How Mike Huckabee and Robert Bork Could Help Center Neil Gorsuch

SHERRY F. COLB

Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.

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United States v. Watkins

Docket: 18-14336

Opinion Date: December 3, 2020

Judge: Edward Earl Carnes

Areas of Law: Criminal Law

The Eleventh Circuit reversed the district court's grant of defendant's motion to suppress evidence on Fourth Amendment grounds. Law enforcement agents had placed a GPS tracking device in two packages after finding cocaine hidden in them. The agents put both packages into the mail stream and attempted to track the packages. Even assuming the warrantless monitoring of the GPS tracking device signal from the package once it entered the house was a violation of the Fourth Amendment, the court held that there is a reasonable probability that the evidence would have been discovered anyway. The court explained that the evidence incriminating defendant would have been discovered through ongoing investigation and the pursuit of leads that were already in the possession of the agents at the time the device started functioning and they monitored it. In this case, defendant was the lead suspect; the agents had already looked up information about her and had obtained her address; they were discussing doing a knock and talk at her house, which would not have required a search warrant; at the moment the tracking device reactivated, they were actively discussing doing it; and it is not as if the knock and talk is a novel or unfamiliar investigative technique: collectively the agents had done hundreds of them.