Digital Commons Network^™

Narrowly Restricting "Clearly Established" Civil Liberties: The Constitutional Ramifications Of A Family Member's [Under] Protected Federal Privacy Rights In The Dissemination Of Postmortem Images In Marsh V. County Of San Diego, Mahira Siddiqui

Golden Gate University Law Review

In Marsh, the Ninth Circuit held that a prosecutor who photocopied and kept a child's autopsy photograph (and after retirement gave the copy to the press) was entitled to qualified immunity. The court reasoned that there was no "clearly established" law to inform the prosecutor that his earlier conduct in making and keeping the photocopy was unlawful. In so holding, the Ninth Circuit relied on American Manufacturers Mutual Insurance Co. v. Sullivan, which held that a plaintiff must prove that he or she was "deprived of a right secured by the Constitution or laws of the United States."' Moreover, …

"Reasonable Suspicion Plus": A Framework To Address Chief Judge Alex Kozinski's Concerns Of Mass Surveillance Without Compromising Police Effectiveness, Tyler R. Smith

Golden Gate University Law Review

Global Positioning Systems (GPS) provide law enforcement with a powerful tool to covertly investigate criminal networks. These networks, however, are often themselves technologically sophisticatedand thus able to elude police surveillance. GPS monitoring has drawn substantial criticism recently as police, in many jurisdictions, may utilize the technology without a search warrant; the issue has boiled down to whether the Fourth Amendment requires a search warrant in the first place.

This Comment argues that the Supreme Court should establish a new rule, “Reasonable Suspicion Plus,” that would require police to state in a sworn declaration particularized reasoning for use of a GPS …

United States V. Thomas: Ninth Circuit Misunder-"Standing": Why Permission To Drive Should Not Be Necessary To Create An Expectation Of Privacy In A Rental Car, Matthew M. Shafae

Golden Gate University Law Review

This Note argues that the proper inquiry for determining whether a defendant has a legitimate expectation of privacy in a rental vehicle when that defendant is the unauthorized driver of a rental car is the totality-of-the-circumstances test, not the permission test adopted by the Ninth Circuit. A test requiring permission is unsupported by Supreme Court precedent and will yield inconsistent results when applied. Part I provides a brief historical background for challenges to Fourth Amendment searches. Part II sets forth the background and analysis of the opinion in focus, United States v. Thomas. Part III evaluates the court's analysis in …

Dangerous Balance: The Ninth Circuit's Validation Of Expansive Dna Testing Of Federal Parolees, Claire S. Hulse

Golden Gate University Law Review

Part I provides a background of federal DNA testing legislation, the Fourth Amendment implications of DNA testing and two DNA testing cases leading up to the U.S. v. Kincade decision. Part II analyzes the plurality and dissenting opinions of the U.S. v. Kincade decision. Part III argues that the plurality's balancing test has a potential for inappropriate application. Finally, Part IV concludes that the Kincade balancing test should be narrowly applied as precedent after a meaningful balancing of interests, and not as a facade for ever-expanding government interests.

An Unreasonable Online Search: How A Sheriffs Webcams Strengthened Fourth Amendment Privacy Rights Of Pretrial Detainees, Ian Wood

Golden Gate University Law Review

This Note will discuss how courts approach pretrial detainees' claims of punishment, exploring both Fourteenth Amendment Due Process claims and privacy rights under the Fourth Amendment. It will go on to discuss Demery's implications for Fourth Amendment privacy rights of pretrial detainees. Part I explores the protections pretrial detainees are afforded under the Fourteenth Amendment Due Process Clause." Part l.A discusses the general differences between pretrial detainees and convicted prisoners. Part I.B considers two Supreme Court cases - Bell v. Wolfish and Block v. Rutherford - that address the standards used in evaluating punishment claims in a pretrial detention context …

Opening The Door To The Past: Recognizing The Privacy Rights Of Adult Adoptees And Birthparents In California's Sealed Adoption Records While Facilitating The Quest For Personal Origin And Belonging, Kathleen Caswell

Golden Gate University Law Review

This Comment urges that under California law, both adoptees and birthparents should have recognized constitutional rights to privacy in the information contained in court adoption files and original birth certificates. Part I examines the history of sealed adoption records in the United States and in California and how the social forces of the time contributed to the sealing of previously open records. Part II discusses the need for legislative reform by examining policy arguments supporting open records. Part III examines constitutional rights of privacy under the United States and California Constitutions respecting both birthparents and adoptees. Part IV argues that …

In Re Tyrell J.: Children And Their Reasonable Expectations Of Privacy, Shelley Davis

Golden Gate University Law Review

In re Tyrell J. examines the parameters of warrantless searches of juvenile probationers. In Tyrell, the California Supreme Court limited the use of the exclusionary rule as applied to unconstitutional searches. This note will discuss the history of the exclusionary rule and the probation search exceptions. The note will then examine the court's reasoning in Tyrell. The note will conclude by contending that the Tyrell majority disregarded the constitutional protections afforded adult citizens, and in effect reinterpreted the United States Supreme Court's "reasonableness standards."

Gay Men And Lesbians Down By Law In The 1990'S Usa: The Continuing Toll Of Bowers V. Hardwick, Mary C. Dunlap

Golden Gate University Law Review

This Article will take a look at these developments and will review the progress, stasis and backsliding of the movement for gay/lesbian civil rights, since (although not necessarily because of nor despite) the Supreme Court's decision of the Hardwick case. A review of all gay/lesbian rights cases decided since Hardwick is not contemplated here, even were such an enterprise practicable. Instead, this article attempts an exploration of some cases and situations in the layered social, psychological and political context in which these legal phenomena are occurring. The purpose is to determine what lessons we have learned in the years since …

The Curtilage Of Oliver V. United States And United States V. Dunn: How Far Is Too Far?, Thomas E. Curran Iii

Golden Gate University Law Review

Oliver and Dunn present substantial difficulties to police and courts attempting to implement the rules of the cases in the field and courtrooms. An examination of the two cases reveals that no genuinely autonomous doctrine has been revived: applying the open fields "doctrine" of Oliver and Dunn involves virtually the same inquiries as the "reasonable expectation of privacy" test of Katz. Rather than providing a bright line rule that will efficiently dispose of fourth amendment problems, it is readily foreseeable that in addition to challenges under Katz, defendants will also routinely challenge residential searches under Oliver and Dunn. Because analysis …

Preventing The Spread Of Aids By Restricting Sexual Conduct In Gay Bathhouses: A Constitutional Analysis, Stephen L. Collier

Golden Gate University Law Review

This analysis of the state's authority to limit sexual behavior in gay bathhouses will begin by examining the precedents involving the use of quarantine and nuisance statutes to control the spread of communicable diseases. A discussion of common law limitations on the use of those statutes will follow. The constitutional analysis begins with the right to privacy embodied in the United States and California Constitutions, and its relationship to gay sexual intimacy generally. The application of rational basis and strict scrutiny standards will be analyzed and arguments presented in favor of applying strict scrutiny. The state's compelling interest in stopping …

Electronic Monitoring Of Probationers: A Step Toward Big Brother?, Julie M. Houk

Golden Gate University Law Review

Recently, high technology has found an application in the area of probation. Although the probation technology does not parallel the intrusiveness of some of the previously mentioned electronic surveillance techniques, such an application of high technology may lead to greater intrusions on not only the privacy of persons convicted of crimes, but on society in general. This comment will discuss an existing probationer surveillance program in New Mexico, an analysis of electronic surveillance under the fourth amendment, post-conviction rights, and whether or not such a monitoring program is a valid condition of probation under federal and state statues.

Women Prisoners: Freedom From Sexual Harassment - A Constitutional Analysis, Laurie A. Hanson

Golden Gate University Law Review

Sexual harassment of female inmates by male guards permeates American prisons because the imbalance of power between the guard and the prisoner allows and encourages it to exist. Sexual harassment in prison is not a series of isolated incidents; rather, it is so much a part of the power structure that it is almost invisible. There are few reported cases of sexual harassment of women prisoners. Until recently sexual harassment, even outside the prison, went unnoticed. Also, if a prisoner reports sexual abuse, the prison administration will generally blame the prisoner, or deny the accusation, but only occasionally fire the …

Committee To Defend Reproductive Rights V. Myers: Procreative Choice Guaranteed For All Women, Alison Erca

Golden Gate University Law Review

This Note will trace the development of the right to privacy as applied to abortion funding and as interpreted by the United States and California Supreme Courts. Although both courts have recognized the physical and psychological harm from forced childbearing or parenting, only the California court has been willing to unequivocally acknowledge the enormous implications on a woman's education, employment and associational opportunities. For a woman, the right to privacy, inherent in the decision whether or not to bear a child, is essential for personal control of her body. Unlike the United States Supreme Court, the C.D.R.R. court has asserted …