After a quick check on the Nina Totenberg embargo kerfuffle and one more revelation from Justice Thomas's memoir, we devote the episode to Chatrie v. United States, the Court's first major Fourth Amendment decision in years. We trace how the geofence-warrant ruling builds on — and goes beyond — Katz, United States v. Jones, and Carpenter v. United States, and what's left of the third-party doctrine and the mosaic theory. Will explains the positive law model of the Fourth Amendment; Dan tries to claim Justice Gorsuch's separate opinion for his general-law approach. We close with the dissents, the advisory-opinion objection, and whether the...
After a quick check on the Nina Totenberg embargo kerfuffle and one more revelation from Justice Thomas's memoir, we devote the episode to Chatrie v. United States, the Court's first major Fourth Amendment decision in years. We trace how the geofence-warrant ruling builds on — and goes beyond — Katz, United States v. Jones, and Carpenter v. United States, and what's left of the third-party doctrine and the mosaic theory. Will explains the positive law model of the Fourth Amendment; Dan tries to claim Justice Gorsuch's separate opinion for his general-law approach. We close with the dissents, the advisory-opinion objection, and whether the Court should be saying more about the Fourth Amendment or less about everything. Along the way: Venmo heroin deals, smart microwaves, whether Will has genuinely forgotten his passcode, and a field-trip assignment for Chicagoland listeners.
Highlights
[00:00:21] Cold open: three recording sessions in three days, and the theories swirling around the Nina Totenberg screw-up
[00:02:04] Justice Alito's embargo story: the press-room idea he liked until he learned they have to let the journalists out of the room
[00:03:04] My Grandfather's Son follow-up: Justice Thomas's over-cautious marijuana confession
[00:04:35] Cleanup-order watch: GVRs still owed in light of Slaughter, Landor, and B.P.J.
[00:04:57] The main event: Chatrie v. United States, the geofence-warrant case — and why a 5-Justice Fourth Amendment majority is a good get for Justice Kagan
[00:06:51] What a geofence actually is (there is no fence) and the three-step Google Location History protocol
[00:13:52] General warrants, particularity, the University of Chicago backpacks hypo, and Ybarra v. Illinois — with a field-trip assignment to the Aurora Tap House
[00:21:09] Three questions — search, reasonableness, exclusion — and the clever cert grant that fenced out the exclusionary rule
[00:25:52] The setup: Jones and the two tracks of Fourth Amendment doctrine, step 0 (the third-party doctrine), then Carpenter
[00:33:13] Will's positive law model of the Fourth Amendment, and Justice Gorsuch's Carpenter dissent
[00:36:29] Orin Kerr's mosaic theory: "building out the mosaic Byzantine style, it starts to become searchier"
[00:39:15] Kagan shuts the mosaic door: where the Fourth Amendment applies, it applies regardless of quantity — a fortiori from Carpenter
[00:47:36] What survives of the third-party doctrine: Strava, public Venmo feeds, and the "For heroin" hypo
[00:50:53] Why it's a big deal: the anti-mosaic holding, and a majority of Justices revealed as Carpenter people
[00:54:48] Tangent: Face ID, the Fifth Amendment, Will's forgotten passcodes, and his enemies
[00:56:55] Does the Stored Communications Act make all this academic?
[00:58:34] The Jackson concurrence's particularity nudge, en banc remand practice, and Levy & Newman on unwritten circuit rules
[01:00:43] The Gorsuch concurrence: papers, effects, property — Will disowns it and gives it to Dan's general-law approach
[01:08:36] The Alito dissent: the advisory-opinion objection, footnote 4, the Davis carve-out, and the NRA v. Vullo precedent for a do-over remand
[01:18:59] Justice Barrett's à-la-carte joins and her one-paragraph dissent — "we should have more dissents like this"
[01:22:31] Two kinds of law professors, "The Supreme Court Flunks Trusts," and whether we're good on law
[01:24:15] Sign-off: the rare promise of a schedule — a fourth recording session this week
Relevant links
Cases
Commentary & articles
Amy Howe, "Court rules that law enforcement's use of 'geofence warrant' was a 'search'" (SCOTUSblog)
Kate Shaw, Will Baude & Steve Vladeck, end-of-term Supreme Court roundtable (N.Y. Times, July 1, 2026) — the "hosannas" Will mentions on air
William Baude & James Y. Stern, "The Positive Law Model of the Fourth Amendment," 129 Harv. L. Rev. 1821 (2016)
Danielle D'Onfro & Daniel Epps, "The Fourth Amendment and General Law," 132 Yale L.J. 910 (2023)
Orin S. Kerr, "The Mosaic Theory of the Fourth Amendment," 111 Mich. L. Rev. 311 (2012)
John H. Langbein, "The Supreme Court Flunks Trusts," 1990 Sup. Ct. Rev. 207
Other
Clarence Thomas, My Grandfather's Son (2007)
Jon O. Newman & Marin K. Levy, Written and Unwritten: The Rules, Internal Procedures, and Customs of the United States Courts of Appeals (Cambridge 2024)
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