Law Commons^™

Self Incrimination And Cryptographic Keys, Gregory S. Sergienko

Greg Sergienko

Modern cryptography can make it virtually impossible to decipher documents without the cryptographic key thus making the availability of the contents of those documents depend on the availability of the key. This article examines the Fourth and Fifth Amendments' protection against the compulsory production of the key and the scope of the Fifth Amendment immunity against compelled production. After analyzing these questions using prevailing Fourth and Fifth Amendment jurisprudence, I shall describe the advantages of a privacy-based approach in practical and constitutional terms. [excerpt]

Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Fourth Amendment Stops, Arrests And Searches In The Context Of Qualified Immunity, Erwin Chemerinsky, Karen M. Blum

Erwin Chemerinsky

No abstract provided.

Fourth Amendment Remedies As Rights: The Warrant Requirement, David Gray

David C. Gray

The constitutional status of the warrant requirement is hotly debated. Critics argue that neither the text nor history of the Fourth Amendment support a warrant requirement. Also questioned is the warrant requirement’s ability to protect Fourth Amendment interests. Perhaps in response to these concerns, the Court has steadily degraded the warrant requirement through a series of widening exceptions. The result is an unsatisfying jurisprudence that fails on both conceptual and practical grounds.

These debates have gained new salience with the emergence of modern surveillance technologies such as stingrays, GPS tracking, drones, and Big Data. Although a majority of the Court …

The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports

Kit Kinports

This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question whether …

Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman

Howard M Wasserman

In Scott v. Harris (2007), the Supreme Court granted summary judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting summary judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to any interpretation …

Dangerous Dicta, David Gray

David C. Gray

In United States v. Heller, the Court held that individuals have a Second Amendment right to keep and bear arms apart from their associations with state militias. Although that holding was and remains controversial, less attention has been paid to what the Heller Court had to say about the Fourth Amendment. Writing for the Court in Heller, Justice Scalia asserts that the phrase “right of the people” in the Fourth Amendment “unambiguously refers to individual rights, not ‘collective’ rights or rights that may only be exercised through participation in some corporate body.” By any definition, this is dicta. It is …

Congressional Due Process, Andrew M. Wright

Andrew M Wright

This article identifies significant deficiencies in Congress’s investigative practices. Consequences of congressional scrutiny can be profound, yet the second Congress calls, almost none of the safeguards of the American legal system are present. I argue such practices demonstrate institutional indifference to constitutional due process norms. The article highlights differences between congressional and judicial proceedings with respect to the safeguards of witnesses and targets. The purpose of congressional inquiry fundamentally differs from adjudication, and therefore does not call for the full complement of procedural rights afforded in judicial proceedings. Congress seeks facts and expertise to inform legislative judgments that will have …

The Search And Seizure Of Private Papers: Fourth And Fifth Amendment Considerations, Steven Shiffrin

Steven H. Shiffrin

There is a recognizable factual distinction between the search and seizure of private papers and the search and seizure of non-documentary items. It is difficult, however, to decide when such a distinction should assume constitutional dimensions. Specifically, are there circumstances under which private papers should be immune from search and seizure? In a 1967 landmark case, Warden v. Hayden, the United States Supreme Court raised doubts concerning the continued validity of decades of settled law on this important issue. Warden's reopening of this problem aroused the curiosity of commentators, spurred new policy arguments in the American Law Institute, divided the …

Calling Out Maryland V. King: Dna, Cell Phones, And The Fourth Amendment, Jennie Vee Silk

Jennie Vee Silk

In Maryland v. King, the Supreme Court narrowly upheld a Maryland statute that permits police to obtain a DNA sample from an arrestee without a search warrant. A year later, the Court drastically changed course and provided significantly more protection to an arrestee’s privacy. In a unanimous decision, the Court in Riley v. California held that police must obtain a search warrant before they can search the cell phone of an arrestee.

This article is the first to compare the Court’s conflicting decisions in Riley and King. Riley and King present the same issue: governmental invasion of privacy for …

Random, Suspicionless Searches Of Students' Belongings: A Legal, Empirical, And Normative Analysis, Jason P. Nance

Jason P. Nance

This Article provides a legal, empirical, and normative analysis of an intrusive search practice used by schools officials to prevent school crime: random, suspicionless searches of students’ belongings. First, it argues that these searches are not permitted under the Fourth Amendment unless schools have particularized evidence of a weapons or substance problem in their schools. Second, it provides normative considerations against implementing strict security measures in schools, especially when they are applied disproportionately on minority students. Third, drawing on recent restricted data from the U.S. Department of Education’s School Survey on Crime and Safety, it provides empirical findings that raise …

Students, Security, And Race, Jason P. Nance

Jason P. Nance

In the wake of the terrible shootings in Newtown, Connecticut, our nation has turned its attention to school security. For example, several states have passed or are considering passing legislation that will provide new funding to schools for security equipment and law enforcement officers. Strict security measures in schools are certainly not new. In response to prior acts of school violence, many public schools for years have relied on metal detectors, random sweeps, locked gates, surveillance cameras, and law enforcement officers to promote school safety. Before policymakers and school officials invest more money in strict security measures, this Article provides …

Section 1983 Civil Rights Litigation In The October 2005 Term, Martin Schwartz

Martin A. Schwartz

No abstract provided.

Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz

Martin A. Schwartz

No abstract provided.

Neurotechnologies At The Intersection Of Criminal Procedure And Constitutional Law, Amanda C. Pustilnik

Amanda C Pustilnik

The rapid development of neurotechnologies poses novel constitutional issues for criminal law and criminal procedure. These technologies can identify directly from brain waves whether a person is familiar with a stimulus like a face or a weapon, can model blood flow in the brain to indicate whether a person is lying, and can even interfere with brain processes themselves via high-powered magnets to cause a person to be less likely to lie to an investigator. These technologies implicate the constitutional privilege against compelled, self-incriminating speech under the Fifth Amendment and the right to be free of unreasonable search and seizure …

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.

Binary Searches And The Central Meaning Of The Fourth Amendment, Lawrence Rosenthal

Lawrence Rosenthal

Fourth Amendment jurisprudence is frequently accused of doctrinal incoherence. A primary reason is the persistence of two competing conceptions of “unreasonable” search and seizure. The first is libertarian in character; it understands the Fourth Amendment’s command of reasonableness as establishing a constitutional boundary on investigative powers. On this view, the prohibition on unreasonable search and seizure keeps society free by limiting the government’s investigative reach. The second conception understands the Fourth Amendment's prohibition as freedom against unjustified government intrusion. This conception of reasonableness is essentially pragmatic in character, balancing liberty and law-enforcement interests.

This article interrogates these competing conceptions by …

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 …

Whose Metadata Is It Anyways? Why Riley V. California Illustrates That The National Security Administration's Bulk Data Collection Is A Fourth Amendment Problem, Jesse S. Weinstein

Jesse S Weinstein

No abstract provided.

Abidor V. Napolitano: Suspicionless Cell Phone And Laptop Searches At The Border Compromise The Fourth And First Amendments, Adam Lamparello, Charles Maclean

Adam Lamparello

The article explores the December 31, 2013 Abidor decision where the federal district court upheld the ongoing application of the border search exception as applied to deep, forensic searches of laptops and other digital devices. That exception allows suspicionless searches of any persons, effects, and “closed containers” crossing a border into the United States, and laptops and external hard drives are generally considered “closed containers” under the border search exception. We argue that the border search exception, grounded as it is in pre-digital age fact patterns, should no longer serve as precedent for border searches of the immense memories of …

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.”

Katz On A Hot Tin Roof: The Reasonable Expectation Of Privacy Is Rudderless In The Digital Age Unless Congress Continually Resets The Privacy Bar, Charles E. Maclean

Charles E. MacLean

The Katz reasonable expectation of privacy doctrine has lasting relevance in the digital age, but that relevance must be carefully and clearly guided in great detail by Congressional and state legislative enactments continually resetting the privacy bar as technology advances. In that way, the Katz “reasonableness” requirements are actually set by the legislative branch, thereby precluding courts from applying inapposite analogies to phone booths, cigarette packs, and business records. Once legislation provides the new contours of digital privacy, those legislative contours become the new “reasonable.”

This article calls upon Congress, and to a lesser extent, state legislatures, to control that …

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.

The "Not A Search" Game, John F. Stinneford

John F. Stinneford

No abstract provided.

The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley

Gerard V. Bradley

No abstract provided.

The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia

Patricia L. Bellia

This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …

Cell Phone Searches In A Digital World: Blurred Lines, New Realities And Fourth Amendment Pluralism, Steven I. Friedland

Steven I. Friedland

State and federal courts are split over whether cell phone searches incident to a lawful arrest are permissible under the Fourth Amendment. The Supreme Court has the opportunity to create uniformity by accepting a certiorari petition in a cell phone search incident to arrest case, either United States v. Wurie or Riley v. California. The Court should do so to create an analysis that incorporates sensory enhancing technology, not avoids it, as it has done to date.

The split in case law evidences a central contradiction. Fourth Amendment rules need to be predictable and based on clear guidelines for effective …

Down To The Wire: Assessing The Constitutionality Of The National Security Agency's Warrantless Wiretapping Program: Exit The Rule Of Law, Fletcher Baldwin, Robert Shaw

Fletcher N. Baldwin

The article discusses the constitutionality of warrantless wiretapping surveillance by the National Security Agency (NSA) on U.S. citizens. The wiretapping program existed weeks after the September 11, 2001 attacks, on the justification that Congress authorized the president to wiretap U.S. citizens without a warrant, and that the president had inherent authority as commander-in-chief. But it is argued that Congress did not expressly authorize the president to conduct warrantless wiretapping and that he does not have such inherent authority.

We intend this Article to be a commentary on the constitutionality of the NSA wiretapping program solely as it relates to the …