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Articles 1 - 30 of 33
Full-Text Articles in Law
Of Myths And Mapp: A Response To Professor Magee, Sheri Johnson
Of Myths And Mapp: A Response To Professor Magee, Sheri Johnson
Sheri Lynn Johnson
No abstract provided.
Confessions, Criminals, And Community, Sheri Lynn Johnson
Confessions, Criminals, And Community, Sheri Lynn Johnson
Sheri Lynn Johnson
No abstract provided.
The Qualitative Dimension Of Fourth Amendment "Reasonableness", Sherry F. Colb
The Qualitative Dimension Of Fourth Amendment "Reasonableness", Sherry F. Colb
Sherry Colb
Supreme Court doctrine protects two seemingly distinct kinds of interests under the heading of privacy rights: one "substantive," the other "procedural." The Fourth Amendment guarantee against "unreasonable searches and seizures" has been generally interpreted to protect procedural privacy. Searches are typically defined as governmental inspections of activities and locations in which an individual has a reasonable expectation of privacy from observation. In the typical case, this reasonable expectation of privacy may be breached only where the government has acquired a quantitatively substantial objective basis for believing that the search would uncover evidence of a crime. Substantive privacy rights have not …
What Is A Search? Two Conceptual Flaws In Fourth Amendment Doctine And Some Hints Of A Remedy, Sherry F. Colb
What Is A Search? Two Conceptual Flaws In Fourth Amendment Doctine And Some Hints Of A Remedy, Sherry F. Colb
Sherry Colb
No abstract provided.
Profiling With Apologies, Sherry F. Colb
Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb
Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb
Sherry Colb
No abstract provided.
Innocence, Privacy, And Targeting In Fourth Amendment Jurisprudence, Sherry F. Colb
Innocence, Privacy, And Targeting In Fourth Amendment Jurisprudence, Sherry F. Colb
Sherry Colb
No abstract provided.
A World Without Privacy: Why Property Does Not Define The Limits Of The Right Against Unreasonable Searches And Seizures, Sherry F. Colb
A World Without Privacy: Why Property Does Not Define The Limits Of The Right Against Unreasonable Searches And Seizures, Sherry F. Colb
Sherry Colb
No abstract provided.
Standing Room Only: Why Fourth Amendment Exclusion And Standing Can No Longer Logically Coexist, Sherry F. Colb
Standing Room Only: Why Fourth Amendment Exclusion And Standing Can No Longer Logically Coexist, Sherry F. Colb
Sherry Colb
No abstract provided.
Stopping A Moving Target, Sherry F. Colb
Random, Suspicionless Searches Of Students' Belongings: A Legal, Empirical, And Normative Analysis, Jason P. Nance
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 …
School Security Considerations After Newtown, Jason P. Nance
School Security Considerations After Newtown, Jason P. Nance
Jason P. Nance
On December 14, 2012, and in the weeks thereafter, our country mourned the deaths of twenty children and six educators who were brutally shot and killed at Sandy Hook Elementary School in Newtown, Connecticut. Since the horrific massacre, parents, educators, and lawmakers have understandably turned their attention to implementing stronger security measures in schools. This essay provides important points for policymakers and school officials to consider before embarking on a new phase of school security upgrades.
Students, Security, And Race, Jason P. Nance
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 …
School Surveillance And The Fourth Amendment, Jason P. Nance
School Surveillance And The Fourth Amendment, Jason P. Nance
Jason P. Nance
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 …
Punitive Injunctions, Nirej S. Sekhon
'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
'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 …
The Fourth Amendment Fetches Fido: The Future Of Dog Searches, Robert M. Bloom, Dana L. Walsh
The Fourth Amendment Fetches Fido: The Future Of Dog Searches, Robert M. Bloom, Dana L. Walsh
Robert M. Bloom
For over thirty-five years, the Supreme Court has grappled with the controversial issue of affirmative action and race preference. Beginning with Justice Lewis Powell’s influential opinion in Bakke v. U. Cal. Davis in 1978, leeway has been permitted for admissions policies that take account of race, as long as it is not given determinative weight so as to exclude consideration of nonminority candidates, or used to set quotas. As the Court has become increasingly conservative, however, its license for race preference has tightened considerably, and it has become receptive to “reverse discrimination” plaintiffs challenging such policies in universities and the …
Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen
Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen
James L. Kainen
The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on …
Section 1983 Civil Rights Litigation In The October 2005 Term, Martin Schwartz
Section 1983 Civil Rights Litigation In The October 2005 Term, Martin Schwartz
Martin A. Schwartz
No abstract provided.
Supreme Court Fortifies Qualified Immunity For Law Enforcement Officers In Warrant Cases, Martin Schwartz
Supreme Court Fortifies Qualified Immunity For Law Enforcement Officers In Warrant Cases, Martin Schwartz
Martin A. Schwartz
This article analyzes the significance of the United States Supreme Court decision in Messerschmidt v. Millender, 132 S.Ct. 1652 (2012), upon §1983 Fourth Amendment claims asserted against state and local law enforcement officers who apply for and enforce warrants. Millender held that police officers who sought and executed a very broad warrant authorizing them to search a residence for guns and gang related material were protected by qualified immunity. The author asserts that §1983 plaintiffs, who seek to recover damages based upon either the application or execution of an allegedly unconstitutional warrant, will now have to overcome various layers of …
Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz
Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz
Martin A. Schwartz
This article discusses the Supreme Court's ruling in Rehberg v. Paulk, 132 S. Ct. 1497 (2012), which extended the absolute witness immunity recognized in Briscoe v. LaHue, to grand jury witnesses. In an unanimous opinion, written by Justice Samuel A. Alito, Jr., the Court held that grand jury witnesses are absolutely immune from §1983 liability for their testimony, and even for conspiring to give false testimony.
Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz
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
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 …
Binary Searches And The Central Meaning Of The Fourth Amendment, Lawrence Rosenthal
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 …
When Enough Is Enough: Location Tracking, Mosaic Theory, And Machine Learning, Steven M. Bellovin, Renée M. Hutchins, Tony Jebara, Sebastian Zimmeck
When Enough Is Enough: Location Tracking, Mosaic Theory, And Machine Learning, Steven M. Bellovin, Renée M. Hutchins, Tony Jebara, Sebastian Zimmeck
Renée M. Hutchins
Since 1967, when it decided Katz v. United States, the Supreme Court has tied the right to be free of unwanted government scrutiny to the concept of reasonable xpectations of privacy.[1] An evaluation of reasonable expectations depends, among other factors, upon an assessment of the intrusiveness of government action. When making such assessment historically the Court has considered police conduct with clear temporal, geographic, or substantive limits. However, in an era where new technologies permit the storage and compilation of vast amounts of personal data, things are becoming more complicated. A school of thought known as “mosaic theory” has stepped …
The Framers' Fourth Amendment Exclusionary Rule: The Mounting Evidence, Roger Roots
The Framers' Fourth Amendment Exclusionary Rule: The Mounting Evidence, Roger Roots
Roger Roots
This article continues to show evidence that the Framers of the Bill of Rights in 1791 likely intended for the exclusionary rule to follow the Fourth Amendment.
Back To The Future: Returning To Reasonableness And Particularity Under The Fourth Amendment, Adam Lamparello, Charles Maclean
Back To The Future: Returning To Reasonableness And Particularity Under The Fourth Amendment, Adam Lamparello, Charles Maclean
Adam Lamparello
Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness. When do present-day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years …
Riley V. California: Privacy Still Matters, But How Much And In What Contexts?, Adam Lamparello, Charles Maclean
Riley V. California: Privacy Still Matters, But How Much And In What Contexts?, Adam Lamparello, Charles Maclean
Adam Lamparello
Private information is no longer stored only in homes or other areas traditionally protected from warrantless intrusion. The private lives of many citizens are contained in a digital device no larger than the palm of their hand—and carried in public places. But that does not make the data within a cell phone any less private, just as the dialing of a phone number does not voluntarily waive an individual’s right to keep their call log or location private. Remember that we are not talking about individuals suspected of committing violent crimes. The Government is recording the calls and locations of …
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
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 …
Orwellian Surveillance Of Vehicular Travels, Sam Hanna
Orwellian Surveillance Of Vehicular Travels, Sam Hanna
Sam Hanna
What would someone learn about you if all your automobile travels were ubiquitously tracked beginning today? Creating an indefinite database of a person’s previous automobile travels to formulate deductions on intimate details of people's lives is precisely what law enforcement agencies are currently able to accomplish with automatic license plate recognition (“ALPR”). With the ubiquity of ALPR cameras, continuous government surveillance of automobile travels is no longer a figment of the imagination. Consequently, the judicial and legislative branches of government must embark on balancing the private and public interests implicated by this technology. Failure to set suitable boundaries around the …