Digital Commons Network^™

Unavoidability In U.S. Privacy Law, Laura M. Moy

Georgetown Law Faculty Publications and Other Works

Why is U.S. privacy law structured the way it is, with a series of sectoral laws rather than a cross-sectoral law or laws? Why does U.S. privacy law protect information shared in certain contexts—such as information shared with an attorney, a healthcare provider, or a financial provider—rather than particular types of information? One possibility is that sectoral laws apply to contexts in which people typically share highly “sensitive” information containing intimate secrets or with the potential to harm them financially or psychologically.

But this Article argues that there is something else at play—that in fact, an under-discussed and underappreciated factor …

A Fourth Amendment Pathfinder: Stop-And-Frisk And Race, Emily Pratt

Upper Level Writing Requirement Research Papers

No abstract provided.

Pocket Police: The Plain Feel Doctrine Thirty Years Later, Kelly Recker

Michigan Law Review

The idea that a police officer can park in a low-income neighborhood, pull someone over because of their race, frisk everyone in the car, let them go if their pockets are empty, and do the whole thing over and over again until the officer finds something illegal seems deeply upsetting and violative, to say the least. And yet, pretextual traffic stops are constitutional per a unanimous Supreme Court in Whren v. United States, 517 U.S. 806 (1996), as is seizing obvious contraband during a frisk per Minnesota v. Dickerson, 508 U.S. 366 (1993). In the thirty years since …

When Taint Teams Go Awry: Laundering Unconstitutional Violations Of The Fourth Amendment, Edward S. Adams, William C. Price Jr.

Arkansas Law Review

In this Article, we examine the legal landscape in which taint teams operate, why taint teams are constitutionally problematic, and propose a solution to protect the attorney-client privilege. In Part I, we will first describe what taint teams are supposed to protect—attorney-client privilege. Next, we review how a taint team gets its documents to review, namely the doctrine surrounding (secret) search warrants. Part I ends with a non exhaustive summary of remedies available when attorney-client privilege is violated during searches. In Part II, we explain the current policies and practices surrounding taint teams, including sources of procedure for taint teams …

Justice For Dogs, Alexander J. Lindvall

Arkansas Law Review

This Essay summarizes the Fourth Amendment’s protection of dogs. The Fourth Amendment protects people from unreasonable seizures. And nearly every circuit has held that it is unreasonable (and therefore unconstitutional) for an officer to shoot (seize) a dog without a very good reason. Killing a nonthreatening family pet is one of the most egregious forms of police misconduct. The courts rightfully recognize that the unjustified harming of a dog violates the Fourth Amendment.

Forensic Microbiome Evidence: Fourth Amendment Applications And Court Acceptance, Trason Lasley

Catholic University Journal of Law and Technology

No abstract provided.

How Scotus's Recent Decision On The Cheerleader Case Impacts Public School Students' Due Process Rights For Their Off-Campus Conduct, Abby Efron

St. Mary's Law Journal

No abstract provided.

Crim Pro Rewired: Why Current Police Practices Require Candor In The Classroom, Elizabeth N. Jones

Seattle Journal for Social Justice

No abstract provided.

Privacy Rights Pertaining To The Developing Cyber World We Live In, Alexis Nixon

Graduate Scholarly Works

A large concern expressed by the general public is the right to privacy when dealing with the cyber/online sector. One major factor that influences the privacy rights of people in the cyber realm is our fourth amendment in the United States. In this paper, the focus will be on the fourth amendment, privacy rights and how these pertain to the cyber world of individuals, companies and countries. Some of the points covered in the sections below include: an explanation of the fourth amendment, influential court case pertaining to the fourth amendment, companies right to privacy/ keeping their customers data private, …

An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment And Protesting While Black, Karen Pita Loor

Faculty Scholarship

Protesting is supposed to be revered in our democracy, considered “as American as apple pie” in our nation’s mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and “less than” lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, and approximately 78 percent of those arrests were …

Putting Together The Pieces: The Mosaic Theory And Fourth Amendment Jurisprudence Since Carpenter, Ben Vanston

West Virginia Law Review

No abstract provided.

Still Standing: Does The Government Ever Waive A Right To Challenge Standing In Fourth Amendment Cases?, Stefanie M. Bowen

Lincoln Memorial University Law Review Archive

While "standing" in Fourth Amendment cases is not a preliminary inquiry, perhaps it should be. When the government fails to object to a defendant's standing to challenge a Fourth Amendment search, there may be an opportunity to renew the objection on appeal. Your outcome is jurisdiction-specific. This article explores the reasons that the Supreme Court should again visit the question of standing with respect to Fourth Amendment searches and eliminate the government's ability to challenge standing for the first time on appeal.

The Carpenter Shift: The Evolution Of Fourth Amendment Jurisprudence In The Digital Age, Lindsey R. Mattson

Senior Theses and Projects

The language of the Fourth Amendment protects citizens from warrantless searches of their tangible places and things. For centuries strict interpretation of this Amendment sufficed to protect against invasions of privacy, but developments in modern technology have rendered the Amendment’s initial scope inadequate. Our private information has moved from desks to remote servers, and police surveillance has become both ubiquitous and infallible. In response to these developments, the Supreme Court has expanded the scope of the Fourth Amendment. This thesis explores this doctrinal evolution. Through an analysis of some of the Court’s most consequential Fourth Amendment rulings, this thesis finds …

Securing Gun Rights By Statute: The Right To Keep And Bear Arms Outside The Constitution, Jacob D. Charles

Michigan Law Review

In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive nonconstitutional legal regime privileging guns and their owners. This collection of nonconstitutional gun rights confers broad powers and immunities on gun owners that go far beyond those required by the Constitution, like rights to bring guns on private property against an owner’s wishes and to carry a concealed firearm in public with no training or background check. This Article catalogues this set of expansive laws and critically assesses them. Unlike …

Exigencies, Not Exceptions: How To Return Warrant Exceptions To Their Roots, Michael Gentithes

Con Law Center Articles and Publications

When a police officer interacts with an individual, the encounter is subject to myriad exceptions to the Fourth Amendment’s warrant requirement that lack a coherent justifying theory. For instance, officers can warrantlessly search if an automobile was involved in the interaction, an arrest occurred, or a protective sweep was necessary to prevent a third-party ambush. Officers and individuals struggle to understand the breadth and complexity of these exceptions. The resulting confusion breeds widespread distrust and raises the tension in millions of interactions across the country.

There is an easier way. The Supreme Court has recently reaffirmed its support for a …

Police Ignorance And (Un)Reasonable Fourth Amendment Exclusion, Nadia Banteka

Scholarly Publications

The Fourth Amendment exclusion doctrine is as baffling as it is ubiquitous. Although courts rely on it every day to decide Fourth Amendment violations as well as defendants' motions to suppress evidence obtained through these violations, virtually every aspect of the doctrine is a subject of fundamental disagreement and confusion. When defendants file motions to suppress unlawfully obtained evidence, the government often argues that even if a violation of the Fourth Amendment has transpired, the remedy of evidence suppression is barred because the police acted in "good faith," meaning the officer reasonably, albeit mistakenly, believed the search or seizure was …

Can The Fourth Amendment Keep People "Secure In Their Persons"?, Bruce A. Green

Faculty Scholarship

No abstract provided.

Policing Suspicion: Qualified Immunity And "Clearly Established" Standards Of Proof, Seth W. Stoughton, Kyle Mclean, Justin Nix, Geoffrey Alpert

Journal of Criminal Law and Criminology

This Article explores the intersection of Fourth Amendment standards of proof and the “clearly established” prong of qualified immunity. It illustrates how the juxtaposition of the Court’s insistence on a low level of specificity for the development of suspicion and a high degree of specificity for the imposition of liability makes it exceedingly difficult to hold officers accountable for violating constitutional rights. And it offers both a path for future research into the development of suspicion and suggestions for methods that police agencies can use to improve the development and articulation of suspicion. Ultimately, it contends that policing in the …

Persistent Surveillance, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

Persistent surveillance technologies grant police vast new investigative capabilities. The technologies both monitor targeted areas and generate databases of searchable information about people, places, and patterns that can be connected and accessed for criminal prosecutions.

In the face of this growing police surveillance, courts have struggled to make sense of a fragmented Fourth Amendment doctrine. The Supreme Court has offered some clues that “digital may be different” when it comes to surveillance, but lower courts have been left struggling to apply old law to new technologies. Warrantless use of persistent surveillance technologies raises hard questions about when a “search” occurs …

Laying It On The Line: How Hernandez V. Mesa Nixed Bivens For A Transnational Homicide, Sean Davis

Lincoln Memorial University Law Review Archive

n Hernandez v. Mesa, the Supreme Court denied the petitioners the opportunity to seek a Bivens remedy for a constitutional violation by a federal official. The Court appears like it will soon remove Bivens remedies entirely. This article analyzes the case and argues that the Court correctly decided the issue. Current literature decries this decision as ignoring precedent but fails to analyze the framework for deciding Bivens cases fully. The article further adopts the stance of the concurrence to argue that Bivens remedies violate the separation of powers, have failed to achieve their stated purpose, and should be completely abolished. …

Social Norms In Fourth Amendment Law, Matthew Tokson, Ari Ezra Waldman

Michigan Law Review

Courts often look to existing social norms to resolve difficult questions in Fourth Amendment law. In theory, these norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. In reality, however, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. This Article draws on contemporary sociological literatures on norms and technology to reveal how courts’ reliance on norms leads to several identifiable errors in Fourth Amendment jurisprudence.

Courts assessing social norms generally adopt what we call the closure principle, or the idea that …

"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen Pita Loor

Faculty Scholarship

The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment …

The Genetic Panopticon: Genetic Genealogy Searches And The Fourth Amendment, Genevieve Carter

Northwestern Journal of Technology and Intellectual Property

As consumer DNA testing gains widespread popularity, so has law enforcement’s interest in leveraging genetic databases for criminal investigations. Consumer DNA testing products like 23andMe and Ancestry allow private individuals access to their genetic data on private databases. However, once coded, genetic data is free to be downloaded by users and uploaded to public databases. Police identify suspects by uploading cold case DNA to public genetic databases and find familial matches. If they identify a familial match, they narrow the field of suspects using traditional methods of investigation, which often includes extracting suspect DNA from a piece of their abandoned …

Revising Reasonableness In The Cloud, Ian Walsh

Washington Law Review

Save everything—just in case––and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such …

An Empirical Assessment Of Pretextual Stops And Racial Profiling, Stephen Rushin

Faculty Publications & Other Works

This Article empirically illustrates that legal doctrines permitting police officers to engage in pretextual traffic stops may contribute to an increase in racial profiling. In 1996, the U.S. Supreme Court held in Whren v. United States that pretextual traffic stops do not violate the Fourth Amendment. As long as police officers identify an objective violation of a traffic law, they may lawfully stop a motorist--even if their actual intention is to use the stop to investigate a hunch that by itself does not amount to probable cause or reasonable suspicion.

Scholars and civil rights activists have sharply criticized Whren, …

The Racial Architecture Of Criminal Justice, I. Bennett Capers

Faculty Scholarship

One of the pleasures of contributing to symposia—especially symposia where each contribution is brief—is the ability to engage in new explorations, test new ideas, and offer new provocations. I do that now in this essay about race, architecture, and criminal justice. I begin by discussing how race is imbricated in the architecture of courthouses, the quintessential place of supposed justice. I then take race and architecture a step further. If we think of architecture expansively—Lawrence Lessig’s definition of architecture as “the physical world as we find it” comes to mind—then it becomes clear that race is also imbricated in the …

Don't (Tower) Dump On Freedom Of Association: Protest Surveillance Under The First And Fourth Amendments, Ana Pajar Blinder

Journal of Criminal Law and Criminology

Government surveillance is ubiquitous in the United States and can range from the seemingly innocuous to intensely intrusive. Recently, the surveillance of protestors—such as those protesting against George Floyd’s murder by a police officer—has received widespread attention in the media and in activist circles, but has yet to be successfully challenged in the courts. Tower dumps, the acquisition of location data of cell phones connected to specific cell towers, are controversial law enforcement tools that can be used to identify demonstrators. This Comment argues that the insufficiency of Fourth Amendment protections for protesters being surveilled by government actors—by tactics such …

A World Of Difference? Law Enforcement, Genetic Data, And The Fourth Amendment, Christopher Slobogin, J. W. Hazel

Vanderbilt Law School Faculty Publications

Law enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA profile of an identified suspect from a database or, more commonly, by matching crime scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Neither of these efforts implicates the Fourth Amendment, because the Supreme Court has held that a Fourth Amendment "search" does not occur unless police infringe "expectations of privacy society is prepared to recognize as reasonable" and has construed that phrase narrowly, without reference to …

Trading Privacy For Promotion? Fourth Amendment Implications Of Employers Using Wearable Sensors To Assess Worker Performance, George M. Dery Iii

Northwestern Journal of Law & Social Policy

This Article considers the Fourth Amendment implications of a study on a passive monitoring system where employees shared data from wearables, phone applications, and position beacons that provided private information such as weekend phone use, sleep patterns in the bedroom, and emotional states. The study’s authors hope to use the data collected to create a new system for objectively assessing employee performance that will replace the current system which is plagued by the inherent bias of self-reporting and peer-review and which is labor intensive and inefficient. The researchers were able to successfully link the data collected with the quality of …

Suspects, Cars & Police Dogs: A Complicated Relationship, Brian R. Gallini

Washington Law Review

Officers are searching and arresting vehicle occupants without a warrant with increasing regularity. For justification, this Article demonstrates, lower courts across the country unconstitutionally expand the scope of the Fourth Amendment’s automobile exception—often in the context of a positive dog alert. But Supreme Court jurisprudence specifically limits the scope of the automobile exception to warrantless searches of cars and their containers. In other words, the probable cause underlying the automobile exception allows police to search a vehicle and its containers—nothing more.

Despite that clear guidance, this Article argues that a growing number of lower courts nationwide unconstitutionally rely on the …