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October 19, 2020

Notable SCOTUS Fourth Amendment activity, but nothing for sentencing fans

I flagged in this post from June my sense that the Supreme Court has become particularly (and problematically) quiet on sentencing matters.  This feeling continues with this morning's new SCOTUS order list in which the Court granted cert on three new cases, but denied cert without comment in the Demma reasonableness review case flagged here.  I suppose the coming oral arguments in Borden v. US, No. 19-5410 (another ACCA application case), and especially Jones v. Mississippi, No. 18-1259 (application of Miller), provide plenty to keep sentencing fans engaged for now.  But I remain disappointed that SCOTUS has now been quiesced on a range of (non-ACCA) federal sentencing issues for quite some time.

But, perhaps unsurprisingly in light of other 2020 events, it does seem like the Justices are getting ever more engaged on Fourth Amendment issues.  Specifically, one of the new cert grants comes in Lange v. California, which SCOTUSblog describes this way: "Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant."

In addition, Justice Gorsuch, joined by Justices Sotomayor and Kagan, issued a notable five-page statement respecting the denial of certiorari in another Fourth Amendment case, Bovat v. Vermont.  This statement includes a picture so that readers can better visualize the police activity which gets verbally described this way:

Suspecting Clyde Bovat of unlawfully hunting a deer at night (Vermont calls it a “deer jacking”), game wardens decided to pay him a visit to — in their words — “investigate further.”  But the wardens admit that “pretty soon after arriving” they focused on a window in Mr. Bovat’s detached garage.  Heading there and peering inside, the wardens spotted what they thought could be deer hair on the tailgate of a parked truck.

I am never troubled when all sort of police activity, even concerning deer hair and deer jacking, gets subject to appropriate scrutiny.  But I still see so many federal (and state) sentencing activities that could merit so much more SCOTUS scrutiny.

October 19, 2020 at 10:17 AM | Permalink


I am particularly troubled by the court being interested in the Fourth Amendment under its current make up. Or what's left of the Fourth Amendment, I should say. There's almost nothing the police can do these days that federal judges will find unreasonable. For instance, the Fifth Circuit seems willing to overlook pretty much any police act, as long as there isn't any direct precedent making it unreasonable--and the precedent must match exactly the same fact circumstances as the activity you're challenging, otherwise a good faith exception is found. All sorts of shenanigans that no citizen would consider reasonable are allowed.

Posted by: Anon | Oct 19, 2020 11:04:33 AM

Both Lange and Borat involve a common law trespass within the curtilage. As reflected by the fact that the statement in Borat came from Gorsuch, that type of core Fourth Amendment issue appeals to the conservative wing of the Supreme Court.

I would not necessarily want to be pushing something about whether there is probable cause or reasonable suspicion with the current majority (see last year's driving case from Kansas), but something that goes to traditional property interests seems to have a good chance at succeeding.

Posted by: tmm | Oct 19, 2020 3:31:11 PM

For an interesting 4th Amendment curtilage case, read "Quintana v. Commonwealth", 276 S.W.3d 753 (Ky. 2008).

Posted by: James J. Gormley | Oct 19, 2020 5:32:19 PM

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