Criminal Procedure Commons^™

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 …

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, …

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 …

Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle Citron, David Gray

David C. Gray

In his insightful article The Dangers of Surveillance, 126 HARV. L. REV. 1934 (2013), Neil Richards offers a framework for evaluating the implications of government surveillance programs that is centered on protecting "intellectual privacy." Although we share his interest in recognizing and protecting privacy as a condition of personal and intellectual development, we worry in this essay that, as an organizing principle for policy, "intellectual privacy" is too narrow and politically fraught. Drawing on other work, we therefore recommend that judges, legislators, and executives focus instead on limiting the potential of surveillance technologies to effect programs of broad and indiscriminate …

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 …

The Right To Quantitative Privacy, David Gray, Danielle Citron

David C. Gray

We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of …

The Right To Quantitative Privacy, David C. Gray, Danielle Keats Citron

Danielle Keats Citron

We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of …

Cell Phone Location Data And The Fourth Amendment: A Question Of Law, Not Fact, Susan Freiwald

Susan Freiwald

In a significant ruling in the fall of 2010, the Third Circuit Court of Appeals rejected the government’s claim that it could compel cell phone service providers to disclose customer records that indicate the cell towers with which a cell phone has communicated (cell phone location information or CSLI) without obtaining a warrant based on probable cause. In a break with past decisions, the court rejected application of a “third party rule,” under which cell phone users are seen to assume the risk that their providers will disclose location data without the protections of a warrant requirement. The court, however, …