Mar 012012
 
 March 1, 2012  Court, Surveillance, U.S.

Orin Kerr writes:

I am often filled with a mild sense of both excitement and dread when I learn that Judge Posner has authored an opinion in areas of law that I follow closely. Excitement, because I know it will be fascinating to read. And dread, because I know it will be filled with extensive error-prone dicta on issues not briefed and reasoning that is hard to square with existing precedents. On that score, Judge Posner’s opinion today in United States v. Flores-Lopez doesn’t disappoint. The issue: When the Fourth Amendment allows the police to search a cell phone incident to arrest. The conclusion: As far as I can tell, Judge Posner seems to have some sort of graduated scale in mind, in which minimally intrusive searches of phones are okay as a routine matter incident to arrest but more extensive searches require more justification or maybe a warrant.

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