Fourth Amendment Commons^™

The Fourth Amendment's Constitutional Home, Gerald S. Dickinson

Articles

The home enjoys omnipresent status in American constitutional law. The Bill of Rights, peculiarly, has served as the central refuge for special protections to the home. This constitutional sanctuary has elicited an intriguing textual and doctrinal puzzle. A distinct thread has emerged that runs through the first five amendments delineating the home as a zone where rights emanating from speech, smut, gods, guns, soldiers, searches, sex, and self-incrimination enjoy special protections. However, the thread inexplicably unravels upon arriving at takings. There, the constitutional text omits and the Supreme Court’s doctrine excludes a special zone of safeguards to the home. This …

(Re)Framing Race In Civil Rights Lawyering, Anthony V. Alfieri, Angela Onwuachi-Willig

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This Review examines the significance of Henry Louis Gates, Jr.'s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation's legal system and for the regulation of race in the legal profession, especially in the everyday labor of civil-rights and poverty lawyers, prosecutors, and public defenders. Surprisingly, few have explored the relevance of the racial narratives distilled by Gates in Stony the Roa - the images, stereotypes, and tropes that Whites constructed of Blacks to deepen and ensure the life and legacy of white supremacy-to the practice …

Custodial Compulsion, Kyron J. Huigens

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In cases that fall under Miranda v Arizona, police interrogators not only give a suspect reasons to confess; they also suggest that the suspect ought to confess. In doing so, interrogators effectively invoke the Wigmorean duty of a citizen to produce any evidence he has in his possession, including his own confession. That is, they invoke the duty against which the Self Incrimination Clause stands, so that the clause is applicable to police interrogations, and is violated where it is not waived. This means that “a Miranda violation” is a violation of the Self Incrimination Clause in the field, just …

Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David A. Harris, David Rudovsky

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The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of …

Whren's Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr.

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This article is adapted from remarks presented at CWRU Law School's symposium marking the 20th anniversary of Whren v. United States. The article critiques Whren’s constitutional methodology and evident willful blindness to issues of social psychology, unconscious bias, and the lengthy American history of racialized conceptions of crime and criminalized conceptions of race. The article concludes by suggesting a possible path forward: reconceptualizing racially motivated pretextual police encounters as a badge or incident of slavery under the Thirteenth Amendment issue rather than as abstract Fourth or Fourteenth Amendment issues.

Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert

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Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s …

Public Interest(S) And Fourth Amendment Enforcement, Alexander A. Reinert

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Fourth Amendment events generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the amendment creates only tension between privately held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered …

Picture This: Body Worn Video Devices ('Head Cams') As Tools For Ensuring Fourth Amendment Compliance By Police, David A. Harris

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A new technology has emerged with the potential to increase police compliance with the law and to increase officers’ accountability for their conduct. Called “body worn video” (BWV) or “head cams,” these devices are smaller, lighter versions of the video and audio recording systems mounted on the dash boards of police cars. These systems are small enough that they consist of something the size and shape of a cellular telephone earpiece, and are worn by police officers the same way. Recordings are downloaded directly from the device into a central computer system for storage and indexing, which protects them from …

How Accountability-Based Policing Can Reinforce - Or Replace - The Fourth Amendment Exclusionary Rule, David A. Harris

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In Hudson v. Michigan, a knock-and-announce case, Justice Scalia's majority opinion came close to jettisoning the Fourth Amendment exclusionary rule. The immense costs of the rule, Scalia said, outweigh whatever benefits might come from it. Moreover, police officers and police departments now generally follow the dictates of the Fourth Amendment, so the exclusionary rule has outlived the reasons that the Court adopted it in the first place. This viewpoint did not become the law because Justice Kennedy, one member of the five-vote majority, withheld his support from this section of the opinion. But the closeness of the vote on …

Fourth Amendment Lessons From The Highway And The Subway: A Principled Approach To Suspicionless Searches, Ricardo J. Bascuas

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The threat of future terrorist attacks has sped the proliferation of random, suspicionless searches and seizures, such as those now made of New York City subway riders. Courts assess the legality of such searches with an inherently flawed balancing test developed to assess searches and seizures made without "probable cause." Although scholars and Justices alike have decried the resort to balancing individual interests against the government's need to search, no alternative framework has been proposed. This Article proposes a more principled, objective inquiry for determining when suspicionless searches can be made. To eliminate the need for balancing, this Article advances …

Kyllo V. United States And The Partial Ascendance Of Justice Scalia's Fourth Amendment, Richard Henry Seamon

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No abstract provided.

Enforcing Family Promises: Reliance, Reciprocity, And Relational Contract, Melanie B. Leslie

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Courts are willing, in commercial contexts, to enforce promises even without consideration when enforcement supports a norm of reciprocity-a norm which recognizes that promises are seldom totally gratuitous, but are often made in furtherance of reciprocal, long-term, trust-based relationships. In this article, Professor Leslie argues that relational contract principles are firmly embedded in wills law. Courts enforce the reciprocity norm in the family context just as they do in commercial contexts; this enforcement is seen, however, not in breach of promise suits, which occur rarely between family members, but rather in will contests. Despite the prevalent ideology of wills law, …

Car Wars: The Fourth Amendment's Death On The Highway, David A. Harris

Articles

In just the past few terms, the Supreme Court has issued several decisions that have increased police discretion to stop and question drivers and passengers and search both these persons and their vehicles. These cases are only the latest in a line that has slowly but surely made it ever easier for police to do these things without being concerned with procedural or constitutional obstacles.

This article traces the history of those cases, and argues that, however much protection the Fourth Amendment might accord to an ordinary citizen in his or her home or even walking down the street, it …

Standing Up For Fourth Amendment Rights: Salvucci, Rawlings, And The Reasonable Expectation Of Privacy (Comment), Elizabeth Brandt

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The initial inquiry a court must make before considering a motion to suppress evidence based on an unreasonable search and seizure is whether the individual has standing under the fourth amendment. This Note examines the historical development of the standing doctrines leading to the reasonable expectation of privacy test adopted by the Supreme Court in Rakas v. Illinois. The Note also identifies the problems created by the Court's far-reaching application of this test. The author concludes that the overall effect of recent decisions may be to limit the number of defendants able to assert fourth amendment claims, since suppression hearing …

High On The Seas: Drug Smuggling, The Fourth Amendment, And Warrantless Searches At Sea, Daniel H. Foote

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Today no statute prohibits the mere possession of marijuana or other controlled substances beyond the three-mile offshore territorial limit of the United States; but prosecutions relating to vessels carrying controlled substances outside the territorial waters may be based upon charges of conspiracy to import or distribute the substances. In attempting to halt the recent increase in smuggling of such contraband by sea, the United States Coast Guard and other law enforcement agencies have aggressively exercised their powers to stop and search vessels. Two parallel statutory provisions, 14 U.S.C. § 89(a) and 19 U.S.C. § 158,(a), give the Coast Guard and …

The Fourth Amendment As A Way Of Talking About People: A Study Of Robinson And Matlock, James Boyd White

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One way to regard what the Supreme Court has done in the cases it has decided under the Fourth Amendment is to say that it has created a specialized discourse of adjudication, a language in which it can talk about and dispose of the repeated conflicts that arise between an officer engaged in the process of crime control and a citizen upon whose freedom or security he intrudes. The events which bring these two figures together are bewildering in their variety and complexity, and the claims on each side are deeply felt and strenuously made. It has not been easy …

Political Surveillance And The Fourth Amendment, Alan Meisel

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The United States District Court case has left the scope of the warrant protection of the fourth amendment considerably clearer and broader. The door left ajar in Katz has been firmly fastened shut by the Court leaving only the traditional exceptions to the warrant requirement, which are based upon practical necessity, and the still unconfronted question of the power of the executive to conduct warrantless surveillances of foreign agents in national security cases." It is also clear that courts are no less competent to evaluate the appropriateness of a search and seizure in an internal security case than in a …