Orin Kerr writes:
I’ve blogged a few times about United States v. Maynard, the controversial D.C. Circuit case holding that over time, GPS surveillance begins to be a search that requires a warrant. Maynard introduced a novel mosaic theory of the Fourth Amendment: Although individual moments of surveillance were not searches, when you added up the surveillance over time, all the non-searches taken together amounted to a search. The obvious question is, just how much is enough to trigger a search? At what does point the Constitution require the police to get a warrant?
This issue recently came up in a court order application before Magistrate Judge James Orenstein in Brooklyn seeking historical cell-site location for two cell phones used by a particular suspect.
Read more on The Volokh Conspiracy.
Julian Sanchez responds to Orin’s commentary in, “Blurry Lines, Discrete Acts, and Government Searches.” Julian writes, in part:
Orin’s point about the seeming arbitrariness of these determinations—and the difficulties it presents to police officers who need a rule to rely on—is certainly well taken. The problem is, the government is always going to have substantial control over how any particular effort at information gathering is broken into “acts” that the courts are bound to view “discretely.” If technology makes it easy to synthesize distinct pieces of information, and Fourth Amendment scrutiny is concerned exclusively with whether each particular “act” of information acquisition constitutes a search, the government ends up with substantial ability to game the system by structuring its information gathering as a series of acquisitions, each individually below the threshold.
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