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Friday links

It’s been a quiet week for appellate decisions, so here are some links to sate your appetite for law-related reading:

Is cell phone location tracking is a search under the Fourth Amendment? The Wisconsin Supreme Court couldn’t decide that question, but the Maryland Court of Appeals can, and does:

We conclude that people have a reasonable expectation that their cell phones will not be used as real-time tracking devices by law enforcement, and—recognizing that the Fourth Amendment protects people and not simply areas—that people have an objectively reasonable expectation of privacy in real-time cell phone location information. Thus, we hold that the use of a cell site simulator requires a valid search warrant, or an order satisfying the constitutional requisites of a warrant, unless an established exception to the warrant requirement applies.

For commentary, see here. There’s a pending case in the Seventh Circuit raising this issue, so it may be one of the first federal circuit courts to rule on the question. The ACLU and the Electronic Freedom Foundation filed an amicus brief in support of the defendant in that case. Also, note that the Maryland court criticized the police for trying to conceal their use of the cell phone tracking device, which suggests that standard discovery demands should be modified to request mobile phone records and surveillance. (Hat tip to Jim McLinden for the links and discovery demand suggestion.)

When was the last time there was a U.S. Supreme Court justice who had criminal defense experience? Twenty-five years ago, when Thurgood Marshall retired. Is that a problem? Yes.

Does the Supreme Court care about the troubled state of the indigent criminal defense systems? In our post on Luis v. United States we noted the back-and-forth between the plurality and dissent as to whether a defendant consigned to representation by a public defender is getting less than the full benefit of the Sixth Amendment. One commentator thinks this shows the Court had a “near-epiphany” about the troubled state of indigent criminal defense. An actual epiphany would be preferable, especially in light of the grim details about, say, Louisiana, as described here and here and here.

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