What Good Is a Treaty That Congress Can Simply Discard? Quite a Bit, as the Creek Nation’s Victory in the Supreme Court Shows

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on the recent decision by the U.S. Supreme Court in McGirt v. Oklahoma, holding that a substantial portion of the state of Oklahoma is an Indian reservation of the Creek Nation. Dorf observes that the majority’s approach in McGirt makes it more likely that courts will find the existence of reservations for other tribes, but there could be collateral consequences in many other contexts.

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United States v. Trice

Docket: 19-1500

Opinion Date: July 21, 2020

Judge: John K. Bush

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Trice entered a conditional guilty plea to possession of methamphetamine with intent to distribute, reserving the right to challenge the warrant issued to search his apartment. Officers had entered the common area of his apartment building and placed a camera disguised as a smoke detector on the wall across the hallway from the door of his unit. The camera was equipped with a motion detector and set to activate whenever the door to his apartment opened. The camera made several videos of Trice entering and exiting; the information was used in an affidavit in support of the search warrant. Law enforcement executed the warrant and seized drugs and other paraphernalia consistent with distribution. The Sixth Circuit affirmed, rejecting his Fourth Amendment arguments as “squarely foreclosed by two lines of authority.” Trice had no reasonable expectation of privacy in the apartment’s unlocked common hallway where the camera recorded the footage. Law enforcement may use video to record what police could have seen from a publicly accessible location. The camera captured nothing beyond the fact of Trice’s entry and exit into the apartment and did not provide law enforcement any information they could not have learned through ordinary visual surveillance.