Digital Commons Network^™

'I Know My Rights, You Go'n Need A Warrant For That:' The Fourth Amendment, Riley's Impact, And Warrantless Searches Of Third-Party Clouds, Laurie Buchan Serafino

Laurie B. Serafino

Scholars have frequently suggested that the Fourth Amendment ought to be applied with varying degrees of rigor depending on the seriousness of the crime investigated. Courts have largely rejected such an offense-specific approach to constitutional protections, but have demonstrated deference to the Executive Branch in matters of national security in other contexts. The particularly heightened concern raised by the threat of terrorism suggests that, at least in the context of these most serious of cases, courts ought to engage in some form of balance that recognizes the uniquely strong government interest. Such an approach, however, has to recognize that the …

Fourth Amendment "Cheeks" And Balances: The Supreme Court's Inconsistent Conclusions And Deference To Law Enforcement Officials In Maryland V. King And Florence V. Board Of Chosen Freeholders Of The County Of Burlington, Diana R. Donahoe

Catholic University Law Review

No abstract provided.

The Conversational Consent Search: How “Quick Look” And Other Similar Searches Have Eroded Our Constitutional Rights, Alexander A. Mikhalevsky

Georgia State University Law Review

One area in which law enforcement agencies have stretched constitutional limits concerns the scope of a suspect’s consent to search his or her vehicle. Police forces across the country have tested the limits of consent by asking vague, conversational questions to suspects with the goal of obtaining a suspect’s consent to search, even though that individual may not want to allow the search or may not know that he or she has the right to deny consent.

Conversational phrases like “Can I take a quick look?” or “Can I take a quick look around?” have “emerg[ed] as . . . …

You Booze, You Bruise, You Lose: Analyzing The Constitutionality Of Florida’S Involuntary Blood Draw Statute In The Wake Of Missouri V. Mcneely, Francisco D. Zornosa

Francisco D Zornosa

No abstract provided.

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

Tonja Jacobi

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between police investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited police resources to develop countermeasures, police will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game theoretic model that shows that when police investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

Checked In: Real-Time Geolocation Surveillance And The Fourth Amendment, Eric J. Struening

Eric J Struening

Leaks have revealed that the use of personal technology such as cell phones and e-mail plays a large part in how the government obtains national security information. However, it is still an open question of how far the protection of the Fourth Amendment provides an individual against government intrusion in that type of technology. This article examines how the Fourth Amendment applies to the real-time tracking of national security targets through technology. I argue that a non-physical, short-term, warrantless, real-time trace of an individual’s location for national security purposes will not infringe the prohibition against unreasonable searches and seizures. As …

Amicus Brief -- Riley V. California And United States V. Wurie, Charles E. Maclean, Adam Lamparello

Adam Lamparello

Warrantless searches of cell phone memory—after a suspect has been arrested, and after law enforcement has seized the phone—would have been unconstitutional at the time the Fourth Amendment was adopted, and are unconstitutional now. Simply stated, they are unreasonable. And reasonableness—not a categorical warrant requirement—is the “touchstone of Fourth Amendment analysis.”

The Rise And Fall Of The Exclusionary Rule, Albert E. Poirier Jr.

Albert E Poirier Jr.

The years between 1913 and 1967 saw a growing tendency on the part of the Supreme Court to allow the submission of evidence that had been gained unlawfully by the police or prosecutors. Since 1961, and particularly during the Rehnquist and Roberts Courts, the rules excluding evidence have steadily diminished. This paper seeks to review the history of the exclusionary rule.

Why So Contrived? Fourth Amendment Balancing, Per Se Rules, And Dna Databases After Maryland V. King, David H. Kaye

Journal Articles

In Maryland v. King, 133 S. Ct. 1958 (2013), the Supreme Court narrowly upheld the constitutionality of routine collection and storage of DNA samples and profiles from arrestees. In doing so, it stepped outside the usual framework that treats warrantless searches as per se unconstitutional unless they fall within specified exceptions to the warrant and probable cause requirements. Instead, the Court balanced various individual and state interests. Yet, as regards the state interests, the Court confined this direct balancing analysis to the perceived value of using DNA to inform certain pretrial decisions. Oddly, it avoided relying directly on DNA’s …

After The Cheering Stopped: Decriminalization And Legalism's Limits, Wayne A. Logan

Scholarly Publications

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon. Despite enjoying broad political support, the decriminalization movement has however failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for …

Nuance, Technology, And The Fourth Amendment: A Response To Predictive Policing And Reasonable Suspicion, Fabio Arcila Jr.

Scholarly Works

In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.

Juries And The Criminal Constitution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal …

Consensual Police-Citizen Encounters: Human Factors Of A Reasonable Person And Individual Bias., Evan M. Mcguire

The Scholar: St. Mary's Law Review on Race and Social Justice

The Fourth Amendment protects against unreasonable government intrusion. The government must establish probable cause and obtain a warrant to search a particular location. However, there are minute Fourth Amendment distinctions at various levels of police-citizen interaction which act as exceptions to the general rule. Officers may approach a citizen for any reason as long as a reasonable person in their place would feel able to escape the officer’s advances. Ultimately, abuse of this exception to Fourth Amendment protections occurs frequently, especially when it comes to minority populations. The police can conduct a search without a warrant if there is reasonable …

School Surveillance And The Fourth Amendment, Jason P. Nance

UF Law Faculty Publications

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …