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Divided Court Issues Bright-Line Ruling On Fourth Amendment Seizures, Jeffrey Bellin

Popular Media

No abstract provided.

Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss, Katherine Mims Crocker, Brandon Hasbrouk

Briefs

No abstract provided.

Argument Analysis: Justices Spar Over Stare Decisis, Originalism, Text And What Counts As A Fourth Amendment “Seizure”, Jeffrey Bellin

Popular Media

No abstract provided.

Case Preview: When Is A Fleeing Suspect “Seized”?, Jeffrey Bellin

Popular Media

The Fourth Amendment prohibits unreasonable “searches” and “seizures.” On Wednesday, the Supreme Court is scheduled to hear oral argument in Torres v. Madrid, a case that will provide important guidance on what constitutes a Fourth Amendment seizure. Here’s a rundown of the case starting with the relevant facts and procedural history, followed by a discussion of the legal issues and finally a couple of things to watch for at the argument.

Two Models For Amending The 'Fleeing Felon' Rule, Cynthia V. Ward

Faculty Publications

The so-called “fleeing felon” rule instructs courts and law-enforcement personnel about whether, and when, police may use deadly force to stop a suspect who is attempting to escape arrest. At common law, police were allowed to use deadly force when necessary to prevent the escape of a fleeing felon, even if the escapee did not present an imminent threat of violence to the officers or others. By contrast, the right of private citizens to use deadly force against another person is generally restricted to situations involving self-defense—where an innocent person reasonably believes she is facing an imminent threat of death …

Brief Of Scholars Of The History And Original Meaning Of The Fourth Amendment As Amici Curiae In Support Of Petitioner, Margaret Hu

Briefs

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The Positive Law Model Of The Fourth Amendment, William Baude, James Y. Stern

Faculty Publications

For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused, but viable alternatives have been slow to emerge. This Article supplies one.

We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection …

The Right To Remain Armed, Jeffrey Bellin

Faculty Publications

The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia, and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta, and Cleveland.

These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could …

Future Of The Fourth Amendment: The Problem With Privacy, Poverty And Policing, Kami Chavis Simmons

Faculty Publications

For decades, the reasonable expectation of privacy has been the primary standard by which courts have determined whether a "search" has occurred within the meaning of the Fourth Amendment. The Supreme Court's recent decision in U.S. v. Jones, however, has reinvigorated the physical trespass doctrine's importance when determining whether there has been a "search" triggering constitutional protection. Recognizing the unpredictability of the reasonable expectation of privacy doctrine and that doctrine's bias against the urban poor, many scholars hope that the Jones opinion may ameliorate the class divide that has developed in Fourth Amendment jurisprudence.

This Article argues that while …

The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin

Faculty Publications

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all …

Texting While Driving Meets The Fourth Amendment: Deterring Both Texting And Warrantless Cell Phone Searches, Adam M. Gershowitz

Faculty Publications

Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. …

Crime-Severity Distinctions And The Fourth Amendment: Reassessing Reasonableness In A Changing World, Jeffrey Bellin

Faculty Publications

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine—crime severity.

The Supreme Court emphasizes that “reasonableness” is the “touchstone” of Fourth Amendment analysis. Yet, in evaluating contested searches and seizures, current Fourth Amendment doctrine ignores a key determinant of reasonableness, the crime under investigation. As a result, an invasive search of a suspected murderer …

The Iphone Meets The Fourth Amendment, Adam M. Gershowitz

Faculty Publications

Under the search incident to arrest doctrine, police may search the entire body and immediate grabbing space of an arrestee, including the contents of all containers, without any probable cause. Because almost all traffic infractions are arrestable offenses, police have enormous opportunity to conduct such searches incident to arrest. In the near future, these already high-stakes searches will become even more important because millions of drivers will not only possess containers that hold a few scattered papers, such as wallets or briefcases, but also iPhones—capable of holding tens of thousands of pages of personal information. If current Fourth Amendment jurisprudence …

Fourth Amendment Federalism? The Court's Vacillating Mistrust And Trust Of State Search And Seizure Laws, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Rhetorically Reasonable Police Practices: Viewing The Supreme Court's Multiple Discourse Paths, Kathryn R. Urbonya

Faculty Publications

This Article analyzes the United States Supreme Court's numerous and shifting rhetorical discourse paths for declaring whether particular governmental practices constituted unreasonable searches or seizures under the Fourth Amendment to the United States Constitution. It examines how the Court has manipulated classic discourse paths arising from text, history, precedent and structure. It reveals that among and within each of these categories, the Court has created conflicting approaches. The Article argues that the Court's construction of Fourth Amendment reasonableness has depended upon which discourse paths it has selected as well as how it has characterized the values embedded within the discourse …

A Fourth Amendment "Search" In The Age Of Technology: Postmodern Perspectives, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Public School Officials' Use Of Physical Force As A Fourth Amendment Seizure: Protecting Students From The Constitutional Chasm Between The Fourth And Fourteenth Amendments, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Fourth Amendment Issues In Section 1983 Litigation, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Restrictions On Law Enforcement Investigation And Prosecution Of Crime, Paul Marcus

Faculty Publications

No abstract provided.

Dangerous Misperceptions: Protecting Police Officers, Society, And The Fourth Amendment Right To Personal Security, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Virtues (And Limits) Of Shared Values: The Fourth Amendment And Miranda's Concept Of Custody, Richard A. Williamson

Faculty Publications

Miranda only protects suspects who the police subject to custodial interrogation. The concept of custody is tethered to the Fifth Amendment privilege against self-incrimination; thus, to render a suspect in custody, law enforcement officials must subject the suspect to a compelling environment that tends to undermine that privilege. In this article, Professor Richard A. Williamson examines the application of Miranda to Terry stops. He reviews the impact of the Beheler and Berkemer decisions, which held that suspects who officials stop based on reasonable suspicion, as opposed to suspects who officials arrest, are not entitled to Miranda warnings. Professor Williamson generally …

The Constitutionality Of High-Speed Pursuits Under The Fourth And Fourteenth Amendments, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Fourth Amendment Finality, John R. Pagan

Popular Media

No abstract provided.