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Full-Text Articles in Fourth Amendment

The Fourth Amendment And General Law, Daniel Epps, Danielle D'Onfro Jan 2023

The Fourth Amendment And General Law, Daniel Epps, Danielle D'Onfro

Scholarship@WashULaw

For decades, Fourth Amendment protections have turned on “reasonable expectations of privacy.” But a new era may be dawning. There is growing interest among judges and scholars in turning away from privacy toward property or positive law as the touchstone for Fourth Amendment protections. Yet many questions remain about how that approach should work, such as where judges should look for positive law and precisely what role positive law should play in Fourth Amendment analysis.

This Article answers those questions, and in so doing lays forth a new, comprehensive theory of the Fourth Amendment. We argue that courts should interpret …


Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang Jan 2023

Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang

Articles

Drawing cases from two related areas of law-fingerprint and DNA (deoxyribonucleic acid) data-this Article proposes a modified framework, built on the Balkin-Levinson emphasis on national politics: First, national politics understood as partisan rivalry cannot account for what I call doctrinal lock-in in this Article, where I will demonstrate that in different stages of American politics-the Lochner era, the New Deal era, and Civil Rights era-courts across the nation ruled predominantly in favor of public data collectors-state and federal law enforcement in fingerprint cases. From the 1990s, when DNA data became hot targets of law enforcement, the United States Supreme Court …


The Carpenter Test As A Transformation Of Fourth Amendment Law, Matthew Tokson Jan 2023

The Carpenter Test As A Transformation Of Fourth Amendment Law, Matthew Tokson

Utah Law Faculty Scholarship

For over fifty years, the Fourth Amendment’s scope has been largely dictated by the Katz test, which applies the Amendment’s protections only when the government has violated a person’s “reasonable expectation of privacy.” This vague standard is one of the most criticized doctrines in all of American law, and its lack of coherence has made Fourth Amendment search law notoriously confusing. Things have become even more complex following the Supreme Court’s landmark decision in Carpenter v. United States, which has spawned its own alternative test for determining the Fourth Amendment’s scope. The emerging Carpenter test looks to the revealing nature …


Are Police Officers Bayesians? Police Updating In Investigative Stops, Jeffrey A. Fagan, Lila J.E. Nojima Jan 2023

Are Police Officers Bayesians? Police Updating In Investigative Stops, Jeffrey A. Fagan, Lila J.E. Nojima

Faculty Scholarship

Theories of rational behavior assume that actors make decisions where the benefits of their acts exceed their costs or losses. If those expected costs and benefits change over time, behavior will change accordingly as actors learn and internalize the parameters of success and failure. In the context of proactive policing, police stops that achieve any of several goals — constitutional compliance, stops that lead to “good” arrests or summonses, stops that lead to seizures of weapons, drugs, or other contraband, or stops that produce good will and citizen cooperation — should signal to officers the features of a stop that …


Scanning Iphones To Save Children: Apple’S On-Device Hashing Algorithm Should Survive A Fourth Amendment Challenge, Timothy Gernand Dec 2022

Scanning Iphones To Save Children: Apple’S On-Device Hashing Algorithm Should Survive A Fourth Amendment Challenge, Timothy Gernand

Dickinson Law Review (2017-Present)

When Apple announced it would combat the growth of child sexual abuse material (CSAM) on its platform by scanning all its users’ devices without their consent, many of its loyal customers felt betrayed. With tech companies such as Google and Facebook arranging their business models around selling their customers’ personal information, Apple customers saw the company’s focus on privacy as a refreshing alternative. However, as Apple itself privately acknowledged, this emphasis on privacy had led to it becoming a haven for CSAM. Despite the reputational damage it would incur with its customers, Apple resolved to confront CSAM on its platform …


The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker Oct 2022

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker

Northwestern University Law Review

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. …


Legal Implications Of A Ubiquitous Metaverse And A Web3 Future, Jon M. Garon Sep 2022

Legal Implications Of A Ubiquitous Metaverse And A Web3 Future, Jon M. Garon

Marquette Law Review

The metaverse is understood to be an immersive virtual world serving as the locus for all forms of work, education, and entertainment experiences. Depicted in books, movies, and games, the metaverse has the potential not just to supplement real-world experiences but to substantially supplant them. This Article explores the rapid emergence and evolution of the Web3 technologies at the heart of the metaverse movement. Web3 itself is a paradigmatic shift in internet commerce.


Criminal Procedure—Technology In The Modern Era: The Implications Of Carpenter V. United States And The Limits Of The Third-Party Doctrine As To Cell Phone Data Gathered Through Real-Time Tracking, Stingrays, And Cell Tower Dumps, Deepali Lal Jun 2022

Criminal Procedure—Technology In The Modern Era: The Implications Of Carpenter V. United States And The Limits Of The Third-Party Doctrine As To Cell Phone Data Gathered Through Real-Time Tracking, Stingrays, And Cell Tower Dumps, Deepali Lal

University of Arkansas at Little Rock Law Review

No abstract provided.


Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado Apr 2022

Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …


A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher Apr 2022

A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher

Notre Dame Law Review

Today, information is shared almost constantly. People share their DNA to track their ancestry or for individualized health information; they instruct Alexa to purchase products or provide directions; and, now more than ever, they use videoconferencing technology in their homes. According to the third-party doctrine, the government can access all such information without a warrant or without infringing on Fourth Amendment privacy protections. This exposure of vast amounts of highly personal data to government intrusion is permissible because the Supreme Court has interpreted the third-party doctrine as a per se rule. However, that interpretation rests on an improper understanding of …


The Computer Got It Wrong: Facial Recognition Technology And Establishing Probable Cause To Arrest, T.J. Benedict Apr 2022

The Computer Got It Wrong: Facial Recognition Technology And Establishing Probable Cause To Arrest, T.J. Benedict

Washington and Lee Law Review

Facial recognition technology (FRT) is a popular tool among police, who use it to identify suspects using photographs or still-images from videos. The technology is far from perfect. Recent studies highlight that many FRT systems are less effective at identifying people of color, women, older people, and children. These race, gender, and age biases arise because FRT is often “trained” using non-diverse faces. As a result, police have wrongfully arrested Black men based on mistaken FRT identifications. This Note explores the intersection of facial recognition technology and probable cause to arrest.

Courts rarely, if ever, examine FRT’s role in establishing …


Wrongfully Charged, Golden Gate University School Of Law Mar 2022

Wrongfully Charged, Golden Gate University School Of Law

Golden Gate University Race, Gender, Sexuality and Social Justice Law Journal

On January 10, 2020, a San Francisco Superior Court judge, at the request of a San Francisco Police officer, issued an arrest warrant in connection with a residential burglary. Mot. Suppress Evid. Off’d Against Def. Prelim. Hr’g, 6:1-2. The warrant listed suspects to be arrested and described a residence in Oakland that was to be searched. Id. at 3:5-13. The San Francisco Police Department sent a special operations unit to execute the warrant. Id. at 10:13-22. When the officers arrived at the house, they found the suspect as well as other individuals in the house.

One of those individuals was …


The Problem Of Qualified Immunity In K-12 Schools, Sarah Smith Feb 2022

The Problem Of Qualified Immunity In K-12 Schools, Sarah Smith

Arkansas Law Review

When thirteen-year-old Savana Redding arrived at school one autumn day in 2003, she was not expecting to be pulled out of her math class and strip searched. But, that is exactly what happened after the assistant principal suspected her of possessing and distributing “prescription-strength ibuprofen” and “over-the-counter. . .naproxen” after receiving information from another student. After Savana consented to a search of her backpack and other belongings—a search which turned up no evidence of drug possession—the assistant principal asked the school nurse and administrative assistant to search Savana’s clothes. To do this, the school officials asked Savana “to remove her …


Tech And Authoritarianism: How The People’S Republic Of China Is Using Data To Control Hong Kong And Why The U.S. Is Vulnerable, Bryce Neary Jan 2022

Tech And Authoritarianism: How The People’S Republic Of China Is Using Data To Control Hong Kong And Why The U.S. Is Vulnerable, Bryce Neary

Seattle Journal of Technology, Environmental & Innovation Law

The aim of this article is to analyze and compare current events in the People's Republic of China and the United States to discuss the moral dilemmas that arise when establishing the boundary between national security interests and individual privacy rights. As we continue to intertwine our lives with technology, it has become increasingly important to establish clear privacy rights. The question then becomes: at what point should individuals sacrifice their rights for what the government considers the "greater good" of the country?

Further, this article analyzes the development of U.S. privacy law and its relationship to national security, technology, …


A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher Jan 2022

A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher

Faculty Articles

Today, information is shared almost constantly. People share their DNA to track their ancestry or for individualized health information; they instruct Alexa to purchase products or provide directions; and, now more than ever, they use videoconferencing technology in their homes. According to the third-party doctrine, the government can access all such information without a warrant or without infringing on Fourth Amendment privacy protections. This exposure of vast amounts of highly personal data to government intrusion is permissible because the Supreme Court has interpreted the third-party doctrine as a per se rule. However, that interpretation rests on an improper understanding of …


Facebook, Crime Prevention, And The Scope Of The Private Search Post-Carpenter, Connor M. Correll Jan 2022

Facebook, Crime Prevention, And The Scope Of The Private Search Post-Carpenter, Connor M. Correll

Georgia Law Review

The Fourth Amendment of the U.S. Constitution protects people “against unreasonable searches and seizures.” The private search doctrine provides a notable exception to the Fourth Amendment, providing that the government may reconstruct a search previously performed by a private party without first obtaining a warrant. The U.S. Supreme Court developed the private search doctrine prior to the advent of the internet; however, modern technology has changed the way that individuals live. What was once done entirely in private is now done alongside ever-present third parties, such as cell phones and virtual assistants.

Facebook and other social media sites complicate Fourth …


Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan Jan 2022

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

Georgia Law Review

The Supreme Court has long deprived immigrants of the full protection of substantive constitutional rights, including the right to free speech, leaving undocumented immigrants exposed to detention and deportation if they earn the government’s ire through political speech. The best remedy for this would be for the Supreme Court to reconsider its approach. This Essay offers an interim alternative borrowed from an analogous problem that arises under the Fourth Amendment. Under the Constitution, the Supreme Court has indicated that illegally obtained evidence may be suppressed in a removal proceeding only if the Fourth Amendment violation was “egregious.” Yet, some circuit …


Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin Jan 2022

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

Scholarly Works

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 …


Equality In The Streets: Using Proportionality Analysis To Regulate Street Policing, Christopher Slobogin Jan 2022

Equality In The Streets: Using Proportionality Analysis To Regulate Street Policing, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The racially disparate impact and individual and collective costs of stop and frisk, misdemeanor arrests, and pretextual traffic stops have been well documented. Less widely noticed is the contrast between Supreme Court case law permitting these practices and the Court's recent tendency to strictly regulate technologically enhanced searches that occur outside the street policing setting and that--coincidentally or not--happen to be more likely to affect the middle class. If, as the Court has indicated, electronic tracking and searches of digital records require probable cause that evidence of crime will be found, stops and frisks should also require probable cause that …


Fourth Amendment Privacy In Public: A Fundamental Theory With Application To Location Tracking, Jordan Wallace-Wolf Jan 2022

Fourth Amendment Privacy In Public: A Fundamental Theory With Application To Location Tracking, Jordan Wallace-Wolf

Faculty Scholarship

When we walk out our front door, we are in public and other people may look at us. But intuitively, we don’t open ourselves up to unlimited scrutiny just by going outside. We retain some privacy, even in public. What is the source of this residual public-privacy, and how should the law recognize it without degrading the open character of public space?

The answer given by commentators, and most recently by the Supreme Court in Carpenter v. U.S., comes in the form of two related claims. The first is the chilling theory of the Fourth Amendment. According to this idea, …


Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti Jan 2022

Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti

Articles by Maurer Faculty

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.

Such an approach presupposes that property law is not itself circular. If …


Telephone Pole Cameras Under Fourth Amendment Law, Matthew Tokson Jan 2022

Telephone Pole Cameras Under Fourth Amendment Law, Matthew Tokson

Utah Law Faculty Scholarship

In a series of recent cases, police officers have mounted sophisticated surveillance cameras on telephone poles and pointed them at the homes of people suspected of a crime. These cameras often operate for months or even years without judicial oversight, collecting vast quantities of video footage on suspects and their activities near the home. Pole camera surveillance raises important Fourth Amendment questions that have divided courts and puzzled scholars.

These questions are complicated because Fourth Amendment law is complicated. This is especially the case today as Fourth Amendment law is in a transitional phase, caught between older and newer paradigms …


The New Bailments, Danielle D'Onfro Jan 2022

The New Bailments, Danielle D'Onfro

Scholarship@WashULaw

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …


Smart Meters As A Catalyst For Privacy Law, Matthew Tokson Jan 2022

Smart Meters As A Catalyst For Privacy Law, Matthew Tokson

Utah Law Faculty Scholarship

Smart utility meters raise several puzzling legal questions—and answering them can help point the way toward the future of Fourth Amendment and civil privacy law. This forum essay addresses two such issues: use restrictions on collected data, and voluntary data disclosure.

First, more than any other current technology, smart meters compel the development of use restrictions on collected data. The benefits of smart meters are potentially enormous, such that categorically prohibiting public utilities from collecting smart meter data is likely beyond the pale. Yet allowing law enforcement agents to obtain detailed or intimate data about the home without a warrant …


Girls, Assaulted, India Thusi Jan 2022

Girls, Assaulted, India Thusi

Articles by Maurer Faculty

Girls who are incarcerated share a common trait: They have often experienced multiple forms of sexual assault, at the hands of those close to them and at the hands of the state. The #MeToo movement has exposed how powerful people and institutions have facilitated pervasive sexual violence. However, there has been little attention paid to the ways that incarceration perpetuates sexual exploitation. This Article focuses on incarcerated girls and argues that the state routinely sexually assaults girls by mandating invasive, nonconsensual searches. Unwanted touching and display of private parts are common features of life before and after incarceration—from the sexual …


A New Report Of Entick V. Carrington (1765), Christian Burset, T. T. Arvind Jan 2022

A New Report Of Entick V. Carrington (1765), Christian Burset, T. T. Arvind

Journal Articles

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation. For more than 250 years, judges and commentators have read that case for guidance about the rule of law, executive authority, and the original meaning of the Fourth and Fifth Amendments. But we have been reading a flawed version. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, and how this new discovery challenges prevailing assumptions about …


Alexa Hears With Her Little Ears—But Does She Have The Privilege?, Lauren Chlouber Howell Oct 2021

Alexa Hears With Her Little Ears—But Does She Have The Privilege?, Lauren Chlouber Howell

St. Mary's Law Journal

Abstract forthcoming.


Constitutional Law—Fourth Amendment Search And Seizure—Online Schools During A Pandemic: Fourth Amendment Implications When The State Requires Your Child To Turn On The Camera And Microphone Inside Your Home, Conan N. Becknell Sep 2021

Constitutional Law—Fourth Amendment Search And Seizure—Online Schools During A Pandemic: Fourth Amendment Implications When The State Requires Your Child To Turn On The Camera And Microphone Inside Your Home, Conan N. Becknell

University of Arkansas at Little Rock Law Review

No abstract provided.


The Aftermath Of Carpenter: An Empirical Study Of Fourth Amendment Law, 2018-2021, Matthew Tokson Sep 2021

The Aftermath Of Carpenter: An Empirical Study Of Fourth Amendment Law, 2018-2021, Matthew Tokson

Utah Law Faculty Scholarship

Fourth Amendment law is in flux. The Supreme Court recently established, in the landmark case Carpenter v. United States, that individuals can retain Fourth Amendment rights in information they disclose to a third party. In the internet era, this ruling has the potential to extend privacy protections to a huge variety of sensitive digital information. But Carpenter is also notoriously vague. Scholars and lower courts have tried to guess at what the law of Fourth Amendment searches will be going forward—and have reached different, contradictory conclusions.

This Article reports the results of a large-scale empirical study of the impact of …


Restoring Causality In Attenuation: Establishing The Breadth Of A Fourth Amendment Violation, Bryan H. Ward Sep 2021

Restoring Causality In Attenuation: Establishing The Breadth Of A Fourth Amendment Violation, Bryan H. Ward

West Virginia Law Review

When the police violate a suspect’s Fourth Amendment rights, what often follows is the discovery of incriminating evidence. Sometimes the evidence is discovered directly after the Fourth Amendment violation. In other situations, the evidence comes by a more indirect route and may occur long after the original Fourth Amendment violation. Courts struggle when trying to decide if the discovery of this indirectly obtained evidence was caused by the police misconduct. This causal question is important because causality acts as a limiting principle when deciding when to apply the exclusionary rule. A basic view of the exclusionary rule suggests that evidence …