Law Commons^™

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 …

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 …

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 …

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 …

Probable Cause On A Leash, Taylor D. Phipps

Taylor D Phipps

This article develops in four parts. Part II of this article explores the historical evolution of Supreme Court caselaw and the Court’s recent decision in Florida v. Harris.[1] This article attempts to enlighten the Court’s standard in Harris by looking to prior caselaw and discusses why courts should interpret the holding in a way that allows defendants to challenge the legitimacy and accuracy of training and certification programs. If applied incorrectly, Harris will violate the Fourth Amendment and allow searches to occur on less than probable cause. Part III reviews the fallibility of drug detection dogs and the diversity …

Social Media And Our Misconceptions Of The Realities, Richard Sanvenero Jr.

Richard Sanvenero Jr.

This article will review the current laws of the expectations of privacy under the two-pronged Katz test, and more specifically other cases that the courts have tried to interpret the test as applicable to social media such as Facebook, Instagram, Twitter, and e-mail. Since there seems to be “no light at the end of the tunnel” with any uniform decision within the courts on the Fourth Amendment protections against search and seizure when there is a reasonable expectation of privacy with social media. This reasonable expectation standard is developed by the users themselves who will allow their rights to be …

Traffic Stops And The New Exclusionary Rule Regime: Why Harris, Hudson, And Herring Mandate That The Discovery Of An Outstanding Arrest Warrant Attenuate The Taint Of An Illegal Traffic Stop Except In The Case Of A Flagrant Fourth Amendment Violation, Risher G. Caves

Risher G Caves

Suppose that during the course of an illegal traffic stop officers discover an outstanding arrest warrant for the driver, make the arrest, and then discover evidence such as narcotics in the driver’s pocket. Under the exclusionary rule, should the narcotics be considered the “fruit” of the illegal stop or does the discovery of the arrest warrant attenuate the taint? This article explores the longstanding circuit split on this question and contends that the discovery of an outstanding arrest warrant should attenuate the taint unless the initial illegal traffic stop was a flagrant violation of the Fourth Amendment. Almost all courts …

Contextual Expectations Of Privacy, Andrew Selbst

Andrew Selbst

Fourth Amendment search jurisprudence is nominally based on a “reasonable expectation of privacy,” but actual doctrine is detached from society’s conception of privacy. Courts rely on various binary distinctions: Is a piece of information secret or not? Was the observed conduct inside or outside? While often convenient, none of these binary distinctions can adequately capture the complicated range of ideas encompassed by “privacy.” Privacy theorists have begun to understand that a consideration of social context is essential to a full understanding of privacy. Helen Nissenbaum’s theory of contextual integrity, which characterizes a right to privacy as the preservation of expected …

Contextual Expectations Of Privacy, Andrew Selbst

Andrew Selbst

Fourth Amendment search jurisprudence is nominally based on a “reasonable expectation of privacy,” but actual doctrine is detached from society’s conception of privacy. Courts rely on various binary distinctions: Is a piece of information secret or not? Was the observed conduct inside or outside? While often convenient, none of these binary distinctions can adequately capture the complicated range of ideas encompassed by “privacy.” Over the last decade, privacy theorists have begun to understand that a consideration of context is essential to a full understanding of privacy. Helen Nissenbaum’s theory of contextual integrity, which characterizes a right to privacy as the …

"Lonesome Roads:" Driving Without The Fourth Amendment, Lewis R. Katz

Lewis R. Katz

American states and municipalities have so many minor traffic regulations that every time a driver gets behind the wheel of a car he or she is likely to commit multiple violations. The violation of any traffic regulation empowers police officers to stop the vehicle, ticket and, in some states, arrest the motorist. Police are physically unable to stop and ticket, let alone arrest, every motorist committing a traffic violation. Instead, police are vested with unlimited discretion when choosing which motorists to stop, warn, ticket, or arrest. So long as there is probable cause for a traffic violation, courts will not …

"Lonesome Road:" Driving Without The Fourth Amendment, Lewis R. Katz

Lewis R. Katz

American states and municipalities have so many minor traffic regulations that every time a driver gets behind the wheel of a car he or she is likely to commit multiple violations. The violation of any traffic regulation empowers police officers to stop the vehicle, ticket and, in some states, arrest the motorist. Police are physically unable to stop and ticket, let alone arrest, every motorist committing a traffic violation. Instead, police are vested with unlimited discretion when choosing which motorists to stop, warn, ticket, or arrest. So long as there is probable cause for a traffic violation, courts will not …

The Politics Of Privacy In The Criminal Justice System: Information Disclosure, The Fourth Amendment, And Statutory Law Enforcement Exemptions, Erin E. Murphy

Erin E Murphy

When criminal justice scholars think of privacy, they think of the Fourth Amendment. But lately its domain has become far less absolute. The United States federal code currently contains over twenty separate statutes that restrict both acquisition and release of covered information. Largely enacted in the latter part of the twentieth century, these statutes address matters vital to modern existence. They control police access to drivers’ licenses, education records, health histories, telephone calls, e-mail messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards – ranging from …

Gps Tracking Devices And Facial Recognition Technology: A Comparative Analysis Of Jones’S Effect On Law Enforcement’S Future Use Of Surveillance-Enhancing Technology, James Mariani

James Mariani

New technology benefits everyone—cops and robbers are no exception. However, technology and privacy, unfortunately so, tend to have an inverse relationship, and when it comes to law enforcement, the Fourth Amendment is the curve. The Supreme Court, throughout its jurisprudence dealing with the warrantless use of technology-enhanced surveillance, has pushed the balance of this line in both directions. In the upcoming decision of United States v. Jones, the Court will redraw the line once more by deciding whether the government’s use of a GPS tracking device is a search under the Fourth Amendment. This note will predict the outcome of …

Freezing Assets In The War On Terror: Ofac And The Fourth Amendment, Rebecca Kagan Sternhell

Rebecca Kagan Sternhell

In 2001, President Bush issued Executive Order 13224 declaring a state of national emergency and triggering an array of emergency powers. Chief among these powers was the International Emergency Economic Powers Act (“IEEPA”), which permits the Treasury Department’s Office of Foreign Asset Control (“OFAC”) to freeze the assets and accounts of suspected terrorists and their affiliates. Recently OFAC has gone after U.S. charities. Three US charities filed suit alleging Fourth Amendment violations. Each organization received a different judicial determination on the Fourth Amendment question. The paper discusses these three cases and demonstrates no consensus on the Fourth Amendment issue. There …

Fourth, Fifth And Sixth Amendment Considerations For Admissibility Of Defendants’ Admissions And Confessions, Nancy Haydt

Nancy Haydt

Over the past three terms, the U.S. Supreme Court has rendered opinions that have great impact on the admissibility of a criminal defendant's statement which constitutes an admission under FRE Rule 801(d)(2). This paper addresses recent High Court rulings implicating Fourth Amendment Search and Seizure rights, Fifth Amendment Rights to silence and to counsel, and Sixth Amendment Right to non-interference with trial counsel in the context of admissions and confessions, and discusses the profound effect these rulings have in Criminal Procedure.

Exigency And Emergency, Understanding The Warrantless Non-Consensual Home Entry, Jacob Chen

Jacob Chen

The Fourth Amendment of the United States protects the right of the people to be secure in their houses against unreasonable searches and seizures. To ensure that the Fourth Amendment is respected by law enforcement, evidence that is seized during an unlawful search could be suppressed and denied admittance into evidence. In many circumstances, law enforcement officials are required to get a warrant before entering into a person’s house when conducting a search or carrying out an arrest. But there are certain circumstances when it is unnecessary for the police to get a warrant. A general umbrella term for the …

Countering Criminalization: Toward A Youth Development Approach To School Searches, Sarah Jane Forman

Sarah Jane Forman

Every since New Jersey v. T.L.O., the dominant narrative, particularly in inner-city schools, has been that school children are dangerous and violent, drug dealing, gang affiliated, and out of control. Under the rubric of school safety, students are stripped of the full protection afforded by the 4th Amendment while being subjected them to a model of school discipline that utilizes law enforcement officers to enforce school rules. Such policies alienate targeted youth from mainstream society, increasing the lure of counter-culture ideas, decreasing the legitimacy of the rule of law, and feeding the school-to prison pipeline. In section one, I examine …

Public Education And Student Privacy: Application Of The Fourth Amendment To Dormitories At Public Colleges And Universities, Bryan R. Lemons Mr.

Bryan R Lemons Mr.

This article discusses the application of the Fourth Amendment to searches of dormitories at public colleges and universities. It begins by providing a general introduction to the Fourth Amendment, as well as the concept of a “reasonable expectation of privacy,” before looking at whether students living in on-campus residential facilities have such reasonable expectations of privacy both in their individual rooms and in the building’s common areas. The article discusses searches by Resident Assistants, and explores the conflict between courts on whether to categorize such searches as private in nature. Additionally, four (4) exceptions to the search warrant requirement are …