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Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Searches And The Misunderstood History Of Suspicion And Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Reflections On Standing: Challenges To Searches And Seizures In A High Technology World, José F. Anderson

All Faculty Scholarship

Among the profound issues that surround constitutional criminal procedure is the obscure often overlooked issue of who has standing to challenge an illegal search, seizure or confession. Privacy interests are often overlooked because without a legal status that allows a person to complain in court, there is no way to challenge whether one is constitutionally protected from personal invasions. Standing is that procedural barrier often imposed to prevent a person in a case from objecting to improper police conduct because of his or her relationship of ownership, proximity, location, or interest in an item searched or a thing seized. Although …

Mapp V. Ohio: The First Shot Fired In The Warren Court's Criminal Procedure 'Revolution', Yale Kamisar

Book Chapters

Although Earl Warren ascended to the Supreme Court in 1953, when we speak of the Warren Court's "revolution" in American criminal procedure we really mean the movement that got underway half-way through the Chief Justice's sixteen-year reign. It was the 1961 case of Mapp v. Ohio, overruling Wolf v. Colorado and holding that the state courts had to exclude illegally seized evidence as a matter of federal constitutional law, that is generally regarded as having launched the so-called criminal procedure revolution.