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Criminal Procedure

Fourth Amendment

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Full-Text Articles in Law

Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf Jan 2018

Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf

Scholarly Works

This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single technology, such ...


The 2016 Amendments To Criminal Rule 41: National Search Warrants To Seize Cyberspace, “Particularly” Speaking, Devin M. Adams Jan 2017

The 2016 Amendments To Criminal Rule 41: National Search Warrants To Seize Cyberspace, “Particularly” Speaking, Devin M. Adams

Law Student Publications

George Orwell's dystopia, with the ever-watchful Big Brother, has seemingly become a reality with the recently passed amendments to Rule 41 of the Federal Rules of Criminal Procedure. Rule 41, governing searches and seizures, now permits magistrate judges to authorize agents- under a single warrant- to "remotely access," and simultaneously search, copy and seize information from an infinite number of unknown electronic devices in multiple districts anywhere in the country. The unlimited jurisdiction provision is triggered when a device's location is obscured through "technological means," or if agents are investigating computer crimes in five or more districts- regardless ...


Digital Technology And Analog Law: Cellular Location Data, The Third-Party Doctrine, And The Law‘S Need To Evolve, Justin Hill Jan 2017

Digital Technology And Analog Law: Cellular Location Data, The Third-Party Doctrine, And The Law‘S Need To Evolve, Justin Hill

Law Student Publications

This comment explores how broader shifts in Fourth Amendment doctrine may affect the government's collection of Cell Site Location Information (CSLI) moving forward. It consists of three parts. Part I examines the technological underpinnings of cellular networks. The issue is frequently litigated, but few in the legal community have a real grasp on the technology. A nuanced understanding of the technology is crucial when examining the accuracy of CSLI or how the third-party doctrine ought to apply. This comment consolidates and simplifies the technical workings of cellular networks to enable better and more informed answers. Last, drawing on this ...


The Unreasonable Rise Of Reasonable Suspicion: Terrorist Watchlists And Terry V. Ohio, Jeffrey Kahn Jan 2017

The Unreasonable Rise Of Reasonable Suspicion: Terrorist Watchlists And Terry V. Ohio, Jeffrey Kahn

Faculty Scholarship

Terry v. Ohio's “reasonable suspicion” test was created in the context of domestic law enforcement, but it did not remain there. This Essay examines the effect of transplanting this test into a new context: the world of terrorist watchlists. In this new context, reasonable suspicion is the standard used to authorize the infringement on liberty that often results from being watchlisted. But nothing else from the case that created that standard remains the same. The government official changes from a local police officer to an anonymous member of the intelligence community. The purpose changes from crime prevention to counterterrorism ...


An Expressive Theory Of Privacy Intrusions, Craig Konnoth Jan 2017

An Expressive Theory Of Privacy Intrusions, Craig Konnoth

Articles

The harms of privacy intrusions are numerous. They include discrimination, reputational harm, and chilling effects on speech, thought, and behavior. However, scholarship has yet to fully recognize a kind of privacy harm that this article terms "expressive."

Depending on where the search is taking place and who the actors involved are--a teacher in a school, the police on the street, a food inspector in a restaurant--victims and observers might infer different messages from the search. The search marks the importance of certain societal values such as law enforcement or food safety. It can also send messages about certain groups by ...


Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas Aug 2016

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

Faculty Scholarship at Penn Law

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to ...


Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Jan 2016

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook

Scholarly Works

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued ...


Police Reform And The Judicial Mandate, Julian A. Cook Jan 2016

Police Reform And The Judicial Mandate, Julian A. Cook

Scholarly Works

In response to a crisis that threatens his tenure as Mayor of Chicago, Rahm Emanuel announced in December 2015 reform measures designed to curb aggressive police tactics by the Chicago Police Department (CPD). The reform measures are limited, but aim to reduce deadly police-citizen encounters by arming the police with more tasers, and by requiring that officers undergo deescalation training. Though allegations of excessive force have plagued the department for years, the death of Laquan McDonald, an African-American teenager who was fatally shot by Jason Van Dyke, a white officer with the CPD, was the impetus for the Mayor’s ...


Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright Jan 2016

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Scholarship

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears in the wash.

In the years since Herring was decided, courts have allowed evidence laundering ...


Government Retention And Use Of Unlawfully Secured Dna Evidence, Wayne A. Logan Jan 2015

Government Retention And Use Of Unlawfully Secured Dna Evidence, Wayne A. Logan

Scholarly Publications

No abstract provided.


The Fourth Amendment And Surveillance In A Digital World, Arthur Leavens Jan 2015

The Fourth Amendment And Surveillance In A Digital World, Arthur Leavens

Faculty Scholarship

Technology has transformed government surveillance and opened traditionally private information to official scrutiny. The current privacy-based approach to the Fourth Amendment is unable to cope with the changes. This Article offers a solution to the problems that technological surveillance techniques present. Starting with the introduction of the approach in Katz, the Article reviews the development of privacy-based approach. It then looks at three 21st century Supreme Court cases that grappled with applying the Katz test to advanced technological surveillance techniques: Kyllo, Quon, and Jones. These cases demonstrate the problems that the privacy-based approach creates and the need for an alternative ...


Abidor V. Napolitano: Suspicionless Cell Phone And Laptop “Strip” Searches At The Border Compromise The Fourth And First Amendments, Adam Lamparello, Charles E. Maclean May 2014

Abidor V. Napolitano: Suspicionless Cell Phone And Laptop “Strip” Searches At The Border Compromise The Fourth And First Amendments, Adam Lamparello, Charles E. Maclean

NULR Online

No abstract provided.


The Law And Economics Of Stop-And-Frisk, David S. Abrams Jan 2014

The Law And Economics Of Stop-And-Frisk, David S. Abrams

Faculty Scholarship at Penn Law

The relevant economic and legal research relating to police use of stop-and-frisk has largely been distinct. There is much to be gained by taking an interdisciplinary approach. This Essay emphasizes some of the challenges faced by those seeking to evaluate the efficacy and legality of stop-and-frisk, and suggests some ways forward and areas of exploration for future research.


Nuance, Technology, And The Fourth Amendment: A Response To Predictive Policing And Reasonable Suspicion, Fabio Arcila Jr. Jan 2014

Nuance, Technology, And The Fourth Amendment: A Response To Predictive Policing And Reasonable Suspicion, Fabio Arcila Jr.

Scholarly Works

In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.


Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports Jan 2014

Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports

Journal Articles

This piece argues that the Supreme Court's April 2014 decision in Navarette v. Calfornia, like last Term's opinion in Florida v. Harris, deviates from longstanding Supreme Court precedent treating probable cause and reasonable suspicion as totality-of-the-circumstances tests. Instead, these two recent rulings essentially rely on rigid rules to define probable cause and reasonable suspicion. The article criticizes the Court for selectively endorsing bright-line tests that favor the prosecution, and argues that both decisions generate rules that oversimplify and therefore tend to be overinclusive.


Juries And The Criminal Constitution, Meghan J. Ryan Jan 2014

Juries And The Criminal Constitution, Meghan J. Ryan

Faculty Scholarship

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges ...


The Dog Days Of Fourth Amendment Jurisprudence, Kit Kinports Aug 2013

The Dog Days Of Fourth Amendment Jurisprudence, Kit Kinports

NULR Online

No abstract provided.


Neurotechnologies At The Intersection Of Criminal Procedure And Constitutional Law, Amanda C. Pustilnik Jan 2013

Neurotechnologies At The Intersection Of Criminal Procedure And Constitutional Law, Amanda C. Pustilnik

Faculty Scholarship

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 ...


Effective Remedies For Ineffective Assistance, Jenia I. Turner Jan 2013

Effective Remedies For Ineffective Assistance, Jenia I. Turner

Faculty Scholarship

In two recent cases, Missouri v. Frye and Lafler v. Cooper, the Supreme Court affirmed that criminal defendants have a right to competent counsel during plea bargaining. The Court also established that the injury caused by ineffective assistance is not mooted by the subsequent conviction of the defendant at trial. The cases were broadly celebrated for clarifying that the Sixth Amendment applies fully to plea bargaining — the standard process by which our justice system resolves criminal cases today.

The most significant and surprising part of Lafler, however, was the Court’s holding concerning remedies. The Court held that trial courts ...


The Dog Days Fourth Amendment Jurisprudence, Kit Kinports Jan 2013

The Dog Days Fourth Amendment Jurisprudence, Kit Kinports

Journal Articles

This Article discusses Florida v. Harris and Florida v. Jardines, the two Fourth Amendment drug dog opinions issued by the Supreme Court earlier this year. Together the cases hold that a narcotics detection dog effects a “search” when it intrudes on a constitutionally protected area in order to collect evidence, but that the dog’s positive alert is generally sufficient to support a finding of probable cause. The piece argues that both cases essentially generate a bright-line rule, thereby deviating from precedent that favored a more amorphous standard considering all the surrounding circumstances. Like many purportedly clear rules, the ones ...


Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports Jan 2013

Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports

Journal Articles

This Article discusses the Supreme Court’s use of the concepts of culpability and deterrence in its Fourth Amendment jurisprudence, in particular, in the opinions applying the good-faith exception to the exclusionary rule. The contemporary Court sees deterrence as the exclusionary rule’s sole function, and the Article begins by taking the Court at its word, evaluating its exclusionary rule case law on its own terms. Drawing on three different theories of deterrence – economic rational choice theory, organizational theory, and the expressive account of punishment – the Article analyzes the mechanics by which the exclusionary rule deters unconstitutional searches and questions ...


Katz On A Hot Tin Roof: Saving The Fourth Amendment From Commercial Conditioning By Reviving Voluntariness In Disclosures To Third Parties, Mary Graw Leary Jan 2013

Katz On A Hot Tin Roof: Saving The Fourth Amendment From Commercial Conditioning By Reviving Voluntariness In Disclosures To Third Parties, Mary Graw Leary

Scholarly Articles and Other Contributions

In a world in which Americans are tracked on the Internet, tracked through their cell phones, tracked through the apps they purchase, and monitored by hundreds of traffic cameras, privacy is quickly becoming nothing more than a quaint vestige of the past.

In a previous article discussing the intersection of technology and the Fourth Amendment, I proposed reframing the issue away from conventional commentary. The Missed Opportunity of United States v. Jones: Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World, 15 PENN. J. CON. L. 331, 333 (2012). That article posits that society has reached the point ...


Debate: The Constitutionality Of Stop-And-Frisk In New York City, David Rudovsky, Lawrence Rosenthal Jan 2013

Debate: The Constitutionality Of Stop-And-Frisk In New York City, David Rudovsky, Lawrence Rosenthal

Faculty Scholarship at Penn Law

Stop-and-frisk, a crime prevention tactic that allows a police officer to stop a person based on “reasonable suspicion” of criminal activity and frisk based on reasonable suspicion that the person is armed and dangerous, has been a contentious police practice since first approved by the Supreme Court in 1968. In Floyd v. City of New York, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk practices violate both the Fourth and Fourteenth Amendments. Professors David Rudovsky and Lawrence Rosenthal debate the constitutionality of stop-and-frisk in New York City in light ...


The Missed Opportunity Of United States V. Jones: Commercial Erosion Of Fourth Amendment Protection In A Post Google Earth World, Mary Graw Leary Jan 2012

The Missed Opportunity Of United States V. Jones: Commercial Erosion Of Fourth Amendment Protection In A Post Google Earth World, Mary Graw Leary

Scholarly Articles and Other Contributions

The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages is a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it my merely announcing 24 hour surveillance. Similarly, the ...


Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports Jan 2012

Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports

Journal Articles

Although few noticed the link between them, two Supreme Court cases decided in the same week last Term, Ashcroft v. al-Kidd and Camreta v. Greene, both involved the Fourth Amendment implications of detaining witnesses to a crime. Al-Kidd, an American citizen, was arrested under the federal material witness statute in connection with an investigation into terrorist activities, and Greene, a nine-year-old suspected victim of child abuse, was seized and interrogated at school by two state officials. The opinions issued in the two cases did little to resolve the constitutional issues that arise in witness detention cases, and in fact muddied ...


A Brave New World Of Stop And Frisk, Ronald J. Bacigal Oct 2011

A Brave New World Of Stop And Frisk, Ronald J. Bacigal

Law Faculty Publications

In this article, the author Ron Bacigal discusses the editorials, The Shame of New York by Bob Herbert and Fighting Crime Where the Criminals Are by Heather MacDonald. These editorials were prompted by the New York City Police Department's release of figures regarding "stop and frisk" incidents within New York City.' MacDonald and Herbert reacted to the same statistical report by putting two very different spins on the raw data. While it's always helpful to compile empirical evidence, Bacigal suggests that we also need to look beyond the mere numbers. If you put aside anecdotal versions of encounters ...


School Children And Parolees: Not So Special Anymore, Edwin Butterfoss Jan 2011

School Children And Parolees: Not So Special Anymore, Edwin Butterfoss

Faculty Scholarship

The Fourth Amendment special needs exception may be one of the Court’s most puzzling doctrines. Since its origin, the Court has struggled to define its limits and its place in the Court’s suspicionless search and seizure jurisprudence. At times the Court has suggested that the exception is the only route to upholding a search or seizure in the absence of individualized suspicion, while at other times it has stated that it is just one of a limited number of exceptions to the requirement of individualized suspicion. Historically, while the application of the special needs exception has been unpredictable ...


The Need To Overrule Mapp V. Ohio, William T. Pizzi Jan 2011

The Need To Overrule Mapp V. Ohio, William T. Pizzi

Articles

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious level ...


Arrest Efficiency And The Fourth Amendment, Song Richardson Jan 2011

Arrest Efficiency And The Fourth Amendment, Song Richardson

Articles in Law Reviews & Other Academic Journals

In recent years, legal scholars have utilized the science of implicit social cognition to reveal how unconscious biases affect perceptions, behaviors, and judgments. Employing this science, scholars critique legal doctrine and challenge courts to take accurate theories of human behavior into account or to explain their failure to do so. Largely absent from this important conversation, however, are Fourth Amendment scholars. This void is surprising because the lessons of implicit social cognition can contribute much to understanding police behavior, especially as it relates to arrest efficiency or hit rates - the rates at which police find evidence of criminal activity when ...


Substitution Effects: A Problematic Justification For The Third-Party Doctrine Of The Fourth Amendment, Blake Ellis Reid Jan 2010

Substitution Effects: A Problematic Justification For The Third-Party Doctrine Of The Fourth Amendment, Blake Ellis Reid

Articles

In the past half-century, the Supreme Court has crafted a vein of jurisprudence virtually eliminating Fourth Amendment protection in information turned over to third parties - regardless of any subjective expectation of privacy or confidentiality in the information on the part of the revealer. This so-called “third-party” doctrine of the Fourth Amendment has become increasingly controversial in light of the growing societal reliance on the Internet in the United States, where nearly every transaction requires a user to turn information over to at least one third party: the Internet service provider (“ISP”).

Citing the scholarship that has criticized the third-party doctrine ...