Constitutional cacophony: Federal circuit splits and the fourth amendment

Vanderbilt Law Review

Volumn 65, Issue 5, 2012, Pages 1137-1203

  Logan, Wayne A ^a  

^a FLORIDA STATE UNIVERSITY   (United States)

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EID: 84869988664     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (418)

1. See The Supreme Court - The Statistics, 125 HARV. L. REV. 362, 369 (2011) noting that the Court granted only 1.1% of 7,868 petitions filed in its 2010 Term).
2. See United States v. Green, 111 F.3d 515, 521-23 (7th Cir. 1997)
3. See United States v. Gross, 662 F.3d 393, 405-06 (6th Cir. 2011).
4. See United States v. Luckett, 484 F.2d 89, 90-91 (9th Cir. 1973).
5. See United States v. Lopez, 443 F.3d 1280, 1286 (10th Cir. 2006).
6. THE FEDERALIST NO. 2, at 38-39 (John Jay) (Clinton Rossiter ed., 1961);
7. see also, e.g., RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION 130 (2001) ("[O]ur sense of national identity as a people literally constituted by the Constitution is linked indissolubly with ideals of common constitutional rights . . . . [N]ational ideals require national enforcement as an affirmation of our shared nationhood.");
8. James A. Gardner, The Failed Discourse of State Constitutionalism, 90 MICH. L. REV. 762, 824 (1992) ("Our constitutional language and culture hold the U.S. Constitution to be the repository of the fundamental values of the national community, a community to which every citizen belongs.").
9. See CHARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL COURTS § 3, at 11 (7th ed. 2011) (noting existence of eleven numbered circuit courts of appeals, encompassing states and territories, and the court of appeals for the District of Columbia).
10. See Tracey E. George & Chris Guthrie, Remaking the United States Supreme Court in the Courts' of Appeals Image, 58 DUKE L.J. 1439, 1449 (2009) (recognizing that the Court addresses less than half of the circuit splits identified by litigants).
11. FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 2 (2007);
12. Richard A. Posner, Judicial Behavior and Performance: An Economic Approach, 32 Fla. St. U. L. Rev. 1259, 1273 (2005) ("Entire fields of law are left mainly to the courts of appeals to shape.").
13. See, e.g., Mary Garvey Algero, A Step in the Right Direction: Reducing Intercircuit Conflicts by Strengthening the Value of Federal Appellate Court Decisions, 70 Tenn. L. Rev. 605, 608 (2003);
14. Martha Dragich, Uniformity, Inferiority, and the Law of the Circuit Doctrine, 56 Loy. L. Rev. 535, 549 (2010);
15. Amanda Frost, Overvaluing Uniformity, 94 VA. L. REV. 1567, 1569 (2008).
16. J. Harvie Wilkinson III, If It Ain't Broke, 119 Yale L.J. Online 67, 69 (2010).
17. See THOMAS K. CLANCY, THE FOURTH AMENDMENT: ITS HISTORY AND INTERPRETATION xix (2008) (observing that the Fourth Amendment "is the most commonly implicated and litigated part of our Constitution" and that it serves as "the foundation upon which other freedoms rest").
18. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 415-16 (1821) (Marshall, C.J.) (asserting "the necessity of uniformity" and that "nothing but contradiction and confusion can proceed" from the Court's failure to resolve constitutional conflict);
19. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 347-48 (1816) (Story, J.) (emphasizing "the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution" and condemning disuniformity as "truly deplorable"). For a more recent pronouncement to this same effect
20. see Justices in Their Own Words: Granting Certiorari (C-SPAN television broadcast June 19, 2009), available at http://supremecourt.c-span.org/Video/ JusticeOwnWords.aspx (Chief Justice John Roberts) ("Our main job is to try to make sure [that] federal law is uniform across the country.").
21. see also Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill, 100 Collum. L. Rev. 1643, 1685, 1697-98 (2000) (noting testimony of Chief Justice Taft and Justice Van Devanter before Congress on how the expansion of the Court's certiorari prerogative and discretionary docket, with adoption of the Judges' Bill of 1925, would promote uniformity in federal law).
22. See JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS 23 (2005) ("When Americans speak of 'constitutional law,' they invariably mean the U.S. Constitution and the substantial body of federal judicial decisions construing it."). Of course, state courts also enjoy authority to interpret the Federal Constitution and their decisions can engender disuniformity. However, the discussion here is limited to intrafederal judicial disagreement, involving the varied judgments of a single sovereign's courts, which raises a distinct array of concerns. In future work, I plan to address the contributing role of state courts.
23. See, e.g., Kenneth W. Starr, The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Taft, 90 Minn. L. Rev. 1363, 1366 (2006) (noting that we are witnessing the "great disappearing merits docket");
24. David R. Stras, The Supreme Court's Declining Plenary Docket: A Membership-Based Explanation, 27 Const. Comment. 151, 152 (2010) (characterizing recent decline in the Court's plenary docket as "extraordinary");
25. Linda Greenhouse, On the Court That Defied Labeling, Kennedy Made the Boldest Mark, N.Y. TIMES, June 29, 2008, at A1 (noting that the 2008 Term resulted in the fewest number of opinions of any since 1953).
26. U.S. CONST. art. III, § 1.
27. see also ERWIN C. SURRENCY, HISTORY OF THE FEDERAL COURTS 21-27 (1987). 31. § 4, 1 Stat. at 74.
28. The Circuit Courts of Appeals Act of 1891, ch. 517, 26 Stat. 826.
29. See, e.g., United States v. Guzman, 419 F.3d 27, 31 (1st Cir. 2005) (noting that later panels are "firmly bound" by decisions of earlier panels and referring to the requirement as the "law-of-the-circuit" doctrine);
30. see also Stephen L. Wasby, Inconsistency in the United States Courts of Appeals: Dimensions and Mechanisms for Resolution, 32 Vand. L. Rev. 1343, 1344 (1979).
31. see also Laurie R. Wallach, Intercircuit Conflicts and the Enforcement of Extracircuit Judgments, 95 YALE L.J. 1500, 1500 (1986) ("Circuits lack the executive and legislative attributes of sovereignty that make jurisdictional boundaries meaningful; yet, though they are merely arms of a single sovereign, they enjoy independence from one another when interpreting federal law . . . . [C]ircuits [are] something 'less' sovereign than states but 'more' than mere coordinate courts . . . .").
32. See Warren E. Burger, Annual Report on the State of the Judiciary, 69 A.B.A. J. 442, 445-46 (1983) (contending that a "clear majority" of Justices felt that "something must be done" about Court's caseload);
33. Paul D. Carrington, Crowded Dockets and the Courts of Appeals: The Threat to the Function of Review and the National Law, 82 HARV. L. REV. 542, 580 (1969) ("The 'law of the circuit' has emerged as a response to the Supreme Court's incapacity to resolve intercircuit conflicts."). At least one commentator, however, offered that the Court's docket selection choices, including unimportant cases, and penchant for plurality opinions, belied assertions of excessive caseload.
34. See Arthur D. Hellman, Caseload, Conflicts, and Decisional Capacity: Does the Supreme Court Need Help?, 67 JUDICATURE 28, 32-34 (1983).
35. Erwin Griswold, Rationing Justice - The Supreme Court's Caseload and What the Court Does Not Do, 60 CORNELL L. REV. 335, 342 (1974) (observing that "sharply rationed review" by the Supreme Court means "it is hard to say that there is any national law on many subjects");
36. Shirley Hufstedter, Courtship and Other Legal Arts, 60 A.B.A. J. 545, 546-47 (1974) (lamenting the "lack of certitude" in national law due to insufficient "ironing out" of "wrinkles").
37. See ADVISORY COUNCIL FOR APPELLATE JUSTICE, 4 APPELLATE JUSTICE: 1975 (Paul Carrington et al. eds., 1975);
38. AM. BAR FOUND., ACCOMMODATING THE WORKLOAD OF THE UNITED STATES COURTS OF APPEALS (1968);
39. COMM'N ON REVISION OF THE FED. COURT APPELLATE SYS., STRUCTURE AND INTERNAL PROCEDURES: RECOMMENDATIONS FOR CHANGE, reprinted in 67 F.R.D. 195 (1975) [hereinafter HRUSKA COMMISSION REPORT];
40. REPORT OF THE STUDY GROUP OF THE CASELOAD OF THE SUPREME COURT, 57 F.R.D. 573 (1972) [hereinafter FREUND COMMITTEE REPORT]. For a helpful overview of the extended series of reform efforts
41. see Thomas E. Baker, A Generation Spent Studying the United States Courts of Appeals: A Chronology, 34 U.C. DAVIS L. REV. 395 (2000).
42. See AM. ENTER. INST., PROPOSALS FOR A NATIONAL COURT OF APPEALS 27-36 (1977) (discussing failure of the Hruska Commission, as well as similar prior effort of the Freund Committee);
43. Todd E. Thompson, Increasing Uniformity and Capacity in the Federal Appellate System, 11 HASTINGS CONST. L.Q. 457, 474-81 (1984).
44. JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 3 (1990).
45. Arthur D. Hellman, By Precedent Unbound: The Nature and Extent of Unresolved Intercircuit Conflicts, 56 U. PITT. L. REV. 693, 697 (1995).
46. Todd Miller, A Court of Tax Appeals Revisited, 85 YALE L.J. 228, 228-29 (1975) (tax).
47. Arthur D. Hellman, Never the Same River Twice: The Empirics and Epistemology of Intercircuit Conflicts, 63 U. PITT. L. REV. 81, 123-24 (2001) (identifying as the "paradigm of the outcome-determinative conflict" varied views on how mutual fund shares in a decedent's estate should be valued for federal tax purposes).
48. See Arthur D. Hellman, Light on a Darkling Plain: Intercircuit Conflicts in the Perspective of Time and Experience, 1998 SUP. CT. REV. 247, 253 (stating that unresolved circuit splits would have little impact on criminal defendants);
49. See, e.g., Kyllo v. United States, 530 U.S. 1305 (2000) (simultaneously granting petitioner motion to proceed in forma pauperis and petition for writ of certiorari).
50. See generally STEPHEN A. SALTZBURG & DANIEL J. CAPRA, AMERICAN CRIMINAL PROCEDURE: CASES AND COMMENTARY 849-51 (9th ed. 2010) (surveying post-trial limits on availability of government-appointed counsel).
51. The following query was used in the "cta" database (containing all intermediate federal court cases): Division divide! conflict! split inconsisten! differ! disagree! uncertain! /p "court of appeal" circuit "federal court" & fourth "4th amendment" "amend. 4" search seiz!.
52. See A. Benjamin Spencer, SPLIT CIRCUITS, http://splitcircuits.blogspot. com (last visited Dec. 10, 2011).
53. See Split Circuits, USLAW, http://www.uslaw.com/law-blogs/Split+Circuits? blog=47 (last visited Dec. 10, 2011).
54. An approach like that recently used by Professors George and Solimine. See Tracey E. George & Michael E. Solimine, Supreme Court Monitoring of the United States Courts of Appeals En Banc, 9 SUP. CT. ECON. REV. 171, 188 (2001) (classifying "a case as involving an intercircuit split only if any member of the panel explicitly stated that another circuit or circuits had reached a different decision in analogous circumstances and if the conflict was express and direct rather than merely a matter of general or logical inconsistency");
55. see also Arthur D. Hellman, Breaking the Banc: The Common-Law Process in the Large Appellate Court, 23 ARIZ. ST. L.J. 915, 922-41 (1991) (adopting a similar approach).
56. See, e.g., United States v. Poe, 556 F.3d 1113, 1123-24 (10th Cir. 2009) (adopting a narrow view of whether private actors qualify as government agents, ignoring a contrary position adopted by Fourth Circuit in Jackson v. Pantazes, 810 F.2d 426, 430 (4th Cir. 1987)).
57. See, e.g., Commonwealth v. Narcisse, 927 N.E.2d 439, 446-47 (Mass. 2010) (noting federal circuit variation on whether police can conduct a protective Terry frisk of an individual subject to a consensual encounter, absent reasonable suspicion that the individual is or was involved in criminal activity).
58. See U.S. CONST. amend. IV.
59. Whether the Fourth Amendment ensures a collective or individual right of privacy and bodily security has long been the source of debate. See, e.g., Donald L. Dorenberg, The Right of the People: Reconciling Collective and Individual Interests Under the Fourth Amendment, 58 N.Y.U. L. REV. 259, 282-83 (1983) (noting contrast between the Court's view of the exclusionary rule as serving the collective interest in deterring police misconduct (versus vindicating individual rights), and its approach to standing, which is conditioned on whether an individual has a right to contest a search or seizure). The circuit splits identified here, however, implicate the distinct question of rights being available to some but not other "people," based not on personal circumstance but rather on specific geographic location within the larger national political community.
60. See United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (" '[T]he people' seems to have been a term of art employed in select parts of the Constitution . . . . [Its use] suggests that 'the people' protected by the Fourth Amendment . . . refers to a class of persons who are part of a national community . . . .").
61. The doctrinal variation, moreover, is not always dichotomous in form. While circuits most often divide into two jurisprudential camps, they can also reflect three or more approaches to a particular issue, magnifying the nature and scope of variation. Multicircuit splits exist, for example, on the issue of the definition of "reason to believe" sufficient to justify entering the home of the target of an arrest warrant, see United States v. Hill, 649 F.3d 258, 262-63 (4th Cir. 2011); the standard used to assess whether police would have inevitably discovered challenged evidence in the absence of an unlawful search
62. see United States v. Marrocco, 578 F.3d 627, 640 n.24 (7th Cir. 2009); and whether an unauthorized driver of a rental vehicle, driving with the permission of the renter, has standing to challenge a vehicle search
63. see United States v. Thomas, 447 F.3d 1191, 1196-99 (9th Cir. 2006).
64. See 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 5.2(b) (4th ed. 2004) (noting that only consensual searches exceed in volume searches incident to arrest).
65. See Wayne A. Logan, An Exception Swallows a Rule: Police Authority to Search Incident to Arrest, 19 YALE L. & POL'Y REV. 381, 385-90 (2001).
66. Chimel v. California, 395 U.S. 752, 762-63 (1969).
67. United States v. Silva, 745 F.2d 840, 847 (4th Cir. 1984).
68. United States v. Johnson, 846 F.2d 279, 281-82 (5th Cir. 1988).
69. United States v. Tejada, 524 F.3d 809, 812 (7th Cir. 2008).
70. United States v. Palumbo, 735 F.2d 1095, 1097 (8th Cir. 1984).
71. United States v. Abdul-Saboor, 85 F.3d 664, 668 (D.C. Cir. 1996).
72. United States v. Myers, 308 F.3d 251, 268-74 (3d Cir. 2002).
73. See, e.g., United States v. Currence, 446 F.3d 554, 557 (4th Cir. 2006) ("[O]fficers may separate the suspect from the item to be searched . . . before they conduct the search.");
74. See Jamie L. Starbuck, Comment, Redefining Searches Incident to Arrest: Gant's Effect on Chimel, 116 PENN. ST. L. REV. 1253, 1263 (2012) ("Parties in seventeen different search incident to arrest cases over time have filed for certiorari; the Supreme Court has denied each petition.").
75. Wayne A. Logan, Police Mistakes of Law, 61 EMORY L.J. 69, 70 (2011).
76. E.g., United States v. Martin, 411 F.3d 998, 1001 (8th Cir. 2005).
77. See, e.g., United States v. Coplin, 463 F.3d 96, 101 (1st Cir. 2006) ("Stops premised on a mistake of law, even a reasonable, good-faith mistake, are generally held to be unconstitutional.");
78. United States v. McDonald, 453 F.3d 958, 962 (7th Cir. 2006) ("A stop based on a subjective belief that a law has been broken, when no violation actually occurred, is not objectively reasonable.");
79. United States v. Tibbets, 396 F.3d 1132, 1138 (10th Cir. 2005) ("[F]ailure to understand the law by the very person charged with enforcing it is not objectively reasonable.");
80. United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000) ("[An officer's] belief based on a mistaken understanding of the law cannot constitute the reasonable suspicion required for a constitutional traffic stop.").
81. See, e.g., United States v. Chanthasouxat, 342 F.3d 1271, 1277 (11th Cir. 2003) ("[A]n officer's mistaken assessment of facts need not render his actions unreasonable because what is reasonable will be completely dependent on the specific and usually unique circumstances presented by each case.").
82. See Wayne A. Logan, Erie and Federal Criminal Courts, 63 Vand. L. Rev. 1243, 1247-48 (2010) (discussing use of traffic stops to secure evidence in support of more serious prosecutions).
83. See generally Arnold H. Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81 MICH. L. REV. 1229, 1229-31 (1983).
84. For discussion of how Fourth Amendment doctrine can affect the daily life and behaviors of individuals more generally, see L. Rush Atkinson, The Bilateral Fourth Amendment and the Duties of Law-Abiding Persons, 99 GEO. L.J. 1517, 1521-26 (2011).
85. See New York v. Belton, 453 U.S. 454, 459-60 (1981). While such uncertainty is most acute in instances involving police-citizen interactions at circuit borders, splits also affect outcomes in other instances, such as when a circuit lacks precedent on an issue.
86. United States v. Taylor, 600 F.3d 678, 686 (6th Cir. 2010) (Kethledge, J., dissenting).
87. Again, the conservative methodology used here offers a mere snapshot of extant splits, excluding, for instance, consideration of splits that did not manifest in the study period. For example, a split exists over whether police have a per se right to frisk the companion of an arrestee. See United States v. Bell, 762 F.2d 495, 498 (6th Cir. 1985)
88. noting disagreement with United States v. Berryhill, 445 F.2d 1189 (9th Cir. 1971)
89. While recent decisions such as Arizona v. Johnson, 555 U.S. 323 (2009), emphasize the need for individualized suspicion of a weapon being present to justify a Terry frisk, the "automatic companion" split continues to be recognized.
90. E.g., Glantz v. Ren, No. CV 09-149-M-DWM-JCL, 2010 WL 4286234, at 8 n.7 (D. Mont. Sept. 16, 2010). A split also exists on whether one has an expectation of privacy regarding packages addressed to an alias.
91. United States v. Lozano, 623 F.3d 1055, 1062-64 (9th Cir. 2010) (O'Scannlain, J., concurring)
92. citing United States v. Lewis, 738 F.2d 916, 920 (8th Cir. 1984) (denying expectation)
93. and United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992) (allowing expectation)).
94. See Ruth Bader Ginsburg, Workways of the Supreme Court, 25 T. JEFFERSON L. REV. 517, 517 (2003) ("For the most part, the Supreme Court will consider for review only cases presenting what we call deep splits - questions on which other courts . . . have strongly disagreed.");
95. For a discussion of the costs associated with such uncertainty by a Senior Second Circuit Judge, see Roger J. Miner, Federal Court Reform Should Start at the Top, 77 JUDICATURE 104, 106-07 (1993) ("Where the Supreme Court has not spoken on an issue, but some circuits have resolved the question in one way and some in another, litigation is encouraged in those circuits that have not yet spoken.");
96. See, e.g., United States v. Davis, 131 S. Ct. 2419, 2423-25 (2011) (addressing whether the "good faith" exception to the exclusionary rule applies to officer reliance on settled case law);
97. Muehler v. Mena, 544 U.S. 93, 95 (2005) (determining whether police can ask a detainee questions unrelated to the basis for detention, not resulting in seizure delay);
98. Devenpeck v. Alford, 543 U.S. 146, 148, 155-56 (2004) (addressing whether, when police arrest on a legally invalid basis, an alternate legal (yet unarticulated) basis must be "closely related").
99. See Huff v. City of Burbank, 632 F.3d 539, 548-49 (9th Cir. 2011) (noting and rejecting position of other circuits that emergency and exigency doctrines for warrantless police entries of residences are not distinct)
100. cert. granted sub nom. Ryburn v. Huff, 132 S. Ct. 987 (2012);
101. United States v. Maynard, 615 F.3d 544, 556, 563-64 (D.C. Cir. 2010) (noting split on whether attaching global positioning device to car and tracking it for extended period implicates Fourth Amendment, and determining that they do)
102. cert. granted sub nom. United States v. Jones, 131 S. Ct. 3064 (2011);
103. Florence v. Bd. of Chosen Freeholders of Burlington, 621 F.3d 296, 298-99, 311 (3d Cir. 2010) (noting split on permissibility of suspicionless strip searches of minor offense arrestees and determining that they are permissible)
104. See United States v. Bailey, 652 F.3d 197, 204 (2d Cir. 2011) (noting split among five other circuits on the question)
105. cert. granted Bailey v. United States, 132 S. Ct. 2710 (2012).
106. See Tafflin v. Levitt, 493 U.S. 455, 465 (1990) (noting the "inconsistency . . . which a multimembered, multi-tiered federal judicial system . . . creates").
107. RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 380 (1996).
108. See Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 488 (1900) ("Comity is not a rule of law, but one of practice, convenience, and expediency. It is something more than mere courtesy . . . . But its obligation is not imperative. If it were, the indiscreet action of one court might become a precedent, increasing in weight with each successive adjudication, until the whole country was tied down to an unsound principle."); see also id. (averring that judges should do what they think is "right").
109. See DAVID E. KLEIN, MAKING LAW IN THE UNITED STATES COURTS OF APPEALS 22-25 (2002) (discussing results of circuit judge survey identifying intercircuit uniformity as being of least importance among several goals in decisionmaking).
110. But see Stephen L. Wasby, Intercircuit Conflicts in the Courts of Appeals, 63 MONT. L. REV. 119, 123-24, 129 (2002) (concluding, based on a study of Ninth Circuit case files, that "appellate judges take seriously the charge to reduce or minimize . . . conflicts before they reach the Supreme Court").
111. Frederic M. Bloom, State Courts Unbound, 93 CORNELL L. REV. 501, 512 (2008).
112. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("Those who apply the rule to particular cases, must of necessity expound and interpret that rule.").
113. See Evan H. Caminiker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEX. L. REV. 1, 10-11 (1994) ("Deciding what a precedent means will frequently depend on the particular normative values and assumptions each judge brings to the interpretive enterprise.").
114. See Jason Mazzone, When the Supreme Court Is Not Supreme, 104 NW. U. L. REV. 979, 1041-42 (2010) ("The Justices understand that they are setting rules for a diverse nation . . . and that it is normally better not to decide more than is necessary for the satisfactory disposition of the case at hand."). On the purported virtues of the shift
115. see CASS R. SUNSTEIN, ONE CASE AT A TIME (2001).
116. See Scott v. United States, 436 U.S. 128, 139 (1978) ("Because of the necessarily ad hoc nature of any determination of reasonableness, there can be no inflexible rule of law which will decide every case.");
117. cf. Steven L. Winter, Indeterminacy and Incommensurability in Constitutional Law, 78 CALIF. L. REV. 1441 (1990) (discussing constitutional indeterminacy more generally).
118. See, e.g., Terry v. Ohio, 392 U.S. 1, 15 (1968) (acknowledging the "protean variety of the street encounter").
119. See, e.g., Scott v. Harris, 550 U.S. 372, 383 (2007) (recognizing the common need for courts to "slosh [their] way through the factbound morass of 'reasonableness' " in such claims).
120. See, e.g., United States v. Arvizu, 534 U.S. 266, 273-76 (2002) (noting the need for courts in assessing reasonable suspicion to consider the "totality of the circumstances," based on particular facts of situations and officers' specialized training).
121. See Corey R. Yung, Judged By the Company You Keep: An Empirical Study of the Ideologies of Judges on the United States Courts of Appeals, 51 B.C. L. REV. 1133, 1181-82 (2010).
122. See Guido Calabresi, The Exclusionary Rule, 26 HARV. J.L. & PUB. POL'Y 111, 111 (2003) ("To conservatives, [the exclusionary rule] is an absurd rule through which manifestly dangerous criminals are let out because the courts prefer technicalities to truth.").
123. See, e.g., Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) ("[T]he first panel to consider an issue sets the law not only for all the inferior courts in the circuit, but also future panels of the court of appeals.")
124. see also Arthur D. Hellman, "The Law of the Circuit" Revisited: What Role for Majority Rule?, 32 S. ILL. U. L.J. 625, 625 (2008) (noting that "binding circuit law can be established by a panel whose views do not represent the views of a majority of the circuit's active judges").
125. See Pauline T. Kim, Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects, 157 U. PA. L. REV. 1319, 1338 n.71 (2009) (citing studies showing that the likelihood of a court hearing a case en banc is considerably less than one percent);
126. Amy E. Sloan, The Dog That Didn't Bark: Stealth Procedures and the Erosion of Stare Decisis in the Federal Courts of Appeals, 78 FORDHAM L. REV. 713, 754-55 (2009).
127. See Tracey E. George, The Dynamics and Determinants of the Decision To Grant En Banc Review, 74 WASH. L. REV. 213, 219-20 (1999).
128. See Michael P. Van Alstine, Stare Decisis and Foreign Affairs, 61 DUKE L.J. 941, 1019 (2012) ("[Stare decisis] doctrine is severe indeed. It prohibits reexamination of the first panel's precedent even in light of subsequent insights from other circuits.").
129. See Thomas K. Clancy, The Irrelevancy of the Fourth Amendment in the Roberts Court, 85 CHI.-KENT L. REV. 191, 200-07 (2010) (discussing an array of limits imposed on the exclusionary rule during the Rehnquist and Roberts Courts);
130. see also Frank Cross et al., A Positive Political Theory of Rules and Standards, 2012 ILL. L. REV. 1, 37-38 (noting pre-
131. See Guido Calabresi, The Exclusionary Rule, 26 HARV. J.L. & PUB. POL'Y 111, 111 (2003) ("To conservatives, [the exclusionary rule] is an absurd rule through which manifestly dangerous criminals are let out because the courts prefer technicalities to truth.").
132. See, e.g., Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) ("[T]he first panel to consider an issue sets the law not only for all the inferior courts in the circuit, but also future panels of the court of appeals.");
133. see also Arthur D. Hellman, "The Law of the Circuit" Revisited: What Role for Majority Rule?, 32 S. ILL. U. L.J. 625, 625 (2008) (noting that "binding circuit law can be established by a panel whose views do not represent the views of a majority of the circuit's active judges").
134. See Pauline T. Kim, Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects, 157 U. PA. L. REV. 1319, 1338 n.71 (2009) (citing studies showing that the likelihood of a court hearing a case en banc is considerably less than one percent);
135. Amy E. Sloan, The Dog That Didn't Bark: Stealth Procedures and the Erosion of Stare Decisis in the Federal Courts of Appeals, 78 FORDHAM L. REV. 713, 754-55 (2009).
136. While Federal Rule of Appellate Procedure 35(b)(1)(B) suggests that a split may warrant attention in considering a petition for en banc hearing, such hearings do not appear to occur in significant part due to splits. See Tracey E. George, The Dynamics and Determinants of the Decision To Grant En Banc Review, 74 WASH. L. REV. 213, 219-20 (1999).
137. See Michael P. Van Alstine, Stare Decisis and Foreign Affairs, 61 DUKE L.J. 941, 1019 (2012) ("[Stare decisis] doctrine is severe indeed. It prohibits reexamination of the first panel's precedent even in light of subsequent insights from other circuits.").
138. See Thomas K. Clancy, The Irrelevancy of the Fourth Amendment in the Roberts Court, 85 CHI.-KENT L. REV. 191, 200-07 (2010) (discussing an array of limits imposed on the exclusionary rule during the Rehnquist and Roberts Courts);
139. see also Frank Cross et al., A Positive Political Theory of Rules and Standards, 2012 ILL. L. REV. 1, 37-38 (noting pre-
140. J. Clifford Wallace, The Nature and Extent of Intercircuit Conflicts: A Solution Needed for a Mountain or a Molehill?, 71 CALIF. L. REV. 913, 923, 929 (1983).
141. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.").
142. see also J. WOODFORD HOWARD, JR., COURTS OF APPEALS IN THE FEDERAL JUDICIAL SYSTEM: A STUDY OF THE SECOND, FIFTH, AND DISTRICT OF COLUMBIA CIRCUITS 81 (1981) ("[T]he quest for uniformity contains room for regional experimentation and adaptation of national law to continental diversity.").
143. Jennifer K. Luse et al., "Such Inferior Courts ": Compliance by Circuits with Jurisprudential Regimes, 37 AM. POL. RES. 75, 77-78 (2009) (citation omitted).
144. See, e.g., Truax v. Corrigan, 257 U.S. 312, 338 (1921) ("The Constitution was intended - its very purpose was - to prevent experimentation with the fundamental rights of the individual."). A similar view was voiced by Justice Goldberg several decades later: While I quite agree with Mr. Justice Brandeis that a "State may . . . serve as a laboratory; and try novel social and economic experiments," I do not believe that this includes the power to experiment with the fundamental liberties of citizens . . . . I cannot agree that the Constitution grants such power either to the States or to the Federal Government.
145. Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (Goldberg, J., concurring) (citations omitted);
146. see also Smith v. United States, 431 U.S. 291, 312 n.5 (1977) (Stevens, J., dissenting) ("Communities vary . . . in many respects . . . and such variances have never been considered to require or justify a varying standard for application of the Federal Constitution . . . . It is, after all, a national Constitution we are expounding." (citations omitted)).
147. See Michael Abramowicz et al., Randomizing Law, 159 U. PA. L. REV. 929, 947 (2011) ("The difficulties that social scientists and especially policymakers face in assessing the results of state innovations contribute to the inaptness of the states-as-laboratories metaphor.");
148. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 923-26 (1994) (questioning whether states can actually serve as laboratories of experimentation).
149. Circuit precedent can also affect outcomes in unexpected contexts. For instance, the Board of Immigration Appeals generally applies the law of the circuit in which a case arises. See Irene Scharf, The Exclusionary Rule in Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, 12 SAN DIEGO INT'L L.J. 53, 86 (2010).
150. In state courts, federal rights claims can be controlled or at least influenced by the law of the circuit in which they are located. See Amanda Frost & Stefanie A. Lindquist, Countering the Majoritarian Difficulty, 96 VA. L. REV. 719, 761 (2010). Finally, as discussed later, the practical effect of a circuit adopting a position can extend well beyond that circuit, affecting rights of individuals who find themselves criminally prosecuted in another circuit.
151. See generally Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416, 416 (1956) (discussing a model that "yields a solution for the level of expenditures for local public goods which reflects the preferences of the population more adequately than they can be reflected at the national level").
152. See generally ROBERT D. COOTER, THE STRATEGIC CONSTITUTION 127-29 (2000). On exit more generally
153. see ALBERT O. HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES 21-29 (1970).
154. For examples of the expansive literature critiquing Tiebout's model on similar grounds, see, for example, Vicki Been, "Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 Collum. L. Rev. 473, 515-17 (1991).
155. See Todd E. Pettys, The Mobility Paradox, 92 GEO. L.J. 481, 489-90 (2004).
156. Mark D. Rosen, The Surprisingly Strong Case for Tailoring Constitutional Principles, 153 U. PA. L. REV. 1513, 1606-07 (2005) (discussing why smaller polities have smaller exit costs). That Fourth Amendment rights might be thought to disproportionately affect the poor, lacking in relative mobility wherewithal yet the common focus of street-level policing, further undercuts reason to think that foot-voting will be operative.
157. See Richard Briffault, Our Localism: Part II - Localism and Legal Theory, 90 Collum. L. Rev. 346, 420-21 (1990) (noting that mobility "is constrained by a variety of economic factors that tend to affect poorer people more than affluent ones").
158. See Daniel J. Meador, A Challenge to the Judicial Architecture: Modifying the Regional Design of the U.S. Courts of Appeal, 56 U. CHI. L. REV. 603, 605 (1989) ("In the [Courts of Appeals], there are numerous judges sitting in constantly shifting panels of three to which cases are routed on a random basis. The active judges in each circuit are frequently joined by senior judges, visiting judges from other circuits, and district judges sitting by designation . . . .").
159. See Carl Tobias, Sixth Circuit Federal Judicial Selection, 36 U.C. DAVIS L. REV. 721, 726 (2003) (discussing the likelihood that federal trial judges have greater familiarity with local norms and practice).
160. See Todd E. Pettys, The Mobility Paradox, 92 GEO. L.J. 481, 489-90 (2004).
161. Mark D. Rosen, The Surprisingly Strong Case for Tailoring Constitutional Principles, 153 U. PA. L. REV. 1513, 1606-07 (2005) (discussing why smaller polities have smaller exit costs). That Fourth Amendment rights might be thought to disproportionately affect the poor, lacking in relative mobility wherewithal yet the common focus of street-level policing, further undercuts reason to think that foot-voting will be operative.
162. See Richard Briffault, Our Localism: Part II - Localism and Legal Theory, 90 Collum. L. Rev. 346, 420-21 (1990) (noting that mobility "is constrained by a variety of economic factors that tend to affect poorer people more than affluent ones").
163. See Daniel J. Meador, A Challenge to the Judicial Architecture: Modifying the Regional Design of the U.S. Courts of Appeal, 56 U. CHI. L. REV. 603, 605 (1989) ("In the [Courts of Appeals], there are numerous judges sitting in constantly shifting panels of three to which cases are routed on a random basis. The active judges in each circuit are frequently joined by senior judges, visiting judges from other circuits, and district judges sitting by designation . . . .").
164. See Carl Tobias, Sixth Circuit Federal Judicial Selection, 36 U.C. DAVIS L. REV. 721, 726 (2003) (discussing the likelihood that federal trial judges have greater familiarity with local norms and practice).
165. See Clay Calvert, The End of Forum Shopping in Internet Obscenity Cases? The Ramifications of the Ninth Circuit's Groundbreaking Understanding of Community Standards in Cyberspace, 89 NEB. L. REV. 47, 73-79 (2010).
166. See generally William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489 (1977). Moreover, as earlier noted, a circuit position can influence state court interpretations of federal constitutional law in state court litigation.
167. See Alexander M. Bickel, The Supreme Court, 1960 Term, Foreword: The Passive Virtues, 75 HARV. L. REV. 40 (1961) (asserting that a key feature of the Court's perceived legitimacy is its prudential restraint in deciding when to address an issue).
168. See SAMUEL ESTREICHER & JOHN SEXTON, REDEFINING THE SUPREME COURT'S ROLE 48 (1986) ("The Supreme Court, when it decides a fully percolated issue, thus has the benefit of the experience of those lower courts, often yielding concrete information about how a particular rule will 'write,' its capacity for dealing with varying fact patterns, and the merits of alternate approaches.");
169. Charles L. Black, Jr., The National Court of Appeals: An Unwise Proposal, 83 YALE L.J. 883, 898 (1974) ("[Splits] can be endured and sometimes ought to be endured while judges and scholars observe the respective workings out in practice of the conflicting rules, particularly where the question of law is a close one, to which confident answer will in any case be impossible.");
170. Richard Revesz, Specialized Courts and the Administrative Lawmaking System, 138 U. PA. L. REV. 1111, 1155 (1990) ("Intercircuit dialogue not only benefits the quality of adjudication by the courts of appeals, but also aids the Supreme Court's adjudication of cases involving conflicts among the circuits.");
171. Ruth Bader Ginsburg & Peter W. Huber, The Intercircuit Committee, 100 HARV. L. REV. 1417, 1425 (1987).
172. See, e.g., E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 135 n.26 (1977) (positing "the wisdom of allowing difficult issues to mature through full consideration by the courts of appeals").
173. Margaret Meriwether Cordray & Richard Cordray, The Philosophy of Certiorari: Jurisprudential Considerations in Supreme Court Case Selection, 82 WASH. U. L.Q. 389, 402 (2004).
174. ("Whether the Court refers to a conflict - or gives any reason for hearing the case - may depend on how the opinion is written and which Justice writes it."); Eric Hansford, Note, Measuring the Effects of Specialization with Circuit Split Resolutions, 63 STAN. L. REV. 1145, 1162 n.90 (2011) ("[T]he Justices may have incentives to present a split in a certain light, or inclinations toward not including the full split (or not including the split at all).").
175. See, e.g., Ornelas v. United States, 517 U.S. 690, 695, 695 n.4 (1996) (noting circuit split and stating that certiorari was granted to resolve the conflict);
176. United States v. Padilla, 508 U.S. 77, 81, 81 n.3 (1993) (same);
177. Hudson v. Palmer, 468 U.S. 517, 522, 522 n.5 (1984) (noting split in a footnote without mention that the split motivated grant of certiorari).
178. See, e.g., Immigration & Nationalization Serv. v. Delgado, 466 U.S. 210, 215 (1984) (stating that certiorari was granted because of split and because issue "has serious implications for the enforcement of immigration laws");
179. United States v. Jacobsen, 466 U.S. 109, 112-13 (1984) (stating that certiorari was granted because of split and "because [drug] field tests play an important role in the enforcement of the narcotics laws").
180. See United States v. Grigg, 498 F.3d 1070, 1076 n.4, 1081 (9th Cir. 2007)
181. (adopting position in conflict with Gaddis v. Redford, 364 F.3d 763 (6th Cir. 2007), on whether a stop can be based on suspicion of a completed misdemeanor).
182. Kentucky v. King, 131 S. Ct. 1849 (2011), not part of this study because it reviewed an opinion by the Kentucky Supreme Court, provides perhaps the optimal example of the idealized percolation process more generally. In King, the Court methodically identified and evaluated various approaches taken by state and federal courts on when police, faced with possible destruction of evidence, impermissibly "create" such an exigency, invalidating entry of a home without a search warrant.
183. (citing United States v. Robinson, 536 F.2d 1298, 1300 (9th Cir. 1976)). The Court disavowed the contrary position of the Sixth Circuit
184. see Hensley v. United States, 713 F.2d 220, 225 (6th Cir. 1983), with no explicit mention of the existence of a circuit split.
185. See, e.g., Petition for Writ of Certiorari, Massachusetts v. Shepherd, 468 U.S. 981 (1984) (No. 82-963), 1982 U.S. S. Ct. Briefs LEXIS 97.
186. United States v. Leon, 468 U.S. 897, 922-26 (1983). Yet another example arose in the October 2011 Term when the Court, while presumably granting certiorari to address a split acknowledged by the Ninth Circuit and the parties, issued a brief per curiam opinion granting certiorari and containing no reference whatsoever to the split.
187. See Ryburn v. Huff, 132 S. Ct. 987, 990-92 (2012) (implicitly declining to distinguish exigency and emergency exceptions to the warrant requirement, and failing to directly address whether the exigency exception also requires probable cause of wrongdoing inside residence)
188. rev'g Huff v. City of Burbank, 632 F.3d 539, 548 n.3 (9th Cir. 2011) (rejecting the position of the Sixth and Tenth Circuits merging the two exceptions, not requiring "both probable cause and exigent circumstances, including safety, for a warrantless entry into the home").
189. cf. Todd J. Tiberi, Supreme Court Denials of Certiorari in Conflicts Cases: Percolation or Procrastination?, 54 U. PITT. L. REV. 861, 879-81, 889 (1993) (finding that, of thirty-six "percolated" decisions concerning splits on statutory meaning, the Court cited lower courts for propositions important to its holding in only thirteen cases, and that delay in resolving conflicts did not improve the quality of decisions rendered, based on several measures).
190. But see Pamela C. Corley et al., Lower Court Influence on U.S. Supreme Court Opinion Content, 73 J. POL. 31, 37 (2011) (using plagiarism software to discern common overlap between language in court of appeals opinions and Supreme Court majority opinions, but failing to differentiate instances of factual recitations or "arguments relating to the substance of the legal questions facing the courts").
191. Second Circuit Judge Henry Friendly, for example, offered the following view: If a case involves questions of federal law of such importance to be reviewed by the Supreme Court, the views of the courts of appeals count, and should count, for little. I am unable to share the view, expressed on occasion by some polite Justices and entertained by some of my colleagues, that we have much to contribute in such cases; I doubt whether many of the Justices even read our opinions, at least on constitutional issues, except as these are filtered through the briefs of counsel or the memoranda of law clerks. Henry J. Friendly, Second Circuit Note, 1970 Term, 46 ST. JOHN'S L. REV. 406, 407 (1972).
192. see also Thomas E. Baker & Douglas E. McFarland, The Need for a New National Supreme Court, 100 HARV. L. REV. 1400, 1408 (1987) ("We cannot accept the underlying logic behind percolation - the notion that somehow a better reasoned Supreme Court decision will result from subjecting citizens in different parts of the country to differing interpretations of the same national law, either constitutional or statutory.");
193. See Walter V. Schaefer, Reducing Circuit Conflicts, 69 A.B.A. J. 452, 454 (1983) ("[N]owhere does the Constitution give the Supreme Court the authority to experiment with the legal rights of citizens. The common denominator of these rationalizations is a kind of institutional myopia that focuses on abstractions and ignores the impact of the law on real people.").
194. William H. Rehnquist, The Changing Role of the Supreme Court, 14 Fla. St. U. L. Rev. 1, 11 (1986).
195. see also Walter V. Schaefer, Reliance on the Law of the Circuit - A Requiem, 1985 DUKE L.J. 690, 690, 690 n.2 (asserting that percolation theory merely accords a "false legitimacy" for the Supreme Court's "deferring decisions on difficult issues").
196. United States v. Morrison, 529 U.S. 598, 616 n.7 (2000) (quoting Miller v. Johnson, 515 U.S. 900, 922-23 (1995));
197. see also William J. Brennan, Jr., The National Court of Appeals: Another Dissent, 40 U. CHI. L. REV. 473, 482 (1973) (identifying Court's role in part as being "to define the rights guaranteed by the Constitution");
198. Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895, 911 (1984) (recognizing the need for an "ultimately authoritative court at the apex of the judicial hierarchy").
199. See Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 209 (1985);
200. Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 Collum. L. Rev. 324, 356 (2006).
201. See Barry Friedman, Under the Law of Federal Jurisdiction: Allocating Cases Between Federal and State Courts, 104 Collum. L. Rev. 1211, 1218 (2004).
202. See Wayne A. Logan, Contingent Constitutionalism: State and Local Criminal Laws and the Applicability of Federal Constitutional Rights, 51 WM. & MARY L. REV. 143, 170 (2009) (discussing nationalizing effect of Fourteenth Amendment in particular).
203. See Jerold H. Israel, Selective Incorporation Revisited, 71 GEO. L.J. 253, 253 (1982) (discussing history of selective incorporation);
204. see also David M. O'Brien, Managing the Business of the Supreme Court, 45 PUB. ADMIN. REV. 667, 669 (1985) (noting a marked increase in the filing of federal constitutional criminal procedure claims in the post-World War II period).
205. See generally MICHAEL E. SOLIMINE & JAMES L. WALKER, RESPECTING STATE COURTS: THE INEVITABILITY OF JUDICIAL FEDERALISM 87-104 (1999).
206. Sandra Day O'Connor, Our Judicial Federalism, 35 CASE W. RES. L. REV. 1, 4 (1984) ("[A] single sovereign's laws should be applied equally to all . . . .").
207. see also Frank B. Cross, Shattering the Fragile Case for Judicial Review of Rulemaking, 85 VA. L. REV. 1243, 1249 (1999) ("A central feature of the rule of law is its horizontal consistency of application.");
208. See Gil Seinfeld, The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction, 97 CALIF. L. REV. 95, 97 (2009) ("[F]ederal courts are thought better able than state courts to supply uniform application of federal law . . . .");
209. see also Erwin Chemerinsky & Larry Kramer, Defining the Role of the Federal Courts, 1990 BYU L. REV. 67, 85 (suggesting that the "availability of a federal forum significantly advances th[e] goal" of uniform interpretation of federal law).
210. See Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005) (stating that federal question jurisdiction promotes uniform interpretation of federal law);
211. ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 5.2.1, at 272 (5th ed. 2007) ("Another frequently offered justification for federal question jurisdiction is the need to ensure uniformity in the interpretation of federal law.").
212. See Carey v. Musladin, 549 U.S. 70, 76 (2006) (recognizing that lower court conflicts "reflect[] [a] lack of guidance from th[e] Court");
213. see also Penny J. White, Relinquished Responsibilities, 123 HARV. L. REV. 120, 134 (2009) (noting that "it is almost commonplace for the Court to issue holdings that raise as many questions as are answered").
214. See Ryan J. Owens & Donald A. Simon, Explaining the Supreme Court's Shrinking Docket, 53 WM. & MARY L. REV. 1219, 1260 (2012) (suggesting that the Court's shrinking docket might engender public belief that the Court "does not work sufficiently hard or is not sufficiently fair, and, thereby, diminish the Court's legitimacy").
215. See Barry Friedman & Daniel Deacon, A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause, 97 VA. L. REV. 1877, 1937 (2011) (discussing ongoing disagreement over textual source of dormant commerce clause doctrine despite its undisputed historic functional role).
216. See FED. JUDICIAL CTR., REPORT OF THE STUDY GROUP ON THE CASELOAD OF THE SUPREME COURT (1972), reprinted in 57 F.R.D. 573, 578 (1973) (describing the core roles of Supreme Court as being "to define and vindicate rights guaranteed by the Constitution, to assure the uniformity of federal law, and to maintain the constitutional distribution of powers in our federal union").
217. See generally Jack M. Beerman, Qualified Immunity and Constitutional Avoidance, 2009 SUP. CT. REV.139. Indeed, such was the case in Pearson itself, regarding the "consent once removed" doctrine, resulting in the continued tolerance of a split identified here.
218. Justin F. Marceau, The Fourth Amendment at a Three-Way Stop, 62 ALA. L. REV. 687, 733-42 (2011).
219. discussing Stone v. Powell, 428 U.S. 465 (1976), and limits in federal habeas provisions that limit state prisoners' ability to seek federal habeas relief based on alleged Fourth Amendment violations).
220. United States v. Gerena, 667 F. Supp. 911, 927 (D. Conn. 1987). It warrants mention that the question of which legal framework to apply remains a vexing one for state courts as well.
221. See State v. Torres, 262 P.3d 1006 (Haw. 2011) (surveying various choice of law approaches adopted by state courts). In general, the area remains vastly underexamined and undertheorized, which is both odd and troublesome given the increasing state-state and state-federal cooperative efforts of law enforcement.
222. See, e.g., United States v. Gates, Crim. No. 08-42-P-H, 2008 WL 5382285 (D. Me. Dec. 19, 2008) (applying Fourth Circuit law on illegal seizures);
223. United States v. Longo, 70 F. Supp. 2d 225 (W.D.N.Y. 1999) (applying Sixth Circuit law of consent in motion to suppress wiretap);
224. United States v. Restrepo, 890 F. Supp. 180 (E.D.N.Y. 1995) (applying Sixth Circuit law on illegal seizures);
225. cf. United States v. Ferrara, 771 F. Supp. 1266 (D. Mass. 1991) (opining that federal prosecution in Connecticut would apply First Circuit law on wiretap permissibility).
226. Extracircuit effect also appears possible when courts assess whether other crimes, wrongs, or acts, occurring elsewhere, are admissible under Federal Rule of Evidence 404(b). See United States v. Ozuna, 129 F. Supp. 2d 1345, 1352 (S.D. Fla. 2001) (noting "choice of law conundrum" presented by consideration of prior Maryland arrest for drugs, based on varied Fourth and Eleventh Circuit doctrine, but deciding that arrest would have been permissible under Eleventh Circuit's more demanding standard)
227. See Herring v. United States, 555 U.S. 135, 141 n.2 (2009) (dismissing dissenting Justice Ginsburg's "majestic conception" of the exclusionary rule as it relates to judicial integrity, stating that "[m]ajestic or not, our cases reject this conception"). 242. 304 U.S. 64 (1938).
228. See Michael E. Solimine, The Future of Parity, 46 WM. & MARY L. REV. 1457, 1485-86 (2005) (citing Judge Richard Posner in support of that argument).
229. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (suit against federal government actors). Indeed, although beyond the ambit of the instant study, it warrants mention that the circuits are divided on basic questions concerning the litigation of civil rights suits.
230. See, e.g., Amelia A. Friedman, Note, Qualified Immunity in the Fifth Circuit: Identifying the "Obvious" Hole in Clearly Established Law, 90 TEX. L. REV. 1283, 1290-91 (2012) (noting, inter alia, a circuit split on whether courts can consider policies and regulations as sources of clearly established law);
231. Adrienne Lewis, Note, The Fourth Amendment - The Burden of Proof for Exigent Circumstances in a Warrantless Search Civil Action, 65 SMU L. REV. 221 (2012) (discussing circuit split on whether defendant or government has burden of proof regarding existence of exigent circumstances in instances of warrantless home entry by police).
232. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The expectation is that "every 'reasonable official would understand what he is doing violates [the law].' " Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987))
233. see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (stating that qualified immunity shields government actors "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known").
234. See MICHAEL AVERY ET AL., POLICE MISCONDUCT: LAW AND LITIGATION § 3.7 (2011) (noting same).
235. Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (en banc).
236. See John C. Jeffries, Reversing the Order of Battle in Constitutional Torts, 2009 SUP. CT. REV. 115, 131 (observing that costs of avoidance "are not measured solely, even chiefly, in the persistence of uncertainty in the law. The greater problem is the underenforcement of constitutional rights while such uncertainty continues.")
237. See al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009).
238. citing United States v. Awadallah, 202 F. Supp. 55, 57 n.28 (S.D.N.Y. 2002)
239. Illinois v. Krull, 480 U.S. 340 (1987).
240. Herring v. United States, 555 U.S. 135 (2009); Arizona v. Evans, 514 U.S. 1 (1995).
241. See, e.g., United States v. Grote, 629 F. Supp. 2d 1201, 1206 (E.D. Wash. 2009) (surveying cases extending good faith exception to situations not expressly addressed by the Court).
242. Arizona v. Gant, 556 U.S. 332, 351 (2009). 274. 598 F.3d 1259, 1262 (11th Cir. 2010).
243. citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)).
244. citing New York v. Belton, 453 U.S. 454 (1981)
245. and United States v. Gonzalez, 71 F.3d 819, 822 (11th Cir. 1996)).
246. See Transcript of Oral Argument, Davis v. United States, 131 S. Ct. 2419 (2011) (No. 09-11328), 2011 WL 972573 at33: JUSTICE SOTOMAYOR: Well, if there's a circuit split, how do we encourage police officers to be careful about the Fourth Amendment? . . . If there's a circuit split and a police officer knows that other circuits are saying this is unconstitutional, why are we taking away the deterrent effect of having thoughts occur to the officer about thinking through whether there's a better way and a legal way to do things?
247. United States v. Davis, 598 F.3d 1259, 1264 n.3
248. citing United States v. Brunette, 256 F.3d 14, 19-20 (1st Cir. 2001)).
249. Davis, 131 S. Ct. at 2408; Herring v. United States, 555 U.S. 135, 144 (2009).
250. See Groh v. Ramirez, 540 U.S. 551, 565 n.8 (2004) (stating that the "same standard of objective reasonableness" applies in Leon suppression hearings and qualified immunity hearings).
251. See, e.g., United States v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999) ("[W]here a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done.");
252. United States v. Bowens, 224 F.3d 302, 314 (4th Cir. 2002) ("Venue [for a criminal case] will lie wherever . . . essential conduct elements [of the charged offense] have occurred. Venue will also lie where the effects of the defendant's conduct are felt . . . .").
253. See U.S. ATTORNEYS' MANUAL § 9-75.400 (2011), available at http://www.justice.gov/ usao/eousa/foia-reading-room/usam/ (stating that prosecution can occur where material is mailed, deposited, or received or an intermediate through which the material passes).
254. U.S. DEP'T OF JUSTICE, CRIMINAL RESOURCE MANUAL § 967, available at http://www.justice.gov/usao/eousa/foia-reading-room/usam/title9/crm00000.htm (stating that prosecutions "may be instituted in any district in which an interstate or foreign transmission was issued or terminated").
255. See United States v. Smith, 198 F.3d 377, 383 (2d Cir. 1999) ("In a conspiracy prosecution, 'venue is proper in any district in which an overt act . . . was committed by any of the coconspirators.' "
256. quoting United States v. Naranjo, 14 F.3d 145, 147 (2d Cir. 1994).
257. See COMPUTER CRIME & INTELLECTUAL PROP. SECTION, U.S. DEP'T OF JUSTICE, PROSECUTING COMPUTER CRIMES 118, available at http://www.justice.gov/ criminal/cybercrime /docs/ccmanual.pdf (classifying cybercrime as an offense controlled by 18 U.S.C. § 3237(a) governing multidistrict offenses).
258. See Paul Bradley, Terrorism Trial Is First Major Test, RICHMOND TIMES-DISPATCH, Dec. 27, 2011, at A1.
259. Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 Collum. L. Rev. 749, 751 (2003).
260. See, e.g., United States v. Bagnell, 679 F.2d 826, 832 (11th Cir. 1982) (holding that venue was proper in the district in which materials were received, notwithstanding forum-shopping allegation).
261. See, e.g., United States v. Coleman, 162 F. Supp. 2d 582, 589 (N.D. Tex. 2001) (noting occurrence of forum-shopping and encouraging the Fifth Circuit to assess whether it qualifies as the kind of "abuse and/or collusion" that warrants further scrutiny).
262. See Allen v. McCurry, 449 U.S. 90, 116 (1980) (Blackmun, J., dissenting) (observing that "[t]he criminal defendant is an involuntary litigant").
263. see also Stephen G. Breyer, Reflections on the Role of Appellate Courts: A View from the Supreme Court, 8 J. APP. PRAC. & PROCESS 91, 92 (2006) ("A lower court split . . . is a major part of what I look for when I review the stack of [certiorari recommendation] memos of law clerks.").
264. See Stephanie A. Lindquist & David A. Yalof, Congressional Responses to Federal Circuit Decisions, 85 JUDICATURE 61, 66-67 (2001) (noting that between 1990 and 1998 Congress sought to amend existing statutes or enact new laws to resolve at least nineteen federal circuit splits). The practice would appear to align with a proposal advanced by then-Judge Ruth Ginsburg under which "Congress would take a second look at a law once a court opinion or two highlighted the measure's infirmities."
265. Ruth Bader Ginsburg, A Plea for Legislative Review, 60 S. CAL. L. REV. 995, 996 (1987).
266. See generally Amanda Frost, Certifying Questions to Congress, 101 NW. U. L. REV. 1, 11-13 (2007).
267. What Professor Monaghan has referred to as the "constitutional common law," not "subject to amendment, modification or even reversal by Congress." Henry P. Monaghan, The Supreme Court, 1974 Term - Forward: Constitutional Common Law, 89 HARV. L. REV. 1, 2-3, 31 (1975);
268. see also Tara Leigh Grove, The Structural Role for Vertical Maximalism, 95 CORNELL L. REV. 1, 9 (2009) (noting that the Court has always played the "leading role in defining the content of federal law for the judiciary");
269. Henry P. Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Collum. L. Rev. 665, 681 n.79 (2012) [hereinafter Monaghan, Avoiding Avoidance] (referring to the Supreme Court as "the priestly interpreter of our Constitution").
270. and accompanying text. For examples of more recent proposals see, for example, Paul D. Carrington & Roger C. Cramton, Judicial Independence in Excess: Reviving the Judicial Duty of the Supreme Court, 94 CORNELL L. REV. 587 (2009) (urging creation of a certiorari division of appellate judges to select cases for the Court to decide)
271. David S. Law, How to Rig the Federal Courts, 99 GEO. L.J. 779 (2011) (urging adoption of a National Court of Appeals, first proposed by the Freund Committee). One option could involve creation of a specialized court for constitutional criminal appeals, akin to that created for intellectual property law matters (the Federal Circuit). However, such a court, in addition to its political vulnerability to attacks from those desiring to maintain the status quo, would be problematic. Concern over judicial bias or capture, even involving life-tenure judges not subject to politically mortal sound bites of "pro-defendant" outcomes, would be a constant.
272. Richard L. Revesz, Specialized Courts and the Administrative Lawmaking System, 138 U. PA. L. REV. 1111, 1149-53 (1990) (discussing how special interest groups are more likely to capture specialized courts than courts of general jurisdiction). Perhaps more important, channeling constitutional criminal matters away from the Supreme Court would have negative structural effects.
273. see also United States v. Daniel, 19 U.S. (6 Wheat.) 542, 548 (1821) (Marshall, C.J.) (offering that in the absence of certification a "division of opinion" might "remain and the question would continue unsettled").
274. See United States v. Rider, 163 U.S. 132, 138 (1896) (noting that with criminal cases "a certificate of division was the only mode in which alleged errors could be reviewed").
275. See Leonard G. Ratner, Congressional Power over the Appellate Jurisdiction of the Supreme Court, 109 U. PA. L. REV. 157, 196 (1960) ("Certification of questions occurred frequently in criminal cases. A persistent conflict in lower court decisions could be expected to result, sooner or later, in a divergence of opinion among the judges of one of the circuit courts, permitting the question to be certified to the Supreme Court for resolution.").
276. See 21 CONG. REC. 10,222 (1890) (statement of Sen. William Evarts).
277. See SUP. CT. R. 19(1) ("A United States court of appeals may certify to this Court a question or proposition of law on which it seeks instruction for the proper decision of a case.").
278. See 17 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 4038, at 62-64 (3d ed. 2006) (stating that "in form and history . . . certified question jurisdiction is mandatory");
279. Felix Frankfurter & James M. Landis, The Business of the Supreme Court at October Term, 1929, 44 HARV. L. REV. 1, 36 (1930)
280. See, e.g., United States v. Seale, 130 S. Ct. 12, 12 (2009) ("The question certified by the United States Court of Appeals for the Fifth Circuit is dismissed.").
281. James W. Moore & Alan D. Vestal, Present and Potential Role of Certification in Federal Appellate Procedure, 35 VA. L. REV. 1, 25 (1949);
282. see also EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE 597 (9th ed. 2007) (noting that the Court disfavors broadened use of certification because it "would frustrate the Court's discretionary power to limit its review to cases it deems worthy" and afford lower courts power to dictate its docket).
283. Aaron Nielson, The Death of the Supreme Court's Certified Question Jurisdiction, 59 CATH. U. L. REV. 483, 492 (2010);
284. Amanda L. Tyler, Setting the Supreme Court's Agenda: Is There a Place for Certification?, 78 GEO. WASH. L. REV. 1310, 1313 (2010);
285. Kevin G. Crennan, Note, The Viability of Certification in Federal Appellate Procedure, 52 WM. & MARY L. REV. 2025 (2011).
286. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 347 (1816).
287. See David E. Klein & Robert J. Hume, Fear of Reversal as an Explanation of Lower Court Compliance, 37 LAW & SOC'Y REV. 579 (2003)
288. Harry L. Anstead et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 NOVA L. REV. 431, 529-31 (2005);
289. See Kathryn A. Watts, Constraining Certiorari Using Administrative Law Principles, 160 U. PA. L. REV. 1, 46-47 (2011).
290. See Chicago, Burlington & Quincy Ry. v. Williams, 214 U.S. 492, 495 (1909) (Holmes, J., dissenting) (stating that "[certified] questions are to be encouraged as a mode of disposing of cases in the least cumbersome and most meritorious way").
291. see also William H. Taft, The Attacks on the Courts and Legal Procedure, 5 KY. L.J. 3, 18 (1916)
292. Similar reason-giving has long been urged in the certiorari denial context where, unlike here, the enormous volume of petitions significantly undercuts the practicality of such a requirement. See Kathryn A. Watts, Constraining Certiorari Using Administrative Law Principles, 160 U. PA. L. REV. 1, 46-47 (2011).
293. See Chicago, Burlington & Quincy Ry. v. Williams, 214 U.S. 492, 495 (1909) (Holmes, J., dissenting) (stating that "[certified] questions are to be encouraged as a mode of disposing of cases in the least cumbersome and most meritorious way").
294. see also William H. Taft, The Attacks on the Courts and Legal Procedure, 5 KY. L.J. 3, 18 (1916) (publishing May 23, 1914 remarks that "questions of constitutional construction" are of such critical importance that they should comprise the Court's mandatory appellate jurisdiction).
295. See Richard J. Lazarus, Docket Capture at the High Court, 119 Yale L.J. Online 89, 89-90 (2009)
296. see also Donald A. Dripps, The Fourth Amendment and the Fallacy of Composition: Determinacy Versus Legitimacy in a Regime of Bright-Line Rules, 74 MISS. L.J. 341, 408 (2004) (urging that the Court take "a larger number of Fourth Amendment cases, in patterns that enable ongoing oversight of what is, for better or worse, an important body of judge-made law").
297. See, e.g., Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Collum. L. Rev. 237, 300-19 (2002) (surveying decline of Court's deference to congressional constitutional judgments);
298. Barry Friedman & Erin F. Delaney, Becoming Supreme: The Federal Foundation of Judicial Supremacy, 111 Collum. L. Rev. 1137, 1172-82 (2011)
299. See, e.g., United States v. Lanier, 520 U.S. 259, 269 (1997) ("[D]isparate decisions in various Circuits might leave [federal criminal law] insufficiently certain . . . [and] such a circumstance may be taken into account in deciding whether the warning is fair enough.").
300. For instance, whether a Terry stop constitutes "custody" under Miranda doctrine. Compare United States v. Leshuk, 65 F.3d 1105, 1110 (4th Cir. 1995) (holding that a suspect is not in custody based on lawful Terry stop)
301. with United States v. Newton, 369 F.3d 659, 673 (2d Cir. 2004) (deeming reasonableness of Terry stop irrelevant, and instead examining whether the circumstances of stop qualify as custody);
302. see also, e.g., United States v. Ashley, 664 F.3d 602, 604 (5th Cir. 2011) (noting existence of a split on whether the use of a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment).
303. United States v. Torres-Castro, 470 F.3d 992, 997 (10th Cir. 2006)
304. disagreeing with, inter alia, United States v. Martins, 413 F.3d 139, 150 (1st Cir.)
305. United States v. Taylor, 248 F.3d 506, 513 (6th Cir.)
306. disagreeing with United States v. Reid, 226 F.3d 1020, 1028 (9th Cir. 2000))
307. United States v. Henderson, 536 F.3d 776, 781-82 (7th Cir. 2008)
308. disagreeing with United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008))
309. United States v. Hudspeth, 518 F.3d 954, 963 (8th Cir. 2008) (en banc)
310. Melloy, J., dissenting) (noting variant approach of United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008)).
311. United States v. Gust, 405 F.3d 797, 804 (9th Cir. 2005)
312. disagreeing with, inter alia, United States v. Williams, 41 F.3d 192, 196 (4th Cir. 1994)).
313. Id.; see also Allison M. Lucifer, Comment, You Can Judge a Container by Its Cover: The Single-Purpose Container Exception and the Fourth Amendment, 76 U. CHI. L. REV. 1809 (2009) (discussing ongoing split).
314. United States v. Weaver, 282 F.3d 302, 310 (4th Cir.) (disagreeing with, inter alia, United States v. Jordan, 958 F.2d 1085, 1086 (D.C. Cir. 1992))
315. United States v. Guijon-Ortiz, 660 F.3d 757, 767-68 (4th Cir. 2011)
316. noting disagreement with United States v. Childs, 277 F.3d 947, 954 (7th Cir. 2002)).
317. Id. The Guijdon-Ortiz court emphasized that the issue differed from that resolved in Arizona v. Johnson, 555 U.S. 323 (2009), which held that unrelated questioning that does not prolong a stop is permissible.
318. noting disagreement with United States v. Childs, 277 F.3d 947, 952 (7th Cir.)
319. United States v. Scroggins, 599 F.3d 433, 449-50 (5th Cir.)
320. noting disagreement with, inter alia, United States v. Olivares-Rangel, 458 F.3d 1104, 1109 (10th Cir. 2006))
321. United States v. Guevera, 262 F.3d 751 (8th Cir. 2001) (noting disagreement with
322. inter alia, United States v. Guzman-Bruno, 27 F.3d 420, 421 (9th Cir.)
323. United States v. Moran, 503 F.3d 1135, 1142 n.5 (10th Cir. 2007)
324. noting disagreement with Gaddis v. Redford, 364 F.3d 763, 771 (6th Cir. 2007))
325. United States v. Grigg, 498 F.3d 1070, 1081 (9th Cir. 2007)
326. noting disagreement with Gaddis v. Redford, 364 F.3d 763, 771 (6th Cir. 2007));
327. see also Cecilia R. Byrne, Comment, To Stop or Not to Stop: The Application or Misapplication of Hensley to Completed Misdemeanors, 12 U. PA. J. CONST. L. 1191 (2010) (discussing split).
328. United States v. Simpson, 520 F.3d 531, 539-40 (6th Cir. 2008)
329. (noting disagreement with, inter alia, United States v. Callarman, 273 F.3d 1284, 1287 (10th Cir. 2001)
330. Hadley v. Williams, 368 F.3d 747, 749 (7th Cir. 2004) (noting disagreement with
331. inter alia, United States v. Gori, 230 F.3d 44, 53 (2d Cir. 2000)
332. United States v. Barrera, 464 F.3d 501 (5th Cir. 2006)
333. (noting disagreement with, inter alia, Valdez v. McPheters, 172 F.3d 1220, 1224 (10th Cir. 1999))
334. United States v. Valdez, 172 F.3d 1220, 1224 (10th Cir. 1999)
335. noting disagreement with United States v. Harper, 928 F.2d 894, 896 (9th Cir. 1991)).
336. United States v. Myers, 308 F.3d 251, 267 (3d Cir. 2002)
337. (noting disagreement with, inter alia, United States v. Palumbo, 735 F.2d 1095, 1097 (8th Cir.)
338. United States v. Taylor, 600 F.3d 678, 686 (6th Cir. 2010)
339. (Kethledge, J., dissenting) (noting majority's split with United States v. Snype, 441 F.3d 119, 136 (2d Cir. 2006)).
340. Id. The split, which actually entails three doctrinal positions, arguably dates back to 2006, when the Second Circuit in Snype sub silentio differed with the Seventh Circuit's position in United States v. Melgar, 227 F.3d 1038, 1039 (7th Cir. 2000).
341. See also Brian Jones, Note, Keep Closed Containers Closed: Resolving the Circuit Split in Favor of Individual Privacy, 97 IOWA L. REV. 303 (2011)
342. United States v. Sczubelek, 402 F.3d 175, 184 (3d Cir. 2005)
343. noting disagreement with, inter alia, Green v. Berge, 354 F.3d 675 (7th Cir. 2004))
344. Roe v. Marcotte, 193 F.3d 72, 78-79 (2d Cir. 1999)
345. noting disagreement with Jones v. Murray, 962 F.2d 302, 307 (4th Cir.)
346. United States v. McGregor, 650 F.3d 813, 822 (1st Cir. 2011)
347. noting disagreement with, inter alia, United States v. Brown, 188 F.3d 860, 866 (7th Cir. 1999)).
348. United States v. Wald, 216 F.3d 1222, 1227 (10th Cir. 2000);
349. see also Brian Puchalsky, Note, Weapon on Board? A Proposal to Solve the Riddle of the Nonprotective Search, 107 Collum. L. Rev. 706 (2007)
350. Ray v. Warren, 626 F.3d 170, 176-77 (3d Cir. 2010) (noting disagreement with
351. inter alia, United States v. Rohrig, 98 F.3d 1506, 1509 (6th Cir. 1996)).
352. Compare, e.g., United States v. Rohrig, 98 F.3d 1506, 1511 (6th Cir. 1996) (extending community caretaking doctrine to justify warrantless home entry)
353. with United States v. Pichany, 687 F.2d 204, 208-09 (7th Cir. 1982) (rejecting extension of the doctrine).
354. See generally Megan Pauline Marinos, Comment, Breaking and Entering or Community Caretaking? A Solution to the Overbroad Expansion of the Inventory Search, 22 GEO. MASON U. C.R. L.J. 249 (2012).
355. United States v. Coccia, 446 F.3d 233, 238 (1st Cir. 2006)
356. (noting disagreement with, inter alia, United States v. Duguay, 93 F.3d 346, 351 (7th Cir. 1996)
357. Doe v. Tex. Dep't of Prot. & Regulatory Servs., 299 F.3d 395, 407-08 (5th Cir. 2002).
358. Landstron v. Ill. Dep't of Children & Family Servs., 892 F.2d 670, 676 (9th Cir. 1990)
359. (noting disagreement with Good v. Dauphin Cnty. Soc. Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d Cir. 1989)).
360. United States v. Colbert, 605 F.3d 573, 577 (8th Cir. 2010)
361. (noting disagreement with, inter alia, United States v. Falso, 544 F.3d 110, 124 (2d Cir. 2008)
362. United States v. Baldwin, 496 F.3d 215 (2d Cir. 2007)
363. noting disagreement with United States v. Morgan, 936 F.3d 1561, 1567 (10th Cir. 1991))
364. United States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994)
365. noting disagreement with United States v. Morgan, 936 F.2d 1561, 1566 (10th Cir. 1991)
366. see also Darby G. Sullivan, Note, Continuing Seizure and the Fourth Amendment: Conceptual Discord and Evidentiary Uncertainty in United States v. Dupree, 55 VILL. L. REV. 235 (2010) (discussing split more generally).
367. United States v. Hurwitz, 459 F.3d 463, 471 (4th Cir. 2006)
368. noting disagreement with, inter alia, United States v. McGrew, 122 F.3d 847, 849 (9th Cir. 1997)).
369. The Hurwitz court was at pains to emphasize that Groh v. Ramirez, 540 U.S. 551 (2004), did not resolve the question because in Groh the supporting document at issue was neither incorporated by reference nor attached to the warrant.
370. United States v. Leary, 846 F.2d 592, 603 n.20 (10th Cir. 1988)
371. noting disagreement with United States v. Wuagneux, 683 F.2d 1343, 1351 (11th Cir. 1982)
372. United States v. Washington, 455 F.3d 824, 827 n.1 (8th Cir. 2006)
373. (noting disagreement with, inter alia, United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000)).
374. United States v. Smart, 393 F.3d 767, 770 (8th Cir.)
375. noting that Circuit's reasonable mistake of law exception was recognized in United States v. Sanders, 196 F.3d 910, 913 (8th Cir. 1999))
376. United States v. Mann, 592 F.3d 779, 785 (7th Cir. 2010)
377. noting disagreement with United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 993 (9th Cir. 2009)
378. United States v. Beauchamp, 659 F.3d 560, 578 (6th Cir. 2011) (Kethledge, J., dissenting)
379. noting disagreement with, inter alia, United States v. Dupree, 202 F.3d 1046, 1050 (8th Cir. 2000)).
380. United States v. Massenburg, 654 F.3d 480, 493-94 (4th Cir. 2011)
381. (noting disagreement with, inter alia, United States v. Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007)).
382. United States v. Shareef, 100 F.3d 1491, 1503-04 (10th Cir. 1996)
383. (noting disagreement with, inter alia, United States v. Edwards, 885 F.2d 377, 383 (7th Cir. 1989)).
384. United States v. Callahan, 494 F.3d 891, 897 (10th Cir. 2007)
385. (noting disagreement with, inter alia, United States v. Yoon, 398 F.3d 802, 807 (6th Cir. 2005))
386. rev'd on other grounds sub nom. Pearson v. Callahan, 555 U.S. 223 (2009).
387. Al-Amin v. Smith, 511 F.3d 1317, 1328 (11th Cir.)
388. noting disagreement with Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir. 1993)
389. Biergu v. Reno, 59 F.3d 1445, 1458 (3d Cir. 1995)
390. noting disagreement with Brewer), abrogated on other grounds by Lewis v. Casey, 518 U.S. 343 (1996).
391. United States v. Kennedy, 638 F.3d 159, 166-69 (3d Cir. 2011)
392. (noting disagreement with, inter alia, United States v. Thomas, 447 F.3d 1191, 1198 (9th Cir. 2006))
393. United States v. Smith, 263 F.3d 571, 582-86 (6th Cir. 2001)
394. noting disagreement with, inter alia, United States v. Obregon, 748 F.2d 1371 (10th Cir. 1984)
395. see also Darren M. Goldman, Comment, Resolving a Three-Way Circuit Split: Why Unauthorized Rental Drivers Should Be Denied Fourth Amendment Standing, 89 B.U. L. REV. 1687 (2009) (discussing split more generally).
396. United States v. Olivares-Rangel, 458 F.3d 1104, 1118 (10th Cir. 2006
397. (noting disagreement with, inter alia, United States v. Bowley, 453 F.3d 426, 431 (3d Cir. 2006)).
398. United States v. Heath, 455 F.3d 52, 61 (2d Cir. 2006)
399. noting disagreement with, inter alia, Jefferson v. Fountain, 382 F.3d 1286, 1296 (11th Cir. 2004)
400. United States v. D'Andrea, 648 F.3d 1, 12 (1st Cir. 2011)
401. noting disagreement with, inter alia, United States v. Cherry, 759 F.2d 1196, 1205 (5th Cir. 1985)).
402. United States v. Thomas, 955 F.2d 207, 210 (4th Cir. 1992)
403. noting disagreement with, inter alia, United States v. Cherry, 759 F.2d 1196, 1205 (5th Cir. 1985)
404. United States v. Gross, 624 F.3d 309, 321 (6th Cir. 2010)
405. noting disagreement with United States v. Johnson, 383 F.3d 538, 546 (7th Cir. 2004))
406. United States v. McClain, 444 F.3d 556, 565 (6th Cir. 2005)
407. (noting disagreement with, inter alia, United States v. Vasey, 834 F.2d 782, 789 (9th Cir. 1987))
408. United States v. Gamory, 635 F.3d 480, 490 (11th Cir.)
409. United States v. Dale, 991 F.2d 819, 843 n.44 (D.C. Cir.)
410. (noting disagreement with, inter alia, United States v. Hadfield, 918 F.2d 987, 992 (1st Cir. 1990)
411. United States v. Breza, 308 F.3d 430, 435 (4th Cir. 2002)
412. (noting disagreement with United States v. Benish, 5 F.3d 20, 23 (3d Cir. 1993)).
413. United States v. Melendez, 301 F.3d 27, 32 (1st Cir. 2002)
414. (noting disagreement with United States v. Stewart, 93 F.3d 189, 192 (5th Cir. 1996)).
415. United States v. Mask, 330 F.3d 330, 335 (5th Cir. 2003)
416. (noting disagreement with, inter alia, United States v. Montilla, 928 F.2d 583, 588 (2d Cir. 1991)).
417. Id. The Mask court emphasized that Ornelas v. United States, 517 U.S. 690 (1996), holding that the legality of an acknowledged seizure is subject to de novo appellate review, did not change the Fifth Circuit's longstanding position that whether a seizure occurred is a factual determination subject to clear error/abuse of discretion appellate review.
418. Id. at 335 (citing United States v. Valdiosera-Godinez, 932 F.2d 1093, 1098 n.1 (5th Cir. 1991)