We wanted to share with you some good news that came out of the Supreme Court this morning. But first, we wanted to give a bit of background.
Most amicus briefs in the Supreme Court are filed at the merits level - after the Court grants a petition for certiorari.
However, various scholars who study the Supreme Court have conducted studies which have shown that the filing of an amicus brief in support of a petition for
certiorari significantly improves the chances that a petition is granted by the U.S. Supreme Court. Such cases seem to get a closer look by the Court because
they are shown to have significance to more than just the litigants.
Our clients regularly look for cases that the Court should hear, and then file briefs at the petition stage. For example, of the 14 briefs we have filed thus far
this year in the U.S. Supreme Court, 10 have been at the petition stage. If the petition is granted, we almost always follow through and file another
brief on the merits.
Certain cases attract lots of amicus briefs at the petition stage - such as the case involving the Trump Executive Order on Immigration - but those are often
cases that the court is likely to take anyway.
Well, this morning, the Supreme Court granted review in 11 cases from its "long conference" to open the October 2017 Term. One of those cases
is Collins v.
Virginia - a case in which we filed the only amicus brief in support of the petition for certiorari.
This is a fascinating and important case. The technical question in Collins is "Whether the Fourth Amendment's automobile exception permits a police officer,
uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house."
The search in this case was of a motorcycle under a tarp located in what is known as the "curtilage" of a home, or the area immediately surrounding it. Under
the deeply flawed rule the Virginia Supreme Court applied, the Fourth Amendment has no bearing at all whenever an automobile or anything that resembles an
automobile is being searched, irrespective of where the automobile is located.
The government argued that the automobile exception applies so broadly that it overrides the Fourth Amendment's protections of the home. Of course, the
automobile exception itself is an atextual exception to the Fourth Amendment created by the Supreme Court. Unfortunately, the Virginia Supreme Court agreed
with the police below and allowed the search to stand.
We have filed numerous briefs urging courts use a textual, property-based analysis, rather than an atextual privacy analysis in deciding Fourth Amendment
cases. Herb Titus has spoken at legal conferences about our approach, and we wrote
a law review article about it.
Our amicus brief in Collins was no exception, as it argued that the Virginia Supreme Court should have applied the property-based rule of Jones v. United
States and Florida v. Jardines.
Now that we know the Supreme Court will consider this case on the merits, we are planning to file another brief in mid-November. If you would like to join
and help support that brief, please let us know.
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