John Wesley Hall Jr. of FourthAmendment.com provides a pointer to materials on the Comprehensive Drug Testing case involving major league baseball players that begins:
In the Ninth Circuit’s controversial, from the government’s standpoint, Comprehensive Drug Testing case, the Solicitor General’s petition for real en banc rehearing is here and here. Anybody who is interested in computer search cases will find it quite interesting.
Hall quotes from Orin Kerr‘s commentary on the case and offers his own:
I agree with Mr. Kerr that part of the brief is a “the sky is falling” argument, and the example the government gives, the reference to the child sexual abusers, is over the top. I just cannot believe that the government did not press forward with that search warrant because it is so easily alleged in the affidavit and shown in the warrant exactly what they wanted. If I were a cynic, I would say that the government manipulated these facts just to create for itself an argument that did not have to exist, almost like they planned to use the example in Washington for a petition for rehearing. Never in the history of the Fourth Amendment has a federal agent been so allegedly solicitous of the rights of an accused. They had the state officers willing to assist, so they create a strawman argument.
Nevertheless, this case has “cert granted” written all over it if the government asks.
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