Matthew Tokson is a Professor of Law at the University of Utah S.J. Quinney College of Law, writing on the Fourth Amendment and other topics in criminal law and procedure. He is also an affiliate scholar with Northeastern University's Center for Law, Innovation and Creativity. He previously served as a law clerk to the Honorable Ruth Bader Ginsburg and to the Honorable David H. Souter of the United States Supreme Court, and as a senior litigation associate in the criminal investigations group of WilmerHale, in Washington, D.C.
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Trump’s challenge to the Mar-a-Lago search is based largely on Fourth Amendment claims. Those claims are unusual, interesting, ultimately meritless, and likely driven by strategic interests having little to do with constitutional law.
The emerging three-factor Carpenter test should become the primary standard for Fourth Amendment searches, replacing the test that has prevailed for over 50 years.
Courts are split on whether telephone pole camera surveillance of a house violates the Fourth Amendment, and the First Circuit just added to the confusion.
An analysis of the federal and state judgments applying Carpenter illuminates both the present state of the law and the paths along which it will likely continue to develop.