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Self Incrimination And Cryptographic Keys, Gregory S. Sergienko 2018 Concordia University School of Law

Self Incrimination And Cryptographic Keys, Gregory S. Sergienko

Greg Sergienko

Modern cryptography can make it virtually impossible to decipher documents without the cryptographic key thus making the availability of the contents of those documents depend on the availability of the key. This article examines the Fourth and Fifth Amendments' protection against the compulsory production of the key and the scope of the Fifth Amendment immunity against compelled production. After analyzing these questions using prevailing Fourth and Fifth Amendment jurisprudence, I shall describe the advantages of a privacy-based approach in practical and constitutional terms. [excerpt]


Whren V. United States: An Abrupt End To The Debate Over Pretextual Stops, Brian J. O'Donnell 2018 University of Maine School of Law

Whren V. United States: An Abrupt End To The Debate Over Pretextual Stops, Brian J. O'Donnell

Maine Law Review

In Whren v. United States, the United States Supreme Court held that a traffic stop is reasonable under the Fourth Amendment if a police officer has probable cause to believe that a traffic violation has occurred, even if the stop is a pretext for the investigation of a more serious offense. The Court affirmed the convictions of Michael A. Whren and James L. Brown, who had been arrested on federal drug charges after Washington, D.C., police stopped Brown for minor traffic infractions. The Court's unanimous opinion, delivered by Justice Scalia, brought an end to a long-running debate over ...


Blank Slates, Matthew Tokson 2018 University of Utah S.J. Quinney College of Law

Blank Slates, Matthew Tokson

Boston College Law Review

Courts sometimes confront gaps in formal law where doctrinal sources like text, history, and precedent fail to offer guidance in resolving a particular case. When these gaps are narrow, judges can generally address them through analogical reasoning or intuition. But sometimes legal gaps are too substantial to be filled with one-off decisions, and judges are called upon to create whole legal tests without the benefit of formal guidance or constraint. Courts currently lack a theoretical framework for addressing these difficult situations. This Article analyzes these “legal blank slates” and provides a framework for addressing them. Blank slates are less common ...


A Man’S Home Is His Castle, But It Has A Secret Dungeon: Domestic Violence Victims Need An Amendment To Florida’S All-Party Consent Law, David K. Warren 2018 University of Florida Levin College of Law

A Man’S Home Is His Castle, But It Has A Secret Dungeon: Domestic Violence Victims Need An Amendment To Florida’S All-Party Consent Law, David K. Warren

Florida Law Review

Domestic violence is an epidemic that is occurring at alarming rates throughout the state of Florida and across the nation. Much of that abuse occurs behind closed doors inside the home where there are no witnesses. Because Florida law does not allow a person to record communications without the consent of everyone else involved, victims are forced to rely on uncorroborated verbal accusations when they report their abuse. Unfortunately, it is difficult to prosecute these cases because they turn into credibility contests where the abuser often has an unfair advantage and has learned how to manipulate the system. If the ...


Standing Under State Search And Seizure Provision: Why The Minnesota Supreme Court Should Have Rejected The Federal Standards And Instead Invoked Greater Protection Under Its Own Constitution In State V. Carter, Rebecca C. Garrett 2018 University of Maine School of Law

Standing Under State Search And Seizure Provision: Why The Minnesota Supreme Court Should Have Rejected The Federal Standards And Instead Invoked Greater Protection Under Its Own Constitution In State V. Carter, Rebecca C. Garrett

Maine Law Review

In State v. Carter, the Minnesota Supreme Court considered whether a criminal defendant had “standing” to challenge an alleged search under the Fourth Amendment and Article 1, Section 10 of the Minnesota Constitution. The defendant moved to suppress evidence obtained by a police officer who had peered in the window of an apartment where the defendant was participating in a drug-packaging operation with the apartment's leaseholder. A divided court held that the defendant had a legitimate expectation of privacy in the apartment. Therefore, the defendant had standing to challenge the legality of the police officer's observations pursuant to ...


Get Off My Porch: United States V. Carloss And The Escalating Dangers Of “Knock And Talks”, Skyler K. Sikes 2018 University of Oklahoma College of Law

Get Off My Porch: United States V. Carloss And The Escalating Dangers Of “Knock And Talks”, Skyler K. Sikes

Oklahoma Law Review

No abstract provided.


United States V. Carloss: Should The Police Act Like Good Neighbors?, Cole McLanahan 2018 University of Oklahoma College of Law

United States V. Carloss: Should The Police Act Like Good Neighbors?, Cole Mclanahan

Oklahoma Law Review

No abstract provided.


Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez 2017 New York University

Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information can be cause for “anxiety,” meriting constitutional protection, even if subsequent uses of the information are tightly restricted.  This change is significant.  While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing.
 
Beyond offering a careful reading of Birchfield, this Article has two goals.  First ...


Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson 2017 University of Oklahoma College of Law

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

Stephen E Henderson

We finally have a federal ‘test case.’  In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age.  The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher.  This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious. 
 
As for ambition, the Court must ...


Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu 2017 Washington and Lee University School of Law

Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu

Faculty Scholarship

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies.

A ...


The Pro Bono Collaborative Project Spotlight: Rwu Law Street Law: Teaching Teens About The Law And Inspiring Future Lawyers 11-16-2017, Roger Williams University School of Law 2017 Roger Williams University

The Pro Bono Collaborative Project Spotlight: Rwu Law Street Law: Teaching Teens About The Law And Inspiring Future Lawyers 11-16-2017, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.


The Next Step In Civil Asset Forfeiture Reform: Passing The Civil Asset Forfeiture Reform Act Of 2014, Daniel Reed 2017 The Catholic University of America, Columbus School of Law

The Next Step In Civil Asset Forfeiture Reform: Passing The Civil Asset Forfeiture Reform Act Of 2014, Daniel Reed

Catholic University Law Review

Civil asset forfeiture is an operation of legal fiction that enables the government to seize property without an underlying conviction of the property owner. Federal authorities bring thousands of civil asset forfeiture cases annually, often against the property of owners who have not been charged with a crime. Such cases can result in unjust outcomes and denials of due process to property owners. To address this controversy, Representative Tim Walberg proposed several reforms to federal civil asset forfeiture laws known as the Civil Asset Forfeiture Reform Act of 2014 (CAFRA 2014).

After discussing the history of civil asset forfeiture, this ...


The Fallacy Of A Colorblind Consent Search Doctrine, Beau C. Tremitiere 2017 Northwestern Pritzker School of Law

The Fallacy Of A Colorblind Consent Search Doctrine, Beau C. Tremitiere

Northwestern University Law Review

Most searches conducted by police officers are “consensual” and thus beyond the reach of the Fourth Amendment. However, such searches violate the Fourth Amendment when, under the totality of circumstances, consent appears to be a product of coercion—that is, when the consent was involuntary. In 1980, in Mendenhall v. United States, the Supreme Court identified race as a relevant factor courts should consider but failed to explain precisely why race was relevant. After decades of mistreatment and state-sanctioned violence, distrust of law enforcement was rampant in communities of color, and the Mendenhall Court correctly intuited (but failed to describe ...


Does The End Justify The Means? The Clumsy And Circuitous Logic Of Blood Test Admissibility In Criminal Prosecutions In State V. Cormier, Kyle T. MacDonald 2017 University of Maine School of Law

Does The End Justify The Means? The Clumsy And Circuitous Logic Of Blood Test Admissibility In Criminal Prosecutions In State V. Cormier, Kyle T. Macdonald

Maine Law Review

In State v. Cormier, the Maine Supreme Judicial Court, sitting as the Law Court, was asked to determine whether a Maine statute requiring law enforcement officers to test the blood of all drivers for intoxicants following a fatal motor vehicle collision violates the Fourth Amendment of the United States Constitution when the operation of the statute allows for the admission of those blood test results in a future criminal trial of the driver. In determining that the procedures of title 29-A, section 2522 of the Maine Revised Statutes are not violative of the Fourth Amendment, the Law Court effectively confirmed ...


The Supreme Court's Long And Perhaps Unnecessary Struggle To Find A Standard Of Culpability To Regulate The Federal Exclusionary Remedy For Fourth/Fourteenth Amendment Violations, Melvyn H. Zarr 2017 University of Maine School of Law

The Supreme Court's Long And Perhaps Unnecessary Struggle To Find A Standard Of Culpability To Regulate The Federal Exclusionary Remedy For Fourth/Fourteenth Amendment Violations, Melvyn H. Zarr

Maine Law Review

On January 14, 2009, the United States Supreme Court decided Herring v. United States. In Herring, the defendant moved to suppress evidence that he alleged was seized as a result of an arrest that violated the Fourth and Fourteenth Amendments to the U.S. Constitution. The Supreme Court approved the decision below to deny suppression of the evidence. The decision set off a flurry of speculation that the Fourth Amendment exclusionary rule would not see its 100th birthday in 2014. A headline in the New York Times of January 31 declared: “Supreme Court Edging Closer to Repeal of Evidence Ruling ...


Reflections On Forty Years Of Private Practice And Sustained Pro Bono Advocacy, Stephen H. Oleskey 2017 University of Maine School of Law

Reflections On Forty Years Of Private Practice And Sustained Pro Bono Advocacy, Stephen H. Oleskey

Maine Law Review

I am going to address two topics. The first is the one Judge Coffin asked me to address in October 2009, when I was invited to give the 2010 Coffin Lecture: how to combine the private practice of law with an active pro bono practice. The second topic is the one Dean Peter Pitegoff and I agreed to add: a brief discussion of legal developments in national security law since 9/11. My pro bono involvement in Guantanamo Habeas litigation began in 2004 and led directly to my interest in national security law and to my recognition of how difficult ...


The Prolonged Arm Of The Law: Fourth Amendment Principles, The Maynard Decision, And The Need For A New Warrant For Electronic Tracking, R. Reeve Wood III 2017 University of Maine School of Law

The Prolonged Arm Of The Law: Fourth Amendment Principles, The Maynard Decision, And The Need For A New Warrant For Electronic Tracking, R. Reeve Wood Iii

Maine Law Review

This article examines the decision in United States v. Maynard as well as the simultaneous emergence of a vocal set of magistrate judges advocating for Fourth Amendment protection for cell phone location information. It argues that, even if the Maynard rationale is widely adopted and the use of tracking devices is found to be a search, the Fourth Amendment principles of specificity and limited discretion on the part of government officers mean that the warrant frameworks currently in use will not provide adequate protection from the threat of government officers obtaining information for which they have not demonstrated a need ...


Litigating Police Misconduct: Does The Litigation Process Matter? Does It Work?, 2017 Northwestern Pritzker School of Law

Litigating Police Misconduct: Does The Litigation Process Matter? Does It Work?

Northwestern Journal of Law & Social Policy

No abstract provided.


Police In America: Ensuring Accountability And Mitigating Racial Bias Feat. Paul Butler, 2017 Northwestern Pritzker School of Law

Police In America: Ensuring Accountability And Mitigating Racial Bias Feat. Paul Butler

Northwestern Journal of Law & Social Policy

No abstract provided.


Fbi's Carnivore: Under The Fourth Amendment And The Usa Patriot Act, Scott Griner 2017 University of Oklahoma College of Law

Fbi's Carnivore: Under The Fourth Amendment And The Usa Patriot Act, Scott Griner

Oklahoma Journal of Law and Technology

No abstract provided.


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