Friday, June 20, 2014
Orin Kerr has this interesting post at The Volokh Conspiracy. In part:
The following hypothetical demonstrates the problem. Imagine that investigators in Arkansas obtain a target’s cell-site records pursuant to a federal court order that falls short of a warrant. Investigators want to show that the target was involved in drug-trafficking crime that started in Arkansas (in the Eighth Circuit), then traveled to Mississippi (in the Fifth Circuit), and then arrived in Alabama (in the Eleventh Circuit). The records show that the phone did so travel, and investigators want to use the records in the criminal case against the target. Under the federal venue statute, the government can charge the crime in any of the districts where the offense occurred. That means the feds can charge the case in the Eighth Circuit, which has not ruled on the legality of obtaining cell-site records without a warrant; the Fifth Circuit, which has held it is legal; or the Eleventh Circuit, which has held that it violates the Fourth Amendment.