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Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

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9 Responses

  1. Tanya says:

    “by inventing two new considerations for Fourth Amendment analysis: the duration of the information-gathering (such as GPS tracking), and the severity of the crime”

    U.S. v. Place: “the brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion”

    The latter has been suggested (see, e.g., the dissent in Atwater v. Lago Vista) before now.

    “Magic places” … Not really. Just protected places. Like watching obscene movies in the HOME is more protected. Stanley v. Georgia. Magic requires a bit more.

  2. PrometheeFeu says:

    I agree. Scalia’s test is compared to Alito’s a much brighter line. Though as Orin Kerr was pointing out, it would be nice to know what the magic places are.

    I’m not overly worried about cloud computing and pervasive surveillance though. I just can’t see a reasonable way to reach that issue in this case. But from Alito’s and Sotomayor’s opinions, it seems to me there would be strong support in the Court for putting some sort of protections in the above-mentioned context.

  3. Brett Bellmore says:

    Why wouldn’t the ‘magic places’ be defined as, “their persons, houses, papers, and effects,”?

  4. Derek Bambauer says:

    @Brett: they would. The challenge is similar to dealing with matryoshka dolls: if “magic places” = “persons, houses, papers, and effects,” how do we know what “effects” = ? Why is a car an effect? Is an RV = “house”? One needs a methodology. Scalia puts forth originalism, where we try to understand what “effect” meant in 1791. I’m not sure that answers the car question, but he is.

  5. Joe says:

    Horse-less carriages seem to me comparable to horse-led ones, so I don’t think Scalia would have too much trouble with determining the meaning of “effects” in that context. As to RVs, that might be trickier, though there were covered wagons, though I’d have to check to see if they were around in 1790.

  6. Ken Rhodes says:

    For RVs we can look to the IRS, which says they are houses, as are boats, if they have a galley, a bed and a head.

  7. Brett Bellmore says:

    Pardon my ignorance, but doesn’t “effects” in the 4th amendment simply mean personal property? What else would it mean? I could see an argument over whether it extends to things you’ve rented, (Aside from houses, of course.) but that’s got to be the bare minimum.

  8. Joe says:

    “Papers” such as personal diaries would be “personal property,” so that term seems overbroad. “Effects” must have some meaning more limited than that. And, yes, the question is to determine what “house” entails, not “real property.”

  9. David E says:

    Now the Department of Justice should reveal to all the people they have used this on, since they thought it was legal all along. How many convictions will be overturned? How many people will find out that life hasn’t been so private? Patriot Act, up yours.