Fourth Amendment Commons^™

Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin

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As the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence …

Suspicionless Policing, Julian A. Cook

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The tragic death of Elijah McClain—a twenty-three-year-old, slightly built, unarmed African American male who was walking home along a sidewalk when he was accosted by three Aurora, Colorado police officers—epitomizes the problems with policing that have become a prominent topic of national conversation. Embedded within far too many police organizations is a culture that promotes aggressive investigative behaviors and a disregard for individual liberties. Incentivized by a Supreme Court that has, over the course of several decades, empowered the police with expansive powers, law enforcement organizations have often tested—and crossed—the constitutional limits of their investigative authorities. And too often it …

Policing Narrative, Tal Kastner

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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 narrative of Black …

Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf

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This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single …

A Genealogy Of Programmatic Stop And Frisk: A Discourse-To-Practice-Circuit, Frank Rudy Cooper

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President Trump has called for increased use of the recently predominant policing methodology known as programmatic stop and frisk. This Article contributes to the field by identifying, defining, and discussing five key components of the practice: (1) administratively dictated (2) pervasive Terry v. Ohio stops and frisks (3) aimed at crime prevention by means of (4) data-enhanced profiles of suspects that (5) target young racial minority men. Whereas some scholars see programmatic stop and frisk as solely the product of individual police officer bias, this Article argues for understanding how we arrived at specific police practices by analyzing three levels …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook

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On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Nuance, Technology, And The Fourth Amendment: A Response To Predictive Policing And Reasonable Suspicion, Fabio Arcila Jr.

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In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.

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

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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.

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

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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 …

Post-Racialism And Searches Incident To Arrest, Frank Rudy Cooper

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For 28 years the Court held that an officer's search incident to arrest powers automatically extended to the entire passenger compartment of a vehicle. In 2009, however, the Arizona v. Gant decision held that officers do not get to search a vehicle incident to arrest unless they satisfy (1) the Chimel v. California Court's requirement that the suspect has access to weapons or evanescent evidence therein or (2) the United States v. Rabinowitz Court's requirement that the officer reasonably believe evidence of the crime of arrest will be found therein. While many scholars read Gant as a triumph for civil …

Setting Us Up For Disaster: The Supreme Court's Decision In Terry V. Ohio, Thomas B. Mcaffee

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No abstract provided.

Suspicion And The Protection Of Fourth Amendment Values, Fabio Arcila Jr.

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Suspicion is perhaps the core foundational principle through which we seek to protect and vindicate Fourth Amendment values. Fourth Amendment law could not be clearer, and repeats over and over again, that it proceeds from a presumptive suspicion requirement. We are all so familiar with that proposition that we can easily incant it: a governmental search is presumptively unconstitutional unless supported by some threshold of prior suspicion. Though suspicion is thus a hallmark of Fourth Amendment black letter law, I come to critique it. I critique it because the presumptive suspicion requirement's provenance is historically questionable, both as a matter …

Surveillance And Identity Performance: Some Thoughts Inspired By Martin Luther King, Frank Rudy Cooper

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In this article, Professor Frank Cooper explores self-actualization, the process whereby people create their own identity by means of experimenting with different behaviors, in the context of Martin Luther King, Jr. and the FBI surveillance he was subjected to in the time leading up to his death. He argues that it is possible for people to live in an environment that is more or less alienating to the way in which they perform their identities. Performativity scholars such as Devon Carbado and Mitu Gulati say that people can have an internal sense of self that is distinct from the identity …

The Spirit Of 1968: Toward Abolishing Terry Doctrine, Frank Rudy Cooper

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In this essay, Professor Frank Rudy Cooper summarizes how the Terry opinion's refusal to apply the probable cause standard made Fourth Amendment doctrine more conservative. He then suggests that the result has gone largely unchallenged because whites have been willing to trade decreases in the civil liberties of blacks for perceived increases in crime control. Prof Cooper concludes by calling on us to consider returning to the spirit of the beginning of 1968 by abolishing Terry doctrine.

Cultural Context Matters: Terry's "Seesaw Effect", Frank Rudy Cooper

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This Article investigates why the enforcement of a given legal doctrine may vary with changes in the cultural context in which it is applied. It argues that officials apply the law along an "enforcement practices continuum" in accord with changes in the prevailing articulations of the meaning of cultural identity norms associating particular groups with crime.

Terry v. Ohio doctrine allows police officers to make "stops" and "frisks" of limited scope upon reasonable suspicion of crime rather than requiring the higher standard of probable cause. The Article contends the officer discretion resulting from this "scope continuum" approach permits cultural identity …

The Un-Balanced Fourth Amendment: A Cultural Study Of The Drug War, Racial Profiling And Arvizu, Frank Rudy Cooper

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In this Article, Professor Frank Rudy Cooper provides a cultural studies approach to the encoding and decoding of the drug war that will allow us to draw important conclusions about the effects of the drug war on the Court. In Part I of this Article, he describes how the field of cultural studies reads popular culture through the analytical tools of "encoding" and "decoding." In Part II, he analyzes why and how law enforcement has encoded the drug war as requiring increased prosecution of drug users and drug dealers. In Part III, he considers how the Court's decoding of law …

Warrantless Searches And Seizures, Mack Allen Player

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The fourth amendment to the Constitution has two basic clauses. The first, the reasonableness clause, protects the people against unreasonable searches and seizures. The second, the warrant clause, sets forth conditions under which a warrant may issue. Searches and seizures made pursuant to a warrant are, quite obviously, governed by the commands of the warrant clause. However, the effect of the warrant clause upon searches and seizures made without warrants is not clear from the amendment itself, and the Supreme Court has failed to develop a consistent interpretation of the proper role of that clause.