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Articles 1 - 30 of 1486

Full-Text Articles in Fourth Amendment

Student Surveillance, Racial Inequalities, And Implicit Racial Bias, Jason P. Nance Apr 2019

Student Surveillance, Racial Inequalities, And Implicit Racial Bias, Jason P. Nance

Jason P. Nance

In the wake of high-profile incidents of school violence, school officials have increased their reliance on a host of surveillance measures to maintain order and control in their schools. Paradoxically, such practices can foster hostile environments that may lead to even more disorder and dysfunction. These practices may also contribute to the so-called “school-to-prison pipeline” by pushing more students out of school and into the juvenile justice system. However, not all students experience the same level of surveillance. This Article presents data on school surveillance practices, including an original empirical analysis of restricted data recently released by the U.S ...


All Watched Over By Machines Of Loving Grace: Border Searches Of Electronic Devices In The Digital Age, Sean O'Grady Apr 2019

All Watched Over By Machines Of Loving Grace: Border Searches Of Electronic Devices In The Digital Age, Sean O'Grady

Fordham Law Review

The border search exception to the Fourth Amendment has historically given the U.S. government the right to conduct suspicionless searches of the belongings of any individual crossing the border. The federal government relies on the border search exception to search and detain travelers’ electronic devices at the border without a warrant or individualized suspicion. The government’s justification for suspicionless searches of electronic devices under the traditional border search exception for travelers’ property has recently been called into question in a series of federal court decisions. In March 2013, the Ninth Circuit in United States v. Cotterman became the ...


Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Josh Gupta-Kagan Apr 2019

Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Josh Gupta-Kagan

Fordham Law Review

The U.S. Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue in the 1990s ...


Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue Apr 2019

Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of ...


Property's Edges, David A. Dana, Nadav Shoked Mar 2019

Property's Edges, David A. Dana, Nadav Shoked

Boston College Law Review

Property law thinking normally assumes that the protection afforded an owner does not vary in intensity across the owned asset. Property rights’ legal potency can differ between different assets, but not within a given asset. This Article argues that this assumption is wrong—and that when lawmakers pretend that it is not, detrimental results ensue. This Article demonstrates that, in fact, property law distinguishes the edges of an asset from its core. For good normative reasons, the law recognizes much weaker ownership rights in the edges of an asset—the areas lying close to the private property boundary line—than ...


When A Tent Is Your Castle: Constitutional Protection Against Unreasonable Searches Of Makeshift Dwellings Of Unhoused Persons, Evanie Parr Feb 2019

When A Tent Is Your Castle: Constitutional Protection Against Unreasonable Searches Of Makeshift Dwellings Of Unhoused Persons, Evanie Parr

Seattle University Law Review

This Note will argue that all jurisdictions should follow the Washington State Court of Appeals, Division II in validating makeshift dwellings used by people experiencing homelessness as spaces protected from unwarranted police intrusions by shifting evaluations of “reasonable expectations of privacy” to a more equitable standard that appreciates the realities of economic disparity. This approach to constitutional protections against unreasonable searches and seizures is imperative to protect the rights of people experiencing homelessness, given that such individuals are regularly subjected to invasions of privacy and heightened exposure to the criminal justice system.


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu Feb 2019

Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu

Margaret Hu

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies.

A ...


The Demise Of § 1983 Malicious Prosecution: Separating Tort Law From The Fourth Amendment, Erin E. Mcmannon Feb 2019

The Demise Of § 1983 Malicious Prosecution: Separating Tort Law From The Fourth Amendment, Erin E. Mcmannon

Notre Dame Law Review

The common-law tort of malicious prosecution originally developed to provide a remedy for plaintiffs who were unjustly prosecuted in a criminal proceeding. Today, malicious prosecution actions can be brought to redress wrongful civil actions as well. The “central thrust” of an action for malicious prosecution is a right not to be involved in an unjustified litigation.

This Note suggests that the confusion in this area of law derives from the use of the language of malicious prosecution tort law to describe what really amounts to a Fourth Amendment seizure claim under § 1983. There is no constitutional right to be free ...


Policing, Danger Narratives, And Routine Traffic Stops, Jordan Blair Woods Feb 2019

Policing, Danger Narratives, And Routine Traffic Stops, Jordan Blair Woods

Michigan Law Review

This Article presents findings from the largest and most comprehensive study to date on violence against the police during traffic stops. Every year, police officers conduct tens of millions of traffic stops. Many of these stops are entirely unremarkable—so much so that they may be fairly described as routine. Nonetheless, the narrative that routine traffic stops are fraught with grave and unpredictable danger to the police permeates police training and animates Fourth Amendment doctrine. This Article challenges this dominant danger narrative and its centrality within key institutions that regulate the police.

The presented study is the first to offer ...


Mass Arrests & The Particularized Probable Cause Requirement, Amanda Peters Jan 2019

Mass Arrests & The Particularized Probable Cause Requirement, Amanda Peters

Boston College Law Review

Three Supreme Court cases—United States v. Di Re, Ybarra v. Illinois, and Maryland v. Pringle—established the need for individualized or particularized probable cause in multiple-suspect arrests and searches. These three Supreme Court decisions have been used by plaintiffs seeking to sue police departments and municipalities under 42 U.S.C. § 1983 for civil rights violations stemming from mass arrests unsupported by probable cause. Oddly enough, these decisions have also been relied upon by defendants who allege that the law is unclear when it comes to particularized probable cause and multiple-suspect arrests. This Article seeks to carefully examine the ...


Policing Narrative, Tal Kastner Jan 2019

Policing Narrative, Tal Kastner

SMU Law Review

Counter narrative, a story that calls attention to and rebuts the presumptions of a dominant narrative framework, functions as an essential tool to reshape the bounds of the law. It has the potential to shape the collective notion of what constitutes legal authority. Black Lives Matter offers a counter narrative that challenges the characterization of the shared public space, among other aspects of contemporary society, as the space of law. Using the concept of necropower—the mobilization and prioritization of the state’s power to kill—I analyze the contested physical and conceptual space of law exposed by the counter ...


Implicit Racial Bias And Students' Fourth Amendment Rights, Jason P. Nance Jan 2019

Implicit Racial Bias And Students' Fourth Amendment Rights, Jason P. Nance

Indiana Law Journal

Tragic acts of school violence such as what occurred in Columbine, Newtown, and, more recently, in Parkland and Santa Fe, provoke intense feelings of anger, fear, sadness, and helplessness. Understandably, in response to these incidents (and for other reasons), many schools have intensified the manner in which they monitor and control students. Some schools rely on combinations of security measures such as metal detectors; surveillance cameras; drug-sniffing dogs; locked and monitored gates; random searches of students’ belongings, lockers, and persons; and law enforcement officers. Not only is there little empirical evidence that these measures actually make schools safer, but overreliance ...


Byrd V United States: Unauthorized Drivers Of Rental Cards Have Fourth Amendment Rights? Not As Evident As It Seems, Tracey Maclin Jan 2019

Byrd V United States: Unauthorized Drivers Of Rental Cards Have Fourth Amendment Rights? Not As Evident As It Seems, Tracey Maclin

Faculty Scholarship

No discerning student of the Supreme Court would contend that Justice Anthony Kennedy broadly interpreted the Fourth Amendment during his thirty years on the Court. His majority opinions in Maryland v. King, Drayton v. United States and his willingness to join the three key sections of Justice Scalia’s opinion in Hudson v. Maryland, which held that suppression is never a remedy for knock-and-announce violations, are just a few examples of Justice Kennedy’s narrow view of the Fourth Amendment.

In light of his previous votes in search and seizure cases, surprisingly Justice Kennedy, in what would be his final ...


Evolving Autonomous Vehicle Technology And The Erosion Of Privacy, Raquel Toral Dec 2018

Evolving Autonomous Vehicle Technology And The Erosion Of Privacy, Raquel Toral

University of Miami Business Law Review

No abstract provided.


Psychosocial Analysis Of An Ethnography At The Cuyahoga County Public Defenders Office, Ernest M. Oleksy Dec 2018

Psychosocial Analysis Of An Ethnography At The Cuyahoga County Public Defenders Office, Ernest M. Oleksy

The Downtown Review

Too often, social science majors become jaded with their field of study due to a misperception of the nature of many potential jobs which they are qualified for. Such discord is prevalent amongst undergraduates who strive for work in the criminal justice system. Hollywood misrepresentations become the archetypes of the aforementioned field, leaving out the necessity and ubiquity of accompanying desk work. Still other social science majors struggle to identify theoretical interpretations in praxis.


Sb 336 - Law Enforcement Officers And Agencies, Richard J. Uberto Jr., Brooke Wilner Dec 2018

Sb 336 - Law Enforcement Officers And Agencies, Richard J. Uberto Jr., Brooke Wilner

Georgia State University Law Review

The Act prohibits data carriers from disclosing to their customers the existence of a subpoena issued for the production of the customers’ records. The Act also allows the Georgia Bureau of Investigation to retain the fingerprints of individuals working in certain professions that require background checks for the duration of employment.


Dialing It Back: Why Courts Should Rethink Students’ Privacy And Speech Rights As Cell Phone Communications Erode The ‘Schoolhouse Gate’, Nicholas J. Mcguire Nov 2018

Dialing It Back: Why Courts Should Rethink Students’ Privacy And Speech Rights As Cell Phone Communications Erode The ‘Schoolhouse Gate’, Nicholas J. Mcguire

Duke Law & Technology Review

The ubiquity of cell phones in today’s society has forced courts to change or dismiss established, but inapplicable analytical frameworks. Two such frameworks in the school setting are regulations of student speech and of student searches. This Article traces the constitutional jurisprudence of both First Amendment off-campus speech protection and Fourth Amendment search standards as applied to the school setting. It then analyzes how the Supreme Court’s ruling in Riley v. California complicates both areas. Finally, it proposes a pragmatic solution: by recognizing a categorical First Amendment exception for “substantial threats” against the school community, courts could accommodate ...


The Common Law Endures In The Fourth Amendment, George C. Thomas Iii Oct 2018

The Common Law Endures In The Fourth Amendment, George C. Thomas Iii

William & Mary Bill of Rights Journal

The text of the Fourth Amendment provides no guidance about what makes a search unreasonable or when warrants are required to make a search reasonable. The Supreme Court has had to craft a doctrine based on intuition, policy goals, and halfhearted stabs at history. This Article argues that the Court’s Fourth Amendment doctrine is stable when it roughly tracks the eighteenth-century common law protection of property, privacy, and liberty. When the Court has sought to provide more protection than the common law provided, the result has been an erratic doctrine that has gradually receded almost back to the common ...


The Stored Communications Act: Property Law Enforcement Tool Or Instrument Of Oppression?, Raymond Boyce Oct 2018

The Stored Communications Act: Property Law Enforcement Tool Or Instrument Of Oppression?, Raymond Boyce

West Virginia Law Review

No abstract provided.


Out Of The “Serbonian Bog”1 Surrounding Government Acquisition Of Third-Party Cell Site Location Information: “Get A Warrant” †, Glenn Williams Sep 2018

Out Of The “Serbonian Bog”1 Surrounding Government Acquisition Of Third-Party Cell Site Location Information: “Get A Warrant” †, Glenn Williams

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


The Elusive Constitutional Right To Informational Privacy, Larry J. Pittman Sep 2018

The Elusive Constitutional Right To Informational Privacy, Larry J. Pittman

Nevada Law Journal

No abstract provided.


From Storefront To Dashboard: The Use Of The Americans With Disabilities Act To Govern Websites, Kelby S. Carlson Aug 2018

From Storefront To Dashboard: The Use Of The Americans With Disabilities Act To Govern Websites, Kelby S. Carlson

Catholic University Law Review

The question of the effects of technological change on the interpretation of statutes is a complicated one. Particularly for statutes that govern a broad range of issues, the advent of new technology can precipitate re-examination of the rationale behind, and nature of, the relevant law. The Americans with Disabilities Act was enacted, in part, to give Americans with disabilities greater access to public space, allowing them to enjoy the advantages such access offers on an equal footing with the able-bodied. The adoption of digital technology across society and, in particular, the widespread ubiquity of the internet now raise questions about ...


Chilling: The Constitutional Implications Of Body-Worn Cameras And Facial Recognition Technology At Public Protests, Julian R. Murphy Aug 2018

Chilling: The Constitutional Implications Of Body-Worn Cameras And Facial Recognition Technology At Public Protests, Julian R. Murphy

Washington and Lee Law Review Online

In recent years body-worn cameras have been championed by community groups, scholars, and the courts as a potential check on police misconduct. Such has been the enthusiasm for body-worn cameras that, in a relatively short time, they have been rolled out to police departments across the country. Perhaps because of the optimism surrounding these devices there has been little consideration of the Fourth Amendment issues they pose, especially when they are coupled with facial recognition technology (FRT). There is one particular context in which police use of FRT equipped body-worn cameras is especially concerning: public protests. This Comment constitutes the ...


Fourth Amendment Protection In The Digital Age, Daniel Sorkin Aug 2018

Fourth Amendment Protection In The Digital Age, Daniel Sorkin

GGU Law Review Blog

The Supreme Court granted certiorari in Carpenter v United States, a case that offers the Court another opportunity to address how far Fourth Amendment protections against warrantless searches and seizures extend. Specifically, the issue before the Court was “whether the warrantless seizure and search of historical cell phone records revealing the locations and movement of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.”

On appeal before the Sixth Circuit, a divided three-judge panel held that “no search occurred under the Fourth Amendment because Carpenter had no reasonable expectation of privacy in cell ...


Fourth Amendment Constraints On The Technological Monitoring Of Convicted Sex Offenders, Ben A. Mcjunkin, J. J. Prescott Jul 2018

Fourth Amendment Constraints On The Technological Monitoring Of Convicted Sex Offenders, Ben A. Mcjunkin, J. J. Prescott

Articles

More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices. Many offenders will be monitored for life. The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as ‘‘civil’’ in character—and courts have seemed to agree. In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil ...


Fourth Amendment Fairness, Richard M. Re Jun 2018

Fourth Amendment Fairness, Richard M. Re

Michigan Law Review

Fourth Amendment doctrine is attentive to a wide range of interests, including security, informational privacy, and dignity. How should courts reconcile these competing concerns when deciding which searches and seizures are “unreasonable”? Current doctrine typically answers this question by pointing to interest aggregation: the various interests at stake are added up, placed on figurative scales, and compared, with the goal of promoting overall social welfare. But interest aggregation is disconnected from many settled doctrinal rules and leads to results that are unfair for individuals. The main alternative is originalism; but historical sources themselves suggest that the Fourth Amendment calls for ...


Dangerous Warrants, Nirej Sekhon Jun 2018

Dangerous Warrants, Nirej Sekhon

Washington Law Review

The Supreme Court has cast judicial warrants as the Fourth Amendment gold standard for regulating police discretion. It has embraced a “warrant preference” on the premise that requiring police to obtain advance judicial approval for searches and seizures encourages accurate identification of evidence and suspects while minimizing interference with constitutional rights. The Court and commentators have overlooked the fact that most outstanding warrants do none of these things. Most outstanding warrants are what this article terms “non-compliance warrants”: summarily issued arrest warrants for failures to comply with a court or police order. State and local courts are profligate in issuing ...


Privacy In The Cloud: The Fourth Amendment Fog, Sarah Aitchison Jun 2018

Privacy In The Cloud: The Fourth Amendment Fog, Sarah Aitchison

Washington Law Review

The Cloud has changed how individuals record, store, and aggregate their personal information. As technology’s capacity for holding an individual’s most intimate details and recording day-to-day experiences increases, Fourth Amendment privacy protections become less equipped to respond to technological advances. These advances allow private companies to store an immense amount of their consumers’ personal information, and government entities to obtain that information. In response, tech companies have begun refusing to comply with government demands for information collected and stored in their devices and in the Cloud, and are increasingly ending up in court, fighting orders to disclose consumer ...


The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An Empirical Assessment Of Graham V. Connor, Osagie K. Obasogie, Zachary Newman Jun 2018

The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An Empirical Assessment Of Graham V. Connor, Osagie K. Obasogie, Zachary Newman

Northwestern University Law Review

Graham v. Connor established the modern constitutional landscape for police excessive force claims. The Supreme Court not only refined an objective reasonableness test to describe the constitutional standard, but also held that the Fourth Amendment is the sole avenue for courts to adjudicate claims that police violated a person’s constitutional rights in using force. In this Essay, we ask: What impact did this decision have on the nature of police excessive force claims in federal courts? To address this, we engaged in a qualitative examination of 500 federal cases (250 in the twenty-six years before Graham and 250 in ...