Posted by Orin Kerr:
An Interesting Consequence of *United States v. Comprehensive Drug Testing*:
http://volokh.com/archives/archive_2009_08_23-2009_08_29.shtml#1251345830
Am I right that the Ninth Circuit's Fourth Amendment decision in
[1]United States v. Comprehensive Drug Testing has rendered every
computer search warrant that has ever been obtained unconstitutional?
I've been working in this area, and I have never heard of a warrant
that satisfies the Ninth Circuit's new procedural standards.
I suppose it's possible that the Ninth Circuit will create a new
retroactivity jurisprudence to go along with its new Fourth Amendment
jurisprudence. If so, the Ninth Circuit might hold that its new rules
don't apply to past warrants or past searches that have occurred. But
unless or until it does, I would think that every criminal case in the
Ninth Circuit with a search warrant involving computers has just been
given a new suppression issue: None of the cases will have followed
the protocols that the Ninth Circuit just said the Fourth Amendment
requires, as no one could have predicted these new protocols.
Or perhaps the Ninth Circuit will conclude that there is no
suppression remedy for past searches that violated the new
requirements? This is really new territory, so it will be interesting
to see how it plays out. I suspect we'll find out soon, as there are a
lot of these cases.
References
1. http://www.ca9.uscourts.gov/datastore/opinions/2009/08/26/05-10067eb.pdf
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