotomayor concurrence, 2. But Justice Sotomayor goes on to express concern over searches that do not involve physical trespass, even when the party seeking to protect a privacy interest has willingly provided the contested information to a third party.

Justice Alito's concurring opinion (joined by Justices Ginsburg, Breyer, and Kagan) rejects Justice Scalia's analysis of physical trespass searches, asserting that the "reasonable expectation of privacy" analysis set out in Katz provides the exclusive test for all Fourth Amendment cases. In particular, Justice Alito points to Oliver v. United States, 466 U. S. 170 (1984), in which a police trespass onto a suspect's "open field" was found not to constitute a search within the meaning of the Fourth Amendment: "[I]n determining whether expectations of privacy are legitimate. ‘The premise that property interests control the right of the Government to search and seize has been discredited’" (citations omitted). Jones, slip op., Alito concurrence, 6.

There's no shortage of commentary in the blawgosphere - here are just a few posts:

Washington Post: Robert Barnes, Supreme Court Warrants Needed in GPS Tracking

Slate: Dahlia Lithwick,  US v Jones Supreme Court Justices Alito and Scalia brawl over technology and privacy

SCOTUS Blog: Tom Goldstein, Reactions to Jones v. United States: The government fared much better than everyone realizes
 
SCOTUS Blog: Lyle Denniston, Opinion Recap Tight Limit on Police GPS Use

NY Times: Adam Liptak, Justices Say GPS Tracker Violated Privacy Rights

Volokh Conspiracy Blog: Orin Kerr, What Jones Does Not Hold

Concurring Opinions Blog: Derek Bambauer, Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

Concurring Opinions Blog: Priscilla Smith, United States v. Jones: Privacy in Public Space? Piece it all Together and You Get 5

Concurring Opinions Blog: Paul Ohm, Jones is a Near-Optimal Result

Concurring Opinions Blog: Margot Kaminski, Three thoughts on U.S. v. Jones

[JML]

American Association of Law Schools annual meeting

Last week, while most* of you were enjoying your last few days of freedom before the start of the new semester, some of your professors were attending the American Association of Law School's annual meeting in Washington, D.C.  The theme of this year’s annual meeting focused on academic freedom and academic duty, but sessions also addressed some of the hot topics burning up the blawgosphere, including law student debt (NLJ, ABAJournal, ATL, AmLaw_pt1, AmLaw_pt2).

Our own Prof. David McGowan spoke at a session addressing the First Amendment implications of various government attempts to interfere with attorney-client relationships as well as and other First Amendment implications raised by lawyers' use of social media, advertising, and criticism of the judiciary.

*We saw a few of you here in the LRC slogging through citechecking assignments - please accept our sincere sympathy. [JML]

Fall Semester 2011 - Finito!

Congratulations on what is sure to be another successful law semester completion.  Just one more measely semester to go for some of you lucky law students before you can claim the title of Juris Doctor.  Happy Holidays to all! [AR]

Therapy Dogs available Tuesday!

They’re back baby! Therapy dogs to the rescue! Come on out on Tuesday the 13th and smooch a pooch, pet a pup, or love on a Pug! Certified therapy dogs will be available from 12-2 p.m. for anyone to play and cuddle up with. Some studies show that petting a dog can be therapeutic and help reduce nasty stress.  Reduce your stress level and put a smile on your face at this ever so popular event.  [AR]

PA Trial Court Orders Plaintiff to Turn Over Facebook Password to Defense Counsel

In Largent v. Reed, plaintiff sought to recover damages for physical and mental infuries and pain and suffering as a result of an automoble accident caused by defendant. The court granted the defendant access to the plaintiff's Facebook account, which the defendant believes may contain evidence contrary to the plaintiff's allegations, such as photos of her "enjoying life with her family and a status update about going to the gym." No expectation of privacy on Facebook, says the court, noting "Only the uninitiated or foolish could believe that Facebook is an online lockbox for secrets." [RL]

USD Law Event: Baja California's Progress in Fighting Drug Cartels and the Implementation of a new Criminal Justice System

When: Tuesday, Nov. 15th, 12:00pm
Where: Grace Courtroom
Cost: Free

Attorney General Rommel Moreno Manjarrez of the state of Baja California, Mexico, will be speaking about his state's progress in the fight against drug cartels and the implementation of a new criminal justice system.  Presented by the International Human Rights Law Society at USD, for more information please contact ihrlsatusd@gmail.com. [MF]

11.11.11

What do the military, corduroy pants and metaphysical associations have in common? 

That's right - November 11, 2011.  This Friday is going to be busy. 

Not only great just for being a Friday, 11.11.11, will be a time of rememberance for when WWI drew to a close.  The eleventh hour of the eleventh day of the eleventh month.  That was the moment at which World War I largely came to end in 1918.  The date of November 11th became a national holiday of remembrance in many of the victorious allied nations – a day to commemorate the loss of so many lives in the war. And in the United States, President Wilson proclaimed the first Armistice Day on November 11, 1919. A few years later, in 1926, Congress passed a resolution calling on the President to observe each November 11th as a day of remembrance. (VA website)

In a lighter aspect of this Friday, let us also call attention to the fact that - 11/11/11, is significantly "the date which most closely resembles corduroy" on the 2010 calendar, in the words of the Corduroy Appreciation Club.  The 5-year-old club, which, according to its website, holds meetings on "days that resemble corduroy," is holding a week of activities to mark the Nov. 11 event.  A spokesperson for the group said in a note posted on the club site: "11|11|11 will be the date which most closely resembles Corduroy, ever." The spokesman goes on, "Nascent plans are in development for a Cordinated international spectacular. It will be the greatest day ever." (LA Times article)

Finally, for mathematical, weather, gambling, and universal tidbits on how to Intrepret 11.11.11, checkout this page. [AR]

2010 Supreme Court Announcements now available through

Audio and transcripts of Supreme Court opinions from the 2010 term are now available through Oyez (http://www.oyez.org/cases/2010) or by subscribing to Oyez's 2010 Opinion Announcements podcast through iTunes U (http://www.apple.com/itunes/affiliates/download/?id=453545974).  [JL]

Trans-Border Institute Event: The Effects of Violence in Mexico on U.S. Migration and Immigration Policy

When: Tuesday, November 8th, 6:00-8:00p
Where: Joan B. Kroc Institute for Peace and Justice Theatre
Cost: Free, register at  veronica.barba@americanbar.org

This panel will discuss the effects on U.S. migration and immigration policy from the legal and policy standpoint.  Panelists will include: Veronica Barba, Esq., ABA Immigration Justice Project, San Diego; Amy Isackson, Freelance Border and Immigration Reporter; and Douglas Nelson, Esq., Law Office of Douglas Nelson. Moderated by Olivia Ruiz, University of San Diego. [MF]