Wednesday, November 24, 2010
Orin Kerr at The volokh Conspiracy explains why he thinks the petition should be denied:
The puzzling part about the panel decision in Pineda-Moreno was that it essentially undid the government’s concession: It held that the warrantless search was okay even though the driveway was concededly part of the curtilage. That’s wrong, in my view. The government’s concession should have lost the case for them, and the Ninth Circuit was wrong to bend over backwards to undo the concession. But this strange context means that there isn’t a clear split: The approach of other circuits would be to say that going on to the driveway wasn’t a search because it didn’t cross onto the curtilage, which is the same result as the Ninth Circuit reached. So although the analysis is rather strange, the basic result is the same as other circuits have found with similar facts.