Open Access. Powered by Scholars. Published by Universities.®

Criminal Procedure Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 17 of 17

Full-Text Articles in Criminal Procedure

Dna Identification Databases: Legality, Legitimacy, And The Case For Population-Wide Coverage, David H. Kaye, Michael E. Smith Mar 2016

Dna Identification Databases: Legality, Legitimacy, And The Case For Population-Wide Coverage, David H. Kaye, Michael E. Smith

David Kaye

Over the past decade, law enforcement authorities have amassed huge collections of DNA samples and the identifying profiles derived from them. Large DNA databanks routinely help to identify the guilty and to exonerate the innocent, but as the databanks grow, so do fears about civil liberties. Perhaps the most controversial policy issue in the creation of these databases is the question of coverage: Whose DNA profiles should be stored in them? The possibilities extend from convicted violent sex offenders to all convicted felons, to everyone arrested, to the entire population. This Article questions the rationales for drawing the line at …


The Dog Days Fourth Amendment Jurisprudence, Kit Kinports Jan 2016

The Dog Days Fourth Amendment Jurisprudence, Kit Kinports

Kit Kinports

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 flowing …


Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports Jan 2016

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

Kit Kinports

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.


Criminal Procedure In Perspective, Kit Kinports Jan 2016

Criminal Procedure In Perspective, Kit Kinports

Kit Kinports

This Article attempts to situate the Supreme Court's constitutional criminal procedure jurisprudence in the academic debates surrounding the reasonable person standard, in particular, the extent to which objective standards should incorporate a particular individual's subjective characteristics. Analyzing the Supreme Court's search and seizure and confessions opinions, I find that the Court shifts opportunistically from case to case between subjective and objective tests, and between whose point of view - the police officer's or the defendant's - it views as controlling. Moreover, these deviations cannot be explained either by the principles the Court claims underlie the various constitutional provisions at issue …


The Search And Seizure Of Private Papers: Fourth And Fifth Amendment Considerations, Steven Shiffrin Jun 2015

The Search And Seizure Of Private Papers: Fourth And Fifth Amendment Considerations, Steven Shiffrin

Steven H. Shiffrin

There is a recognizable factual distinction between the search and seizure of private papers and the search and seizure of non-documentary items. It is difficult, however, to decide when such a distinction should assume constitutional dimensions. Specifically, are there circumstances under which private papers should be immune from search and seizure? In a 1967 landmark case, Warden v. Hayden, the United States Supreme Court raised doubts concerning the continued validity of decades of settled law on this important issue. Warden's reopening of this problem aroused the curiosity of commentators, spurred new policy arguments in the American Law Institute, divided the …


Of Myths And Mapp: A Response To Professor Magee, Sheri Johnson Dec 2014

Of Myths And Mapp: A Response To Professor Magee, Sheri Johnson

Sheri Lynn Johnson

No abstract provided.


Profiling With Apologies, Sherry F. Colb Dec 2014

Profiling With Apologies, Sherry F. Colb

Sherry Colb

No abstract provided.


Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb Dec 2014

Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, 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 Dec 2014

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 Dec 2014

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 Dec 2014

Stopping A Moving Target, Sherry F. Colb

Sherry Colb

No abstract provided.


Recent Decision Note, Thomas L. Shaffer Nov 2013

Recent Decision Note, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.


The Supreme Court And Its Purported Preference For Search Warrants, Robert M. Bloom Oct 2011

The Supreme Court And Its Purported Preference For Search Warrants, Robert M. Bloom

Robert M. Bloom

No abstract provided.


Pragmatism, Originalism, Race And The Case Against Terry V. Ohio, Lawrence Rosenthal Dec 2009

Pragmatism, Originalism, Race And The Case Against Terry V. Ohio, Lawrence Rosenthal

Lawrence Rosenthal

Perhaps no decision of the United States Supreme Court concerning the Fourth Amendment’s prohibition on “unreasonable search and seizure” has come in for more criticism than Terry v. Ohio, in which the Supreme Court concluded that even absent probable cause to arrest, a brief detention and protective search of an individual comports with the Fourth Amendment “where a police officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous . . .” Terry is frequently denounced as granting the …


Probability, Probable Cause, And The Law Of Unintended Consequences, Lawrence Rosenthal Dec 2008

Probability, Probable Cause, And The Law Of Unintended Consequences, Lawrence Rosenthal

Lawrence Rosenthal

This brief essay responds to Max Minzer's article "Putting Probability Back into Probable Cause." The essay supports Professor Minzer's proposal for the use of empirical evidence of the success of a given investigating officer or investigative technique in assessing the existence of probable cause to search or seize, but offers a caveat. If an officer's "hit rate" becomes central to Fourth Amendment analysis, there is a serious danger of overdeterrence which, in turn, could lead to a dangerous escalation in violent crime. The essay offers some proposals for minimizing the risk of overdeterrence in an empirically-based regime of probable cause.


The Crime Drop And Racial Profiling: Toward An Empirical Jurisprudence Of Search And Seizure, Lawrence Rosenthal Dec 2005

The Crime Drop And Racial Profiling: Toward An Empirical Jurisprudence Of Search And Seizure, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.


The Crime Drop And Racial Profiling: Toward An Empirical Jurisprudence Of Search And Seizure, Lawrence Rosenthal Dec 2004

The Crime Drop And Racial Profiling: Toward An Empirical Jurisprudence Of Search And Seizure, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.