Law Commons^™

The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrin, Wayne A. Logan -- Professor

Vanderbilt Law Review

In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment's prohibition of "unreasonable" seizures does not bar legally mistaken seizures because "[t]o be reasonable is not to be perfect." Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be "exceedingly rare." In a solo dissent, Justice Sotomayor fairly "wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized …

The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrine, Steven M. Goldstein -- Professor Of Law

Vanderbilt Law Review

In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment’s prohibition of “unreasonable” seizures does not bar legally mistaken seizures because “[t]o be reasonable is not to be perfect.” Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be “exceedingly rare.” In a solo dissent, Justice Sotomayor fairly “wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized …

Going Postal: Analyzing The Abuse Of Mail Covers Under The Fourth Amendment, Julie L. Rooney

Vanderbilt Law Review

Since at least the late 1800s, the United States government has regularly tracked the mail of many of its citizens. In 2014 alone, for example, the government recorded all data on the outside of the mail parcels of over 50,000 individuals via a surveillance initiative known as the mail covers program. In the current age of mass surveillance, this program-like all surveillance initiatives-has grown exponentially. Unbeknownst to most citizens, the government now photographs and records the exterior of each of the roughly 160 billion mail parcels delivered by the USPS every year. Still, despite its ability to allow governmental authorities …

The Post-Riley Search Warrant: Search Protocols And Particularity In Cell Phone Searches, Adam M. Gershowitz

Vanderbilt Law Review

Last year, in Riley v. California, the Supreme Court required police to procure a warrant before searching a cell phone. Unfortunately, the Court's assumption that requiring search warrants would be "simple" and very protective of privacy was overly optimistic. This article reviews lower court decisions in the year since Riley and finds that the search warrant requirement is far less protective than expected. Rather than restricting search warrants to the narrow evidence being sought, some magistrates have issued expansive warrants authorizing a search of the entire contents of the phone with no restrictions whatsoever. Other courts have authorized searches of …

The Emergency Aid Doctrine And 911 Hang-Ups: The Modern General Warrant, Alexander C. Ellman

Vanderbilt Law Review

The phone rings. A 911 dispatcher starts to answer, but the line goes dead. The dispatcher calls back. No one answers. Was it a misdial or a cry for help cut short? Because callers often expect help to arrive when intentionally calling 911, the police respond to the address from which the call likely originated.' Police approach the house and knock on the door. Again, no one answers. There may be an emergency inside, so the police enter the house without a warrant and without consent. If they find a heart attack victim lying on the floor, they might save …

The Fourth Amendment's National Security Exception: Its History And Limits, L. Rush Atkinson

Vanderbilt Law Review

Since 2001, federal prosecutors have indicted and convicted hundreds of defendants for terrorism, espionage, and other national security crimes.' And for every prosecution, there are dozens of investigations into foreign threats that never result in a trial. Between 2001 and 2010, for example, the federal government obtained 16,306 foreign intelligence warrants in the course of its security operations. Between 2004 and 2011, the Federal Bureau of Investigations ("FBI") issued 119,192 National Security Letters for records deemed to be pertinent to national security investigations.

Despite these numbers, security investigations and prosecutions proceed on uncertain constitutional footing. The rights of terrorism suspects …

Life On Streets And Trails: Fourth Amendment Rights For The Homeless And The Homeward Bound, Wesley C. Jackson

Vanderbilt Law Review

People who read law review articles usually have the resources to temporarily abscond from society on a whim, perhaps to the nearest trailhead, and begin a trek through the woods. Such readers, if they choose a well-maintained trail frequented by long-distance hikers, may come across a simple, three-sided cabin known as a shelter. There they might find a grimy and unwashed bunch, talking amongst themselves using jargon such as "blazes" and "trail angels." Some may recognize them as "thru-hikers" and wonder how long the scrawny, bearded, and overloaded travelers have been at it. But some may ask if these apparent …

Looking For Trouble: An Exploration Of How To Regulate Digital Searches, Eric Yeager

Vanderbilt Law Review

Imagine that the cybercrime division of a local police force receives a report of fraudulent credit card purchases, and after linking subpoenaed credit card records to a particular shipping address, officers obtain a warrant to search the computer of the resident for evidence of identity theft and fraud. During a preliminary search of the suspect's hard drive, the investigators discover a folder marked "preteen porno pix" filled entirely with picture and video files. Knowing that the evidence they are looking for is almost certainly contained within a text file, they have little reason to believe that opening this folder will …

Constitutional Cacophony: Federal Circuit Splits And The Fourth Amendment, Wayne A. Logan

Vanderbilt Law Review

Despite their many differences, Americans have long been bound by a shared sense of constitutional commonality. Federal constitutional rights, however, can and do often vary based on geographic location, and a chief source of this variation stems from an unexpected origin: the nation's federal circuit courts of appeals. While a rich literature exists on federal circuit splits in general, this Article provides the first empirical study of federal constitutional law circuit splits. Focusing on Fourth Amendment doctrine in particular, the Article highlights the existence of over three dozen current circuit splits, which result in the unequal allocation of liberty and …

Rethinking The Substantive Due Process Right To Privacy: Grounding Privacy In The Fourth Amendment, Mary H. Wimberly

Vanderbilt Law Review

Little in the jurisprudence of the Supreme Court has spurred as much controversy as the Court's recognition of a constitutional right to privacy. While implicitly acknowledging that such a right is not listed in the text of the Constitution, in Griswold v. Connecticut the Court found that the right existed in the "penumbras" of the amendments to the Constitution.' According to the Court, the right to privacy was present in "emanations" from the guarantees of the Bill of Rights. This reasoning was notoriously extended to abortion in Roe v. Wade. In order to invalidate state regulation of abortion, the Roe …

The Revamped Fisa: Striking A Better Balance Between The Government's Need To Protect Itself And The 4th Amendment, J. Christopher Champion

Vanderbilt Law Review

The investigations of the 9/11 terrorist attacks highlighted a series of lapses in intelligence-sharing within the federal government regarding terrorist operations. One area closely examined by Congress,' the judiciary, and many legal and political commentators is the appropriate scope of intelligence collection within the United States "concerning foreign threats to the nation's security" ("foreign intelligence"). Domestic intelligence collection is a particularly complex sphere of national security as gathering intelligence on American soil requires balancing the privacy rights of individuals guaranteed by the Fourth Amendment against the nation's need to protect itself.

The Foreign Intelligence Surveillance Act of 1978 ("FISA") governs …

Reconciling Consent Searches And Fourth Amendment Jurisprudence: Incorporating Privacy Into The Test For Valid Consent Searches, David J. Housholder

Vanderbilt Law Review

The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Perhaps the most significant exception to the requirements of the Fourth Amendment is the consent search, which requires no warrant, exigent circumstances, probable cause, or reasonable suspicion.

Some scholars have suggested that the Supreme Court's voluntariness standard for determining consensual searches misperceives …

The Unconstitutionality Of "Hold Until Cleared": Reexamining Material Witness Detentions In The Wake Of The September 11th Dragnet, Ricardo J. Bascuas

Vanderbilt Law Review

On March 11, 2004, terrorists affiliated with the Al Qaida networkl detonated bombs on four commuter trains in Madrid, Spain, killing 191 people and injuring 2,000 others. Hours later, the Spanish National Police (SNP) recovered a fingerprint from a bag of detonators found in a stolen van parked at a station from which three of the bombed trains departed. The SNP requested assistance from the United States Federal Bureau of Investigation to identify the owner of the print. FBI experts concluded that the print belonged to Brandon Mayfield, a U.S. citizen living in a suburb of Portland, Oregon, and the …

Press One For Warrant: Reinventing The Fourth Amendment's Search Warrant Requirement Through Electronic Procedures, Justin H. Smith

Vanderbilt Law Review

Numerous rulings by the Supreme Court have confirmed the long-held assertion that the Fourth Amendment's warrant requirement is a "centerpiece for the law of search and seizure, and that prescreening by neutral and detached magistrates is [at] the heart of citizens' protection against police overreaching." On September 21, 1994, however, these assertions proved inaccurate and painfully hollow for Betty Ingram, a fifty-three-year-old diabetic who awoke to the sound of armed police officers charging through her front door. The officers, who were searching for a suspect involved in a buy- and-bust operation, had neither obtained a search warrant nor knocked and …

Urine Trouble! Extending Constitutionality To Mandatory Suspicionless Drug Testing Of Students In Extracurricular Activities, James M. Mccray

Vanderbilt Law Review

The United States makes clear its reverence for education by demanding that its children attend school.' What is less clear, how- ever, is the nation's dedication to each student's constitutional rights. From the earliest days of the common law, public school students have lacked fundamental rights, even the right of liberty in its narrowest sense.' Although public students retain certain constitutional rights,' the public school system maintains an elevated power over its students." This power is like that of a parent,' including the duty to "inculcate the habits and manners of civility" into its students.' The public school's control over …

Race And The Fourth Amendment, Tracey Maclin

Vanderbilt Law Review

In Whren v. United States, the Supreme Court held that pretextual traffic stops do not raise Fourth Amendment concerns. In this Article, Professor Maclin contends that by requiring only probable cause of a traffic offense to justify pretextual seizures, the Court mistakenly ignores racial impact when marking the protective boundaries of the Fourth Amendment. Professor Maclin argues that race matters when measuring the dynamics and legitimacy of certain police-citizen encounters. Pretextual traffic stops unreasonably use racial targeting, therefore, the Court should make racial impact a factor in determining the constitutionality of the pretextual seizure.

Professor Maclin begins by examining objective, …

Revoking The "Fishing License:" Recent Decisions Place Unwarranted Restrictions On Administrative Agencies' Power To Subpoena Personal Financial Records, Jack W. Campbell, Iv

Vanderbilt Law Review

The backbone of an administrative agency's effectiveness is the ability to investigate rapidly the activities of entities within the agency's jurisdiction., An agency's ability to carry out its investigative functions depends upon enforcement of the agency's administrative subpoenas. Courts have not always looked favorably upon broad agency subpoena power. The implementation of the New Deal and the exigencies of World War II created a need for increased administrative oversight of national affairs. Courts began to recognize the usefulness of proactive administrative government. Concurrent supreme court decisions reflected this philosophical change by adopting highly deferential views of administrative subpoena enforcement. This …

The Continuing Evolution Of Criminal Constitutional Law In State Courts, S. Carran Daughtrey

Vanderbilt Law Review

Although early state constitutions were important and ambitious documents for their time, the development of state constitutional law stagnated after the drafting and adoption of the federal constitution., As the doctrine of federalism has resurfaced, however, states have begun to turn to their constitutions to grant more protection for their citizens. The states' criminal constitutional laws have changed significantly and continue to evolve today.

In the 1960s, the Warren Court expanded basic protections for criminal defendants by finding that the Fourteenth Amendment incorporates the Fourth, Fifth, and Sixth Amendments. The Court held that the Eighth Amendment prohibits cruel and unusual …

Developing A Meaningful Fourth Amendment Approach To Automobile Investigatory Stops, Andrew J. Pulliam

Vanderbilt Law Review

Police officers throughout the nation face the practical application of Fourth Amendment' protections in the automobile investigatory stop context daily in a wide variety of settings. Nevertheless, the Supreme Court has yet to articulate a functional analytical approach to automobile investigatory stops. This lack of guidance is particularly troublesome when one considers that the Framers specifically designed the Fourth Amendment to prevent government officials from conducting investigations in an oppressive, unreasonable manner. The problem is not simply theoretical but has manifested itself through confusion in the lower courts. The lack of response from the Court on this issue has left …

Anticipatory Search Warrants: The Supreme Court's Opportunity To Reexamine The Framework Of The Fourth Amendment, David P. Mitchell

Vanderbilt Law Review

The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures," and provides that "no War-rants shall issue, but upon probable cause."' Although its language is relatively clear, the application of the Fourth Amendment has created more controversy than the application of perhaps any other constitutional amendment.' Given the questions raised by a police-endorsed practice of anticipatory search warrants,' the search and seizure debate is far from over.

An anticipatory search warrant is a warrant based on a showing of probable cause that particular evidence of a crime will exist at a specific location in the future. Challenges …

Tapping The State Court Resource, Ann Althouse

Vanderbilt Law Review

Supreme Court opinions about federal jurisdiction usually feature painstaking analysis of the text of statutes and constitutional clauses and the intentions of those who authored them, or they are based on long-standing traditions of equity jurisprudence. But, as the Court's many divided decisions attest, these materials are scarcely clear enough to determine all outcomes. Thus, the Justices often seem to weigh various interests when they draw the lines around federal jurisdiction. The Court sometimes openly acknowledges this interest weighing, referring to "state interests" and "federal interests."

Justice Stevens has taken exception to this process. He has ob- served that much …

Reworking The Warrant Requirement: Resuscitating The Fourth Amendment, Phyllis T. Bookspan

Vanderbilt Law Review

Ninety-three years ago, in response to a newspaper account, Mark Twain wrote: "The reports of my death are greatly exaggerated." While it may be premature to sound the death knell for the fourth amendment, it is no exaggeration to suggest that unless drastic action is taken to remedy the destructive erosion of the fourth amendment, it may as well be buried.

Current search and seizure doctrine is inconsistent and incoherent.' No one, including the police who are to abide by it, judges who apply it, or the people who are protected by it, has any meaningful sense of what the …

Aids, Rape, And The Fourth Amendment: Schemes For Mandatory Aids Testing Of Sex Offenders, Paul H. Macdonald

Vanderbilt Law Review

Few subjects are as emotionally troubling as AIDS' and rape. The latter, of course, has plagued society throughout human history, but AIDS only recently has imposed itself upon our social and medical consciousness. Ever since AIDS became a familiar sight in the headlines nearly ten years ago, society has reacted to it with a mixture of anxiety, confusion, and despair. One consequence of the new societal awareness is the increased hesitancy with which individuals approach intimate contact. When intimate contact is involuntary as in the case of rape, fear of exposure to the disease is especially pronounced. Society,however, seems ill-prepared …

Drug Couriers And The Fourth Amendment: Vanishing Privacy Rights For Commercial Passengers, Alexandra Coulter

Vanderbilt Law Review

Increased drug enforcement initiatives within the United States parallel the international' escalation of the war on drugs. Curbing the flow of narcotics into the country has seemed an unconquerable task.The tremendous influx of illegal substances and the heightened domestic production of both natural and synthetic' drugs prompt governments at every level to attempt to restrict drug trafficking within the United States.' The enforcement escalation is highlighted by a vociferous executive and congressional commitment to the eradication of the drug problem, improved drug detection technology, and a dedication of increased manpower and resources to enforcement efforts.'

Detecting illegal substances during transportation …

Florida V. Riley: The Emerging Standard For Aerial Surveillance Of The Curtilage, David J. Stewart

Vanderbilt Law Review

The expression, "a man's home is his castle," embodies one of the most cherished individual liberties in American society, the right to en-joy privacy and freedom from unreasonable government intrusion in the confines of one's home.' Recognizing the importance of this right, the first Senate adopted the fourth amendment, which protects individuals from unreasonable searches and seizures.

Initially, the United States Supreme Court narrowly construed the fourth amendment as protecting only physical intrusions of persons,houses, papers, and effects.4 Later, the Court expanded coverage of the fourth amendment to include the area immediately adjacent to the home and used in connection …

A Middle Ground Approach To The Exclusionary Remedy: Reconciling The Redaction Doctrine With United States V. Leon, Rosemarie A. Lynskey

Vanderbilt Law Review

The fourth amendment to the United States Constitution commands that the right of individuals to be secure against unreasonable searches shall not be violated. The amendment further provides that a search warrant must be supported by probable cause and particularly describe the place to be searched and items to be seized.' The United States Supreme Court has held that the only effective means of enforcing this mandate is to suppress all evidence seized pursuant to a search warrant that violates the fourth amendment because it lacks either particularity or probable cause. Difficult questions arise, however, when a warrant contains some …

Federalism, Separation Of Powers, And Individual Liberties, Dennis G. Lagory

Vanderbilt Law Review

In a world that the Framers hardly could have anticipated, the Constitution remains a singularly effective instrument for the pres- ervation of individual liberty. In its allocation of power between the states and the federal government, it provides Americans with multiple champions of their rights--the federal government, which protects a liberty that is constantly evolving to adapt traditional values to new realities, and the state governments, which protect the basic liberties to which mankind has always been entitled. In its allocation of power between the branches of the federal government, the Constitution provides us with a polity possessing powers adequate …

Defining The "Reasonable Expectation Of Privacy": An Emerging Tripartite Analysis, Richard G. Wilkins

Vanderbilt Law Review

A recent, illustrated version of the United States Constitution,issued in commemoration of its bicentennial, portrays the fourth amendment with a drawing of a home sitting atop the turret of a castle. The artistic statement aptly captures the common understanding of fourth amendment protections: A man's home is his castle, at least when it comes to governmental intrusions. Two recent Supreme Court decisions, however, that uphold the aerial surveillance of a suburban backyard and a commercial manufacturing facility, appear to challenge this popular perception. The home may be a castle-but that castle is impregnable only when nothing photogenic is occurring in …

The Securing Of The Premises Exception: A Search For The Proper Balance, Adam K. Peck

Vanderbilt Law Review

This Recent Development argues that although an opinion endorsed by only two justices is not binding precedent, this portion of Segura represents an undesirable departure from the strict protections traditionally afforded a person's privacy interest in the home and leaves lower courts confused about the constitutional limitations on seizures in the home. Part II examines prior Supreme Court opinions that have defined the parameters of permissible warrantless searches and seizures. Part III explores the circuit court opinions that have developed a "securing of the premises"exception. Part IV describes Chief Justice Burger's analysis in Segura. Part V argues that the Chief …

Defending The Citadel: The Dangerous Attack Of "Reasonable Good Faith", Stanley Ingber

Vanderbilt Law Review

This Article presents arguments that are designed to influence the Court's deliberations, to create a basis for critiquing the Court's opinions once rendered, and to provide guidance for state courts, which soon may need to decide whether a good faith exception is consistent with their state constitutions and procedures. To place the subsequent discussion in context, part I of the Article briefly sketches the historical development of the exclusionary rule. Part II develops the general arguments against the exclusionary rule and the specific arguments in favor of a good faith exception. Part III exposes the conceptual flaws of the exception …