Fourth Amendment Commons^™

The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley

Gerard V. Bradley

No abstract provided.

The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia

Patricia L. Bellia

This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …

Who Should Be The ‘Decider’ On Keeping Our Secrets?, Stephen E. Henderson

Stephen E Henderson

Survey Of Washington Search And Seizure Law: 2013 Update, Justice Charles W. Johnson, Justice Debra L. Stephens

Seattle University Law Review

This survey is intended to serve as a resource to which Washington lawyers, judges, law enforcement officers, and others can turn as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. Many of these cases involve the Washington State Supreme Court’s interpretation of the Washington constitution. Also, as the U.S. Supreme Court has continued to examine Fourth Amendment search and seizure jurisprudence, its …

Down To The Wire: Assessing The Constitutionality Of The National Security Agency's Warrantless Wiretapping Program: Exit The Rule Of Law, Fletcher Baldwin, Robert Shaw

Fletcher N. Baldwin

The article discusses the constitutionality of warrantless wiretapping surveillance by the National Security Agency (NSA) on U.S. citizens. The wiretapping program existed weeks after the September 11, 2001 attacks, on the justification that Congress authorized the president to wiretap U.S. citizens without a warrant, and that the president had inherent authority as commander-in-chief. But it is argued that Congress did not expressly authorize the president to conduct warrantless wiretapping and that he does not have such inherent authority.

We intend this Article to be a commentary on the constitutionality of the NSA wiretapping program solely as it relates to the …

Striking A Balance: The Speech Or Debate Clause’S Testimonial Privilege And Policing Government Corruption, Jay Rothrock

Touro Law Review

No abstract provided.

“Lonesome Road”: Driving Without The Fourth Amendment, Lewis R. Katz

Seattle University Law Review

The protections of the Fourth Amendment on the streets and highways of America have been drastically curtailed. This Article traces the debasement of Fourth Amendment protections on the road and how the Fourth Amendment’s core value of preventing arbitrary police behavior has been marginalized. This Article contends that the existence of a traffic offense should not be the end of the inquiry but the first step, and that defendants should be able to challenge the reasonableness even when there is proof of a traffic offense.

Safe To Drive? Police Powers Of Search And Seizure In The Vehicular Context, Mark Rucci

Honors College

Since their creation, automobiles have become a central facet of the American culture and psyche. As status symbols and modes of transportation their importance cannot be overstated. Americans love their cars, and the average citizen believes that he or she has legitimate privacy interests in his or her vehicle. But is this the case? For decades, The Court has struggled to balance 4th Amendment privacy rights with effective police procedure, and has thus handed down dozens of rulings on the topic, many of which often seem disparate and contradictory. In the face of such confusion, the Court’s answer has almost …

Has Skinner Killed The Katz? Are Society's Expectations Of Privacy Reasonable In Today's Techological World?, Jason Forcier

Jason Forcier

The right to privacy has and will remain a hotly contested debate about American liberties. In 2012, a 3-0 decision by the Sixth Circuit Court of Appeals, in United States v. Melvin Skinner, the court held that there is no “reasonable expectation of privacy in the data given off by. . . cellphone[s].” Given today’s explosion of cellular technology and use of smart phones, is it unreasonable to believe a person should remain secure in their "person" and “effects," as guaranteed under the Fourth Amendment, from unreasonable searches and seizures? Furthermore, with police requiring only a subpoena to a obtain …

Privacy And Consent Over Time: The Role Of Agreement In Fourth Amendment Analysis, Christine Jolls

William & Mary Law Review

No abstract provided.

Searches Incident To Arrest And The Aftermath Of Arizona V. Gant – A Circuit Split As To Gant’S Applicability To Non-Vehicular Searches, Nicholas De Sena

Pace Law Review

The nation’s struggle to balance individual rights of privacy and legitimate law enforcement efforts continues without any clear resolution in sight. The Fourth Amendment of the United States Constitution guarantees citizens the right to be free from unreasonable searches and seizures, stating that search warrants shall be issued only with a showing of probable cause, a description of the place to be searched, and the persons or things to be seized. Complementing the warrant requirement is the principal that searches done without a warrant are per se unreasonable. The Supreme Court, however, has recognized exceptions to the warrant requirement under …

Proposition 8 Is Unconstitutional, But Not Because The Ninth Circuit Said So: The Equal Protection Clause Does Not Support A Legal Distinction Between Denying The Right To Same-Sex Marriage And Not Providing It In The First Place, Nathan Rouse

Seattle University Law Review

In Perry v. Brown, the Ninth Circuit held that Proposition 8 is unconstitutional. But in doing so, the court stepped back from the breadth of the district court’s decision. The Ninth Circuit did not address whether same-sex marriage is a fundamental constitutional right. Nor did the Ninth Circuit address whether the Equal Protection Clause categorically prevents states from limiting marriage to opposite-sex couples. Instead, the Ninth Circuit reached the narrow conclusion that Proposition 8 violates the Equal Protection Clause because it withdrew a preexisting legal right from a marginalized group without any legitimate purpose. The Ninth Circuit should have held …

Criminal Procedure Decisions From The October 2007 Term, Susan N. Herman

Touro Law Review

No abstract provided.

New Jersey V. T.L.O.: The Supreme Court Severely Limits Schoolchildrens' Fourth Amendment Rights When Being Searched By Public School Officials, Missy Kelly Bankhead

Pepperdine Law Review

No abstract provided.

The New American Privacy, Richard J. Peltz-Steele

Faculty Publications

Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 …

Eyes In The Sky: Constitutional And Regulatory Approaches To Domestic Drone Deployment, Hillary B. Farber

Faculty Publications

This article begins with a current look at the deployment of drones domestically, both in terms of their use and the procedure for attaining approval for flight. Part II examines the capabilities of drones. Part III considers the Supreme Court's current Fourth Amendment jurisprudence and its application to law enforcement's use of drones. Part IV reviews existing and proposed federal and state regulation of drones. Part V offers constitutional and legislative prescriptions for regulating drones.

Neurotechnologies At The Intersection Of Criminal Procedure And Constitutional Law, Amanda C. Pustilnik

Faculty Scholarship

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 …

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron

Faculty Scholarship

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and …

Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. Mckenna

Journal Articles

No abstract provided.

Florida V. Jardines: The Wolf At The Castle Door, Timothy C. Macdonnell

Scholarly Articles

The purpose of this article is to examine the controversy regarding the application of the contraband exception to the home and the potential impact of the Florida v. Jardines decision of the U.S. Supreme Court. The article will begin by examining the cases that make up the Supreme Court's contraband exception and some of the Court's precedent regarding the home and warrantless searches. Next, the article will examine the Florida Supreme Court's holding in Jardines and discuss how the Florida court arrived at the conclusion that the canine sniff in that case was a search. This section will compare the …

Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz

Scholarly Works

This article discusses the Supreme Court's ruling in Rehberg v. Paulk, 132 S. Ct. 1497 (2012), which extended the absolute witness immunity recognized in Briscoe v. LaHue, to grand jury witnesses. In an unanimous opinion, written by Justice Samuel A. Alito, Jr., the Court held that grand jury witnesses are absolutely immune from §1983 liability for their testimony, and even for conspiring to give false testimony.

The Mercenary Gap: How To Protect The Constitutional Rights Of American Contractors In The Age Of The Private Military Firm, 46 J. Marshall L. Rev. 1121 (2013), John Sviokla

UIC Law Review

No abstract provided.

“The Lady Of The House” Vs. A Man With A Gun: Applying Kyllo To Gun-Scanning Technology, Sean K. Driscoll

Catholic University Law Review

No abstract provided.

Supreme Court Fortifies Qualified Immunity For Law Enforcement Officers In Warrant Cases, Martin Schwartz

Scholarly Works

This article analyzes the significance of the United States Supreme Court decision in Messerschmidt v. Millender, 132 S.Ct. 1652 (2012), upon §1983 Fourth Amendment claims asserted against state and local law enforcement officers who apply for and enforce warrants. Millender held that police officers who sought and executed a very broad warrant authorizing them to search a residence for guns and gang related material were protected by qualified immunity. The author asserts that §1983 plaintiffs, who seek to recover damages based upon either the application or execution of an allegedly unconstitutional warrant, will now have to overcome various layers of …

Biometric Id Cybersurveillance, Margaret Hu

Faculty Scholarship

The implementation of a universal digitalized biometric ID system risks normalizing and integrating mass cybersurveillance into the daily lives of ordinary citizens. ID documents such as driver’s licenses in some states and all U.S. passports are now implanted with radio frequency identification (RFID) technology. In recent proposals, Congress has considered implementing a digitalized biometric identification card—such as a biometric-based, “high-tech” Social Security Card—which may eventually lead to the development of a universal multimodal biometric database (e.g., the collection of the digital photos, fingerprints, iris scans, and/or DNA of all citizens and noncitizens). Such “hightech” IDs, once merged with GPS-RFID tracking …

Random, Suspicionless Searches Of Students' Belongings: A Legal, Empirical, And Normative Analysis, Jason P. Nance

UF Law Faculty Publications

This Article provides a legal, empirical, and normative analysis of an intrusive search practice used by schools officials to prevent school crime: random, suspicionless searches of students’ belongings. First, it argues that these searches are not permitted under the Fourth Amendment unless schools have particularized evidence of a weapons or substance problem in their schools. Second, it provides normative considerations against implementing strict security measures in schools, especially when they are applied disproportionately on minority students. Third, drawing on recent restricted data from the U.S. Department of Education’s School Survey on Crime and Safety, it provides empirical findings that raise …

Clever Contraband: Why Illinois’ Lockstep With The U.S. Supreme Court Gives Police Authority To Search The Bowels Of Your Vehicle, 47 J. Marshall L. Rev. 425 (2013), Jason Cooper

UIC Law Review

No abstract provided.

'Lonesome Road': Driving Without The Fourth Amendment, Lewis R. Katz

Faculty Publications

American states and municipalities have so many minor traffic regulations that every time a driver gets behind the wheel of a car he or she is likely to commit multiple violations. The violation of any traffic regulation empowers police officers to stop the vehicle, ticket and, in some states, arrest the motorist. Police are physically unable to stop and ticket, let alone arrest, every motorist committing a traffic violation. Instead, police are vested with unlimited discretion when choosing which motorists to stop, warn, ticket, or arrest. So long as there is probable cause for a traffic violation, courts will not …

Debate: The Constitutionality Of Stop-And-Frisk In New York City, David Rudovsky, Lawrence Rosenthal

All Faculty Scholarship

Stop-and-frisk, a crime prevention tactic that allows a police officer to stop a person based on “reasonable suspicion” of criminal activity and frisk based on reasonable suspicion that the person is armed and dangerous, has been a contentious police practice since first approved by the Supreme Court in 1968. In Floyd v. City of New York, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk practices violate both the Fourth and Fourteenth Amendments. Professors David Rudovsky and Lawrence Rosenthal debate the constitutionality of stop-and-frisk in New York City in light of …

Circuit Confusion: The Growing Divide On Whether Gant Applies To Non-Vehicular Searches Incident To Arrest, Patrick D. Messmer

Student Works

No abstract provided.