Arguments: Week of January 8, 2018

The Court begins 2018 with a full schedule of oral arguments on Monday, Tuesday, and Wednesday of next week. Among the most interesting arguments are an important voting rights case and two cases about Fourth Amendment searches involving vehicles.

The Fourth Amendment cases will both be argued on Tuesday. In Byrd v. United States, the Court will consider whether a driver has a reasonable expectation of privacy in a rental car when he has the permission of the renter to drive the car but is not listed as an authorized driver on the rental agreement. More specifically, the question is whether the driver can even claim that his Fourth Amendment rights were violated, based on a doctrine sometimes referred to as “Fourth Amendment standing.” Orin Kerr provides some background on the doctrine and suggests that perhaps the driver’s motives should be relevant:

If we take the fundamental issue to be whether the car was in a practical sense Byrd’s car, then I get different instincts depending on what Byrd was thinking. For example, if Byrd just happened to have borrowed Reed’s rental car, and it just never occurred to him whether the rental car company allowed that, then I can see the car as effectively Byrd’s and it makes sense that Byrd has standing. On the other hand, if Byrd persuaded Reed to rent the car for Byrd because he knew the rental car company wouldn’t rent to him given his criminal record, then it seems weird to see the car as effectively Byrd’s and quite odd to say he has standing.

Also on Tuesday, the Court will hear about the scope of “automobile exception” to the Fourth Amendment right to be protected against unreasonable searches and seizures . Under this exception, as the Court explained in Maryland v. Dyson, if “a car is readily mobile and probable cause exists that it contains contraband, the Fourth Amendment … permits the police to search the vehicle without” a warrant.  The issue in Collins v. Virginia is whether this exception allows a police officer who is not invited and does not have a warrant, to enter private property and search a vehicle that is parked a few feet from the house. Officers were trying to find a motorcycle driver who had been involved in two high speed chases, and were not able to identify the driver visually because his helmet, and ran into Collins at the DMV a few months after the incidents in question. Suspecting Collins, the officers located his residence and saw a motorcycle covered in a tarp parked behind a car on his driveway. One of the officers then entered Collins’ property, without permission or a warrant, removed the tarp, and ran the licence plate of the motorcycle. It was flagged as stolen, so the officer arrested Collins for receiving stolen goods. Collins argues that the trespass was an unconstitutional search, but Virginia Supreme Court held that the officer’s conduct was lawful. A brief submitted by the United States Justice Foundation in support of Collins argues that the automobile exception did not apply to the facts in this case because the officer had no reason to believe that the motorcycle was stolen when he trespassed onto the property. However, Virginia claims that the motorcycle was “readily mobile, parked in a driveway with easy access to the street” and therefore the automobile exception should still apply in this case. Cornell Law Professor Sherry Colb discusses the law — and the odd facts — of the case here.

On Wednesday the Court will hear Husted v. Randolph Institute, which addresses the legality an Ohio law that purges voters from the voting polls if they do not confirm their address. The law allows the Ohio Secretary of State to send postcards to voters who have not voted within the past two years, asking them to confirm their address. The Secretary of State may purge a voter from the list if that voter fails to fill out of the postcard and send it back. The A. Philip Randolph Institute – named after the civil rights activist – among other groups like the ACLU and the Brennan Center for Justice, argues that the Ohio law violates the National Voting Rights Act (NVRA) and the Help America Vote Act (HAVA). Specifically, the NVRA states that an individual may not be removed as a voter “by reason of the person’s failure to vote.” Ohio argues that it is not purging voters because they aren’t voting, but because they aren’t filling out the postcards to indicate their address. The Economist highlights the issues in the case and notes that until the Trump Administration, the Department of Justice (DOJ) agreed with the challengers’ position on how to interpret the statutes at issue. Greg Stohr of Bloomberg showcased one Ohio voter, Larry Hammond, who deliberately chose not to vote in some elections but did not intend to give up his right to vote. Hammond intentionally sat out the 2012 and 2014 elections, but when he wanted to vote on a 2015 ballot measure on marijuana legalization, he discovered he had been purged from the voting rolls.

On Monday, the Court will hear arguments in two cases involving disputes between States over water rights, Texas v. New Mexico and Colorado and Florida v. Georgia. Because the cases involve litigation between states, the Court has original jurisdiction. As a practical matter, as Stephen Wermiel explained on SCOTUSblog, original cases are referred to a special master, who holds a trial and writes a report to the Court. In Texas v. New Mexico the Court will hear oral arguments on the first of two water rights cases. The Court then essentially hears an appeal from that report. The water rights cases tend to be complex and technical. SCOTUSblog summarizes the issues in Texas v. New Mexico and Colorado here and in Florida v. Georgia here.

This post was drafted by ISCOTUS Fellows Zoe Arthurson-McColl and Michael Halpin, both Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

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