WaPo: Volokh: Two district courts adopt the mosaic theory of the Fourth Amendment

WaPo: Volokh: Two district courts adopt the mosaic theory of the Fourth Amendment by Orin Kerr:

Regular readers will recall the mosaic theory of the Fourth Amendment introduced by the DC Circuit in United States v. Maynard, by which law enforcement steps that aren’t searches in isolation can become searches when aggregated over time. For the most part, judges have been pretty skeptical of the mosaic theory. For example, in the recent oral argument in the Fourth Circuit in United States v. Graham, on whether the Fourth Amendment protects historical cell-site data, the mosaic arguments didn’t gain a lot of traction for the defense.

In this post, however, I want to focus on two recent federal district court decisions that cut against this trend and adopted the mosaic theory. The first case is United States v. White (E.D.Mich. Nov. 24, 2014) (Lawson, J.), which held that the Fourth Amendment was violated when the government obtained a warrant to track a drug dealer’s cell phone continuously over 30 days. The second case is United States v. Vargas (W.D.Wash. Dec. 15, 2014) (Shea, J.), which suppressed video evidence from a camera set up on a public utility pole 100 yards away from the target’s rural house that showed what was happening on the target’s front lawn continuously for six weeks.

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