Criminal Procedure Commons^™

Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Rethinking The Fourth Amendment In The Age Of Supercomputers, Artificial Intelligence, And Robots, Melanie M. Reid

Melanie M. Reid

Fourth Amendment Remedies As Rights: The Warrant Requirement, David Gray

David C. Gray

The constitutional status of the warrant requirement is hotly debated. Critics argue that neither the text nor history of the Fourth Amendment support a warrant requirement. Also questioned is the warrant requirement’s ability to protect Fourth Amendment interests. Perhaps in response to these concerns, the Court has steadily degraded the warrant requirement through a series of widening exceptions. The result is an unsatisfying jurisprudence that fails on both conceptual and practical grounds.

These debates have gained new salience with the emergence of modern surveillance technologies such as stingrays, GPS tracking, drones, and Big Data. Although a majority of the Court …

Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried

David Kaye

DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been neglected.At the investigative stage, courts have barely begun to focus on the legal limitations on the power of the police to obtain samples directly from suspects and to use the data from DNA samples in various ways. Issues such as the propriety of "DNA dragnets" (in which large numbers of individuals in a geographic area …

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 …

Veteran Police Officers And Three-Dollar Steaks: The Subjective/Objective Dimensions Of Probable Cause And Reasonable Suspicion, Kit Kinports

Kit Kinports

This Article addresses two issues surrounding probable cause and reasonable suspicion that test the line between subjective and objective standards in Fourth Amendment jurisprudence: the extent to which a particular police officer’s training and experience ought to be considered in measuring probable cause and reasonable suspicion, and the relevance of the officer’s subjective beliefs about the presence of a weapon in assessing the reasonable suspicion required to justify a frisk. Although both questions have split the lower courts and remain unresolved by the Supreme Court, the majority of courts treat them inconsistently, recognizing the importance of an officer’s training, experience, …

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

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.

Diminishing Probable Cause And Minimalist Searches, Kit Kinports

Kit Kinports

This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are …

Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports

Kit Kinports

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 …

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

Kit Kinports

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 …

Dangerous Dicta, David Gray

David C. Gray

In United States v. Heller, the Court held that individuals have a Second Amendment right to keep and bear arms apart from their associations with state militias. Although that holding was and remains controversial, less attention has been paid to what the Heller Court had to say about the Fourth Amendment. Writing for the Court in Heller, Justice Scalia asserts that the phrase “right of the people” in the Fourth Amendment “unambiguously refers to individual rights, not ‘collective’ rights or rights that may only be exercised through participation in some corporate body.” By any definition, this is dicta. It is …

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 …

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 …

Dalla Traccia Di Sangue All'identikit Facciale, Charles E. Maclean

Charles E. MacLean

Assessment of dilemmas inherent in using DNA phenotyping methods to generate a physical likeness of a crime suspect based only on DNA shed at the crime scene.

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 …

The First 48: Ending The Use Of Categorically Unconstitutional Investigative Holds In Violation Of County Of Riverside V. Mclaughlin, Daniel A. Horwitz

Daniel A. Horwitz

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

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 …

You Booze, You Bruise, You Lose: Analyzing The Constitutionality Of Florida’S Involuntary Blood Draw Statute In The Wake Of Missouri V. Mcneely, Francisco D. Zornosa

Francisco D Zornosa

No abstract provided.

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 …

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 …

Whose Metadata Is It Anyways? Why Riley V. California Illustrates That The National Security Administration's Bulk Data Collection Is A Fourth Amendment Problem, Jesse S. Weinstein

Jesse S Weinstein

No abstract provided.

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 …

Grounding Drones: Big Brother’S Tool Box Needs Regulation Not Elimination, Melanie M. Reid

Melanie M. Reid

One of the most significant contemporary issues in privacy law relates to law enforcement’s new domestic surveillance tool: unmanned aerial vehicles, also known as, drones. Law enforcement’s use of aerial surveillance as an investigatory tool is currently under attack. In the past, if law enforcement chose to follow a suspect throughout the day, either on the ground or in the air, they need not worry about seeking a warrant or determining whether probable cause or reasonable suspicion exists to justify their surveillance. Aerial surveillance of criminal suspects has been considered outside the protections of Fourth Amendment law. In the 1980’s, …

The "Not A Search" Game, John F. Stinneford

John F. Stinneford

No abstract provided.

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 …

“Them Feds Don’T Play Fair” : The Fourth Amendment And Cloud-Based Data, Laurie B. 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 …