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Full-Text Articles in Fourth Amendment
Making The Right Gamble: The Odds On Probable Cause, Ronald J. Bacigal
Making The Right Gamble: The Odds On Probable Cause, Ronald J. Bacigal
Law Faculty Publications
Again, is there probable cause to detain, arrest or search each passenger? Is there probable cause to search each passenger's luggage, their autos parked at the airport and their residences? This article seeks the answer to the hypotheticals in sources ranging from the judiciary's own pronouncements on probable cause to linguistics, history mathematics and cognitive psychology.
Choosing Perspectives In Criminal Procedure, Ronald J. Bacigal
Choosing Perspectives In Criminal Procedure, Ronald J. Bacigal
Law Faculty Publications
In this Article, Professor Bacigal examines the Supreme Court's use of various perspectives in examining the reasonableness of searches and seizures. Although the Supreme Court purports to rely on a consistent method of constitutional analysis when rendering decisions on Fourth Amendment issues, the case law in this area indicates that the Court is influenced sometimes by the citizen's perspective, sometimes by the police officers' perspective, and sometimes by the perspective of the hypothesized reasonable person. After identifying the role of perspectives in a number of seminal Court decisions, Professor Bacigal discusses the benefits and limitations of the Court's reliance on …
Putting The People Back Into The Fourth Amendment, Ronald J. Bacigal
Putting The People Back Into The Fourth Amendment, Ronald J. Bacigal
Law Faculty Publications
This Article attempts to answer such questions by examining the evolution of search-and-seizure law in America. Although the structural nature of decision making embodied in the Bill of Rights has far-ranging implications for that entire document, I limit my consideration to the unique aspects of the Fourth Amendment. In doing so I have followed the suggestion that constitutional interpretation considers a threefold question: "Does the Constitution mean what it was meant to mean, or what it has come to mean, or what it ought to mean?" Part I examines the historical involvement of juries in search-and-seizure cases; Part II considers …
Dodging A Bullet, But Opening Old Wounds In Fourth Amendment Jurisprudence, Ronald J. Bacigal
Dodging A Bullet, But Opening Old Wounds In Fourth Amendment Jurisprudence, Ronald J. Bacigal
Law Faculty Publications
The Court began its opinion in Winston by "putting to one side the procedural protections of the warrant requirement. " The parties agreed that the defendant had received "a full measure of procedural protections"and that the state had met the "ordinary" standard of probable cause for a search. "Notwithstanding the existence of probable cause" and the state's full compliance with the procedures required by the warrant clause, the Court found that the reasonableness clause of the fourth amendment demands "a more substantial justification" than probable cause. The Court viewed this higher level of justification as a substantive requirement of the …
An Alternative Approach To The Good Faith Controversy, Ronald J. Bacigal
An Alternative Approach To The Good Faith Controversy, Ronald J. Bacigal
Law Faculty Publications
This Article examines the role of police motivation in all facets of fourth amendment jurisprudence and demonstrates that the Court has often considered good faith as one relevant but ill-defined factor in determining substantive aspects of the fourth amendment. The Article concludes that this ambiguous and flexible approach to substantive fourth amendment rights should be utilized when applying the remedy of exclusion.
The Fourth Amendment In Flux: The Rise And Fall Of Probable Cause, Ronald J. Bacigal
The Fourth Amendment In Flux: The Rise And Fall Of Probable Cause, Ronald J. Bacigal
Law Faculty Publications
This article will demonstrate the Supreme Court's inability to develop an objective methodology to derive and apply fourth amendment principles under either the traditional probable cause approach or the balancing approach. A detailed analysis of traditional probable cause will reveal that its premises are ultimately subjectively derived? This examination will also show that returning to traditional probable cause would necessitate resurrecting the unrealistic premise that an individual's privacy interest is always outweighed by the government's interest in searching if the authorities meet a static standard of probable cause. The article will then discuss the advent of the balancing approach and …