Law Commons^™

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

Faculty Articles and Papers

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement's collection of informa­tion can be cause for "anxiety," meriting constitutional protection, even if subsequent uses of the information are tightly restricted. This change is significant. While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing.

Beyond offering a careful reading of Birchfield, this Article has two goals. First, …