Fourth Amendment Fairness, 2018 UCLA School of Law
Fourth Amendment Fairness, Richard M. Re
Michigan Law Review
Fourth Amendment doctrine is attentive to a wide range of interests, including security, informational privacy, and dignity. How should courts reconcile these competing concerns when deciding which searches and seizures are “unreasonable”? Current doctrine typically answers this question by pointing to interest aggregation: the various interests at stake are added up, placed on figurative scales, and compared, with the goal of promoting overall social welfare. But interest aggregation is disconnected from many settled doctrinal rules and leads to results that are unfair for individuals. The main alternative is originalism; but historical sources themselves suggest that the Fourth Amendment calls for ...
The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An Empirical Assessment Of Graham V. Connor, 2018 Northwestern Pritzker School of Law
The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An Empirical Assessment Of Graham V. Connor, Osagie K. Obasogie, Zachary Newman
Northwestern University Law Review
Graham v. Connor established the modern constitutional landscape for police excessive force claims. The Supreme Court not only refined an objective reasonableness test to describe the constitutional standard, but also held that the Fourth Amendment is the sole avenue for courts to adjudicate claims that police violated a person’s constitutional rights in using force. In this Essay, we ask: What impact did this decision have on the nature of police excessive force claims in federal courts? To address this, we engaged in a qualitative examination of 500 federal cases (250 in the twenty-six years before Graham and 250 in ...
The Exigencies Of Drunk Driving: Cripps V. State And The Issues With Taking Drivers' Blood Without A Warrant, 2018 Boston College Law School
The Exigencies Of Drunk Driving: Cripps V. State And The Issues With Taking Drivers' Blood Without A Warrant, Timothy Andrea
Boston College Law Review
Few of the government’s investigatory techniques implicate individual privacy concerns more than the taking and testing of a suspect’s blood. These blood draws are a common tool used to fight drunk driving. In 2013, in Missouri v. McNeely, the U.S. Supreme Court reiterated the need for case-by-case review when considering whether exigent circumstances justify warrantless blood testing of drunk driving suspects. An Oklahoma statute takes a different approach by categorically abdicating the warrant requirement and authorizing law enforcement to draw blood from any driver involved in an accident that results in serious bodily injury. In 2016, in ...
“You’Re Not Gonna Reach My Telephone”— The Resurgence Of The Fourth Amendment’S Particularity Requirement, 2018 Southern Methodist University
“You’Re Not Gonna Reach My Telephone”— The Resurgence Of The Fourth Amendment’S Particularity Requirement, Tammie Beassie Banko
SMU Law Review
No abstract provided.
Bounded By The Constitution: Resolving The Private Search Doctrine Circuit Split, 2018 Chicago-Kent College of Law
Bounded By The Constitution: Resolving The Private Search Doctrine Circuit Split, Mark Kifarkis
Concordia Law Review
This Article analyzes the private search doctrine exception to the Fourth Amendment and the exception's application to smart phones and computers. The private search doctrine allows governmental authorities to replicate a private individual's search without obtaining a warrant. This Article proposes a standard for court's to use to resolve the circuit split on how to apply the exception to today's technology. Presently, there are two standards used by courts. The Article names one standard as the "boundless search approach" that is used by the Fifth and Seventh Circuits. The Article names the other standard as "bounded ...
A Tale Of Two Clauses: Search And Seizure, Establishment Of Religion, And Constitutional Reason, 2018 College of William & Mary Law School
A Tale Of Two Clauses: Search And Seizure, Establishment Of Religion, And Constitutional Reason, Perry Dane
William & Mary Bill of Rights Journal
This Article dissects two developments in widely separate areas of American constitutional law—the “reasonable expectation of privacy” test for the Fourth Amendment’s Search and Seizure Clause and the “endorsement” test for the First Amendment’s Establishment Clause. These two stories might seem worlds apart, and they have not previously been systematically examined together. Nevertheless, the Article argues that they have in common at least three important symptoms of our legal culture’s deep malaise. These three phenomena occur in other contexts, too, but they appear with special clarity and a stark cumulative force in the two stories on ...
Is Your Smartphone Conversation Private? The Stingray Device’S Impact On Privacy In States, 2018 The Catholic University of America, Columbus School of Law
Is Your Smartphone Conversation Private? The Stingray Device’S Impact On Privacy In States, Katherine M. Sullivan
Catholic University Law Review
“Where are you” is a common question to receive on your cellphone, but it is up to you whether or not to respond with an answer. No longer does this question need to be asked due to advancements in surveillance technology. When pinpointing a criminal suspect, the question can be answered by local and state agencies, without the person of interest knowing, by using a StingRay device. The main question to be asked is does the conduct of locating a criminal suspect’s exact location without a warrant, violate an individual’s Fourth Amendment Constitutional right to be free from ...
Hernandez V. Mesa: Preserving The Zone Of Constitutional Uncertainty At The Border, 2018 University of Maryland Francis King Carey School of Law
Hernandez V. Mesa: Preserving The Zone Of Constitutional Uncertainty At The Border, Alexandra A. Botsaris
Maryland Law Review
No abstract provided.
Sniffing Out The Fourth Amendment: United States V. Place-Dog Sniffs-Ten Years Later, 2018 University of Maine School of Law
Sniffing Out The Fourth Amendment: United States V. Place-Dog Sniffs-Ten Years Later, Hope Walker Hall
Maine Law Review
In the endless and seemingly futile government war against drugs, protections afforded by the Fourth Amendment of the United States Constitution may have fallen by the wayside as courts struggle to deal with drug offenders. The compelling government interest in controlling the influx of drugs all too often results in a judicial attitude that the ends justify the means. Judges can be reluctant to exclude evidence of drugs found in an unlawful search pursuant to the exclusionary rule, which provides that illegally obtained evidence may not be used at trial. The exclusion of drugs as evidence in drug cases often ...
Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, 2018 Indiana University Maurer School of Law
Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell
Georgia State University Law Review
The well-publicized deaths of several African-Americans—Tamir Rice, Philando Castile, and Alton Sterling among others—at the hands of police stem from tragic interactions predicated upon well-understood practices analyzed by police scholars since the 1950s. The symbolic assailant, a construct created by police scholar Jerome Skolnick in the mid-1960s to identify persons whose behavior and characteristics the police view as threatening, is especially relevant to contemporary policing. This Article explores the societal roots of the creation of a Black symbolic assailant in contemporary American policing.
The construction of African-American men as symbolic assailants is one of the most important factors ...
Implications Of The Private Search Doctrine In A Digital Age: Advocating For Limitations On Warrantless Searches Through Adoption Of The Virtual File Approach, Brianna M. Espeland
Idaho Law Review
No abstract provided.
Lack Of “Purposefulness” & “Flagrancy” Or Simply Turning A Blind Eye To The Current State Of Affairs?: The Need For Statistical Data, 2018 Golden Gate University School of Law
Lack Of “Purposefulness” & “Flagrancy” Or Simply Turning A Blind Eye To The Current State Of Affairs?: The Need For Statistical Data, Renei Caballes
Golden Gate University Law Review
This Comment argues that the Court misapplied the attenuation doctrine in Strieff, specifically in its application and interpretation of the language “purposeful and flagrant” and explores the possible implications of this decision. First, Section I explains the Fourth Amendment and the basic principles of law regarding searches and seizures, including the exclusionary rule and attenuation doctrine. Then, Section II examines the circuit court split prior to Utah v. Strieff and how each circuit interpreted the language “purposeful and flagrant.” Finally, Section III analyzes the issues with the Supreme Court’s interpretation of “purposeful and flagrant” in Utah v. Strieff and ...
Steering (Or Not) Through The Social And Legal Implications Of Autonomous Vehicles, 2018 Pepperdine University
Steering (Or Not) Through The Social And Legal Implications Of Autonomous Vehicles, Melissa L. Griffin
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
These Walls Can Talk! Securing Digital Privacy In The Smart Home Under The Fourth Amendment, Stefan Ducich
Duke Law & Technology Review
Privacy law in the United States has not kept pace with the realities of technological development, nor the growing reliance on the Internet of Things (IoT). As of now, the law has not adequately secured the “smart” home from intrusion by the state, and the Supreme Court further eroded digital privacy by conflating the common law concepts of trespass and exclusion in United States v. Jones. This article argues that the Court must correct this misstep by explicitly recognizing the method by which the Founding Fathers sought to “secure” houses and effects under the Fourth Amendment. Namely, the Court must ...
“A Search Is A Search”: Scanning A Credit, Debit, Or Gift Card Is A Search Under The Fourth Amendment, 2018 Boston College Law School
“A Search Is A Search”: Scanning A Credit, Debit, Or Gift Card Is A Search Under The Fourth Amendment, John A. Leblanc
Boston College Law Review
On May 18, 2017, the U.S. Court of Appeals for the First Circuit, in United States v. Hillaire, joined the Fifth, Sixth, and Eighth circuits in holding that the government’s act of scanning the magnetic stripes of lawfully seized credit, debit, or gift cards to access the information encoded therein is not a search within the meaning of the Fourth Amendment. In each case, the courts concluded that an individual is precluded from claiming a reasonable expectation of privacy in the electronic information encoded on a card’s magnetic stripe. This Note provides an overview of how Fourth ...
Policing, Technology, And Doctrinal Assists, 2018 University of Florida Levin College of Law
Policing, Technology, And Doctrinal Assists, Bennett Capers
Florida Law Review
Sounding the alarm about technology, policing, and privacy has become an almost daily occurrence. We are told that the government’s use of technology as a surveillance tool is an “insidious assault on our freedom.” That it is “nearly impossible to live today without generating thousands of records about what we watch, read, buy and do—and the government has access to them.” The message is clear. Big Brother is watching. And we should be afraid.
But the police use of technology, or what this Article terms “techno-policing,” does not have to be dystopian. This Article challenges conventional thinking and ...
Excessive Force, Police Dogs, And The Fourth Amendment In The Ninth Circuit: The Use Of Summary Judgement In Lowry V. City Of San Diego, Natasha Dobrott
Boston College Law Review
On June 6, 2017, in Lowry v. City of San Diego, the U.S. Court of Appeals for the Ninth Circuit sitting en banc upheld a district court’s grant of summary judgment, dismissing a claim under 42 U.S.C. § 1983 for use of excessive force in violation of the Fourth Amendment to the U.S. Constitution, in the context of “bite and hold” training for police dogs. This Comment argues that although the use of force in Lowry may have been reasonable, the court was incorrect in deciding this question as a matter of law. The fact-intensive objective ...
Self Incrimination And Cryptographic Keys, 2018 Concordia University School of Law
Self Incrimination And Cryptographic Keys, Gregory S. 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, 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 ...
What Caused The 2016 Chicago Homicide Spike? An Empirical Examination Of The 'Aclu Effect' And The Role Of Stop And Frisks In Preventing Gun Violence, 2018 S.J. Quinney College of Law, University of Utah
What Caused The 2016 Chicago Homicide Spike? An Empirical Examination Of The 'Aclu Effect' And The Role Of Stop And Frisks In Preventing Gun Violence, Paul Cassell, Richard Fowles
Utah Law Faculty Scholarship
Homicides increased dramatically in Chicago in 2016. In 2015, 480 Chicago residents were killed. The next year, 754 were killed–274 more homicide victims, tragically producing an extraordinary 58% increase in a single year. This article attempts to unravel what happened.
This article provides empirical evidence that the reduction in stop and frisks by the Chicago Police Department beginning around December 2015 was responsible for the homicide spike that started immediately thereafter. The sharp decline in the number of stop and frisks is a strong candidate for the causal factor, particularly since the timing of the homicide spike so perfectly ...