Smart Microwave

After a quick check on the Nina Totenberg embargo kerfuffle and one more revelation from Justice Thomas's memoir, we devote the episode to Chatrie v. United States (supremecourt.gov/opinions/25pdf/25-112_0am4.pdf), the Court's first major Fourth Amendment decision in years. We trace how the geofence-warrant ruling builds on — and goes beyond — Katz (supreme.justia.com/cases/federal/us/389/347), United States v. Jones (oyez.org/cases/2011/10-1259), and Carpenter v. United States (supremecourt.gov/opinions/17pdf/16-402_h315.pdf), and what's left of the third-party doctrine and the mosaic theory. Will explains the positive law model of the Fourth Amendment; Dan tries to claim Justice Gorsuch's separate opinion for his general-law approach. We close with the dissents, the advisory-opinion objection, and whether the Court should be saying more about the Fourth Amendment or less about everything. Along the way: Venmo heroin deals, smart microwaves, whether Will has genuinely forgotten his passcode, and a field-trip assignment for Chicagoland listeners.
Highlights
• [00:00:21] Cold open: three recording sessions in three days, and the theories swirling around the Nina Totenberg screw-up

• [00:02:04] Justice Alito's embargo story: the press-room idea he liked until he learned they have to let the journalists out of the room

• [00:03:04] My Grandfather's Son follow-up: Justice Thomas's over-cautious marijuana confession

• [00:04:35] Cleanup-order watch: GVRs still owed in light of Slaughter, Landor, and B.P.J.

• [00:04:57] The main event: Chatrie v. United States, the geofence-warrant case — and why a 5-Justice Fourth Amendment majority is a good get for Justice Kagan

• [00:06:51] What a geofence actually is (there is no fence) and the three-step Google Location History protocol

• [00:13:52] General warrants, particularity, the University of Chicago backpacks hypo, and Ybarra v. Illinois — with a field-trip assignment to the Aurora Tap House

• [00:21:09] Three questions — search, reasonableness, exclusion — and the clever cert grant that fenced out the exclusionary rule

• [00:25:52] The setup: Jones and the two tracks of Fourth Amendment doctrine, step 0 (the third-party doctrine), then Carpenter

• [00:33:13] Will's positive law model of the Fourth Amendment, and Justice Gorsuch's Carpenter dissent

• [00:36:29] Orin Kerr's mosaic theory: "building out the mosaic Byzantine style, it starts to become searchier"

• [00:39:15] Kagan shuts the mosaic door: where the Fourth Amendment applies, it applies regardless of quantity — a fortiori from Carpenter

• [00:47:36] What survives of the third-party doctrine: Strava, public Venmo feeds, and the "For heroin" hypo

• [00:50:53] Why it's a big deal: the anti-mosaic holding, and a majority of Justices revealed as Carpenter people

• [00:54:48] Tangent: Face ID, the Fifth Amendment, Will's forgotten passcodes, and his enemies

• [00:56:55] Does the Stored Communications Act make all this academic?

• [00:58:34] The Jackson concurrence's particularity nudge, en banc remand practice, and Levy & Newman on unwritten circuit rules

• [01:00:43] The Gorsuch concurrence: papers, effects, property — Will disowns it and gives it to Dan's general-law approach

• [01:08:36] The Alito dissent: the advisory-opinion objection, footnote 4, the Davis carve-out, and the NRA v. Vullo precedent for a do-over remand

• [01:18:59] Justice Barrett's à-la-carte joins and her one-paragraph dissent — "we should have more dissents like this"

• [01:22:31] Two kinds of law professors, "The Supreme Court Flunks Trusts," and whether we're good on law

• [01:24:15] Sign-off: the rare promise of a schedule — a fourth recording session this week

Relevant links
Cases
• Chatrie v. United States (scotusblog.com/cases/chatrie-v-united-states) — slip opinion (supremecourt.gov/opinions/25pdf/25-112_0am4.pdf)

• Ybarra v. Illinois (oyez.org/cases/1979/78-5937)

• United States v. Jones (oyez.org/cases/2011/10-1259)

• Katz v. United States (supreme.justia.com/cases/federal/us/389/347)

• Smith v. Maryland (oyez.org/cases/1978/78-5374)

• Carpenter v. United States (scotusblog.com/cases/case-files/carpenter-v-un…) — slip opinion (supremecourt.gov/opinions/17pdf/16-402_h315.pdf)

• Florida v. Jardines (scotusblog.com/cases/case-files/florida-v-jard…)

• Davis v. United States (oyez.org/cases/2010/09-11328)

• NRA v. Vullo (scotusblog.com/cases/case-files/national-rifle…)

Commentary & articles
• Amy Howe, "Court rules that law enforcement's use of 'geofence warrant' was a 'search'" (SCOTUSblog) (scotusblog.com/2026/06/court-rules-that-law-en…)

• Kate Shaw, Will Baude & Steve Vladeck, end-of-term Supreme Court roundtable (N.Y. Times, July 1, 2026) (nytimes.com/2026/07/01/opinion/supreme-court-b…) — the "hosannas" Will mentions on air

• William Baude & James Y. Stern, "The Positive Law Model of the Fourth Amendment," 129 Harv. L. Rev. 1821 (2016) (harvardlawreview.org/print/vol-129/the-positiv…)

• Danielle D'Onfro & Daniel Epps, "The Fourth Amendment and General Law," 132 Yale L.J. 910 (2023) (yalelawjournal.org/article/the-fourth-amendmen…)

• Orin S. Kerr, "The Mosaic Theory of the Fourth Amendment," 111 Mich. L. Rev. 311 (2012) (repository.law.umich.edu/mlr/vol111/iss3/1)

• John H. Langbein, "The Supreme Court Flunks Trusts," 1990 Sup. Ct. Rev. 207 (chicagounbound.uchicago.edu/journal_articles/1…)

Other
• Clarence Thomas, My Grandfather's Son (2007) (justicethomas.com/justice-thomas/memoir)

• Jon O. Newman & Marin K. Levy, Written and Unwritten: The Rules, Internal Procedures, and Customs of the United States Courts of Appeals (Cambridge 2024) (cambridge.org/core/books/written-and-unwritten…)