Law Commons^™

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 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 …

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 …

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 …

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 …

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 …

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 …

Colloquy, Mr. Wiseman, Professor Uviller, Ms. Rosen, Professor Zeisel, Professor Reiss, Mr. Washington, Mr/ Carrington, Ms. Collins, Professor Tonry, Mr. Hishta

Vanderbilt Law Review

At present, our system of criminal law administration has a considerable Rube Goldberg quality to it. Once the system decides to imprison a particular defendant--if we except from the generalization the couple of states that recently changed their laws in fundamental respects--the judge naturally asks himself what will happen when this man goes to prison. The answer is that the convicted offender will sit in prison for as long as the parole board wants him to. The judge must next consider whether any constraints exist on the parole board's decisions on when to release people from prison. In a third …

Warrantless Aerial Surveillance: A Constitutional Analysis, Kurt L. Schmalz

Vanderbilt Law Review

This Recent Development endorses the qualified open view approach, but proposes a new list of considerations to be applied when evaluating an aerial surveillance case. This proposed analysis rejects the open fields doctrine. Instead, courts should apply the Katz test to aerial surveillance. The per se open view approach,however, which holds that no reasonable expectation of privacy can exist in any open area visible from the air, is too narrow to ensure protection of the public's privacy rights. A broader view of the open view approach, which will subject government air surveillance to the warrant requirement in certain circumstances, strikes …

The Civil Investigative Demand: A Constitutional Analysis And Model Proposal, Anthony J. Mcfarland

Vanderbilt Law Review

This Note first traces the initial judicial reaction to administrative demands for information and administrative investigations and delineates the constitutional requirement set forth therein. The Note next examines the development of CIDs and analyzes decisions upholding their constitutionality. This Note contends that most courts either have incorrectly applied current administrative standards to the CID or have failed to apply such standards altogether. The analysis is broken down into six parts,each dealing with a separate constitutional basis for a CID challenge. Because most suits that contest CIDs are based on fourth amendment search and seizure issues, the bulk of this Note …

Recent Cases, Daniel P. Smith, R. Michael Moore

Vanderbilt Law Review

Courts Split on the Necessity of Separate Authorization for a Covert Entry Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968

Daniel Paul Smith

Title III of the Omnibus Crime Control and Safe Streets Act of 1968,' which regulates the use of electronic surveillance, was designed to protect "the privacy of wire and oral communications,"and to delineate "on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized."' In general, communications may be intercepted only by law enforcement officers, who are engaged in the investigation of …