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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 2022 University of Arkansas at Little Rock William H. Bowen School of Law

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.


Catchall Policing And The Fourth Amendment, Nirej Sekhon 2022 Duke Law

Catchall Policing And The Fourth Amendment, Nirej Sekhon

Duke Law Journal Online

American police do a bit of everything. They direct traffic, resolve private disputes, help the sick and injured, and do animal control. Far less frequently than one might think, they make arrests. Americans reflexively call the police for troubles, big and small. The “catchall tradition” is shorthand for this melding of non-adversarial, public assistance with adversarial, crime-control functions. The catchall tradition means that civilians are exposed to the police’s coercive power as a condition of receiving police help. This Article contends that the catchall tradition is antithetical to constitutional police regulation. The Supreme Court has distinguished adversarial from non-adversarial ...


An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment And Protesting While Black, Karen J. Pita Loor 2022 Boston University School of Law

An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment And Protesting While Black, Karen J. Pita Loor

Michigan Law Review

Protesting is supposed to be revered in our democracy, considered “as American as apple pie” in our nation’s mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and “less than” lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, and approximately 78 percent of those ...


“Bang!”: Shotspotter Gunshot Detection Technology, Predictive Policing, And Measuring Terry’S Reach, Harvey Gee 2022 San Jose City Attorney’s Office

“Bang!”: Shotspotter Gunshot Detection Technology, Predictive Policing, And Measuring Terry’S Reach, Harvey Gee

University of Michigan Journal of Law Reform

ShotSpotter technology is a rapid identification and response system used in ninety American cities that is designed to detect gunshots and dispatch police. ShotSpotter is one of many powerful surveillance tools used by local police departments to purportedly help fight crime, but they often do so at the expense of infringing upon privacy rights and civil liberties. This Article expands the conversation about ShotSpotter technology considerably by examining the adjacent Fourth Amendment issues emanating from its use. For example, law enforcement increasingly relies on ShotSpotter to create reasonable suspicion where it does not exist. In practice, the use of ShotSpotter ...


Deprogramming Bias: Expanding The Exclusionary Rule To Pretextual Traffic Stop Using Data From Autonomous Vehicle And Drive-Assistance Technology, Joe Hillman 2022 University of Michigan Law School

Deprogramming Bias: Expanding The Exclusionary Rule To Pretextual Traffic Stop Using Data From Autonomous Vehicle And Drive-Assistance Technology, Joe Hillman

University of Michigan Journal of Law Reform

As autonomous vehicles become more commonplace and roads become safer, this new technology provides an opportunity for courts to reconsider the constitutional rationale of modern search and seizure law. The Supreme Court should allow drivers to use evidence of police officer conduct relative to their vehicle’s technological capabilities to argue that a traffic stop was pretextual, meaning they were stopped for reasons other than their supposed violation. Additionally, the Court should expand the exclusionary rule to forbid the use of evidence extracted after a pretextual stop. The Court should retain some exceptions to the expanded exclusionary rule, such as ...


Dna Dystopia: How The National Security Apparatus Could Map The Entire Genome Of America Without Violating The Fourth Amendment Or The Constitutional Right To Privacy, Elias Rios III 2022 Brooklyn Law School

Dna Dystopia: How The National Security Apparatus Could Map The Entire Genome Of America Without Violating The Fourth Amendment Or The Constitutional Right To Privacy, Elias Rios Iii

Brooklyn Law Review

Over the past decade, scientific advances have allowed genetic testing to become accessible to consumers. Direct-to-consumer (DTC) DNA testing companies can analyze your DNA sample so you can learn about your family’s origins or whether you are genetically predisposed to a specific disease or disorder. Consumers can then send these analyzed files to third-party databases that aggregate genetic data for specific purposes, like helping law enforcement solve cold cases. Recently, the Department of Defense alerted servicemembers that DTC DNA tests were a national security threat. Simply put, when the national security apparatus finds a threat, it proactively seeks to ...


Putting Together The Pieces: The Mosaic Theory And Fourth Amendment Jurisprudence Since Carpenter, Ben Vanston 2022 West Virginia University College of Law

Putting Together The Pieces: The Mosaic Theory And Fourth Amendment Jurisprudence Since Carpenter, Ben Vanston

West Virginia Law Review

No abstract provided.


Warrant Nullification, L. Joe Dunman 2022 Morehead State University

Warrant Nullification, L. Joe Dunman

West Virginia Law Review

Police officers execute thousands of search warrants in the United States every year, often looking for drugs in people's homes. Many search warrants are executed by militarized "dynamic entry" teams who violently conduct raids late at night with little or no warning, guns drawn. These raids have killed and injured hundreds of people nationwide-not just suspects but also officers and bystanders. Protests erupt in response, the community divides, and trust in institutions crumbles.

Legislative and executive policy can reduce the violence of search warrant executions, but could there also be a judicial option? This Article explores one such option ...


A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron 2022 University of Cincinnati College of Law

A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron

University of Cincinnati Law Review

No abstract provided.


Are Constitutional Rights Enough? An Empirical Assessment Of Racial Bias In Police Stops, Rohit Asirvatham, Michael D. Frakes 2022 Northwestern Pritzker School of Law

Are Constitutional Rights Enough? An Empirical Assessment Of Racial Bias In Police Stops, Rohit Asirvatham, Michael D. Frakes

Northwestern University Law Review

This Article empirically tests the conventional wisdom that a permissive constitutional standard bearing on pretextual traffic stops—such as the one announced by the Supreme Court in Whren v. United States—contributes to racial disparities in traffic stops. To gain empirical traction on this question, we look to state constitutional law. In particular, we consider a natural experiment afforded by changes in the State of Washington’s rules regarding traffic stops. Following Whren, the Washington Supreme Court first took a more restrictive stance than the U.S. Supreme Court, prohibiting pretextual stops by police officers, but later reversed course and ...


Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado 2022 Boston University School of Law

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 ...


The Computer Got It Wrong: Facial Recognition Technology And Establishing Probable Cause To Arrest, T.J. Benedict 2022 Washington and Lee University School of Law

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 ...


A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher 2022 Stanford Clinton and Zylpha Kilbride Clinton Research Professor, Northwestern University Pritzker School of Law

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 ...


Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion For Terry Stops Based On Vague Or Discrepant Suspect Descriptions, Caroline E. Lewis 2022 William & Mary Law School

Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion For Terry Stops Based On Vague Or Discrepant Suspect Descriptions, Caroline E. Lewis

William & Mary Law Review

In Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. The resulting “Terry stop” created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. The officer need only have “reasonable suspicion supported by articulable facts” based on the circumstances and the officer’s policing “experience that criminal activity may be afoot.” Reasonable suspicion is—by design—a broad standard, deferential to police officers’ judgment. Law enforcement ...


Another Katz Moment?: Privacy, Property, And A Dna Database, Claire Mena 2022 University of Michigan Law School

Another Katz Moment?: Privacy, Property, And A Dna Database, Claire Mena

University of Michigan Journal of Law Reform

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The understanding of these words seems to shift as new technologies emerge. As law enforcement’s arsenal of surveillance techniques has grown to include GPS tracking, cell phones, and cell site location information (CSLI), the Supreme Court has applied Fourth Amendment protections to these modern tools. Law enforcement continues to use one pervasive surveillance technique without limitations: the routine collection of DNA. In 2013, the Supreme Court in Maryland v. King held that law enforcement may ...


Administrative Investigations, Aram A. Gavoor, Steven A. Platt 2022 The George Washington University Law School

Administrative Investigations, Aram A. Gavoor, Steven A. Platt

Indiana Law Journal

This Article establishes the subject of federal administrative investigations as a new area of study in administrative law. While the literature has addressed investigations by specific agencies and congressional investigations, there is no general account for the trans-substantive constitutional value of administrative investigations. This Article provides such an account by exploring the positive law, agency behaviors, and constraints pertaining to this unresearched field. It concludes with some urgency that the Administrative Procedure Act of 1946—the statute that stands as a bill of rights for the Administrative State—does not serve to regulate administrative investigations and that Article III courts ...


Trauma: Community Of Color Exposure To The Criminal Justice System As An Adverse Childhood Experience, andré douglas pond cummings, Todd J. Clark, Caleb Gregory Conrad, Amy Dunn Johnson 2022 University of Cincinnati College of Law

Trauma: Community Of Color Exposure To The Criminal Justice System As An Adverse Childhood Experience, André Douglas Pond Cummings, Todd J. Clark, Caleb Gregory Conrad, Amy Dunn Johnson

University of Cincinnati Law Review

No abstract provided.


Health Choice Or Health Coercion? The Osha Emergency Temporary Standard Covid-19 Vaccination Mandates: Ax Or Vax, Savannah Snyder 2022 Liberty University

Health Choice Or Health Coercion? The Osha Emergency Temporary Standard Covid-19 Vaccination Mandates: Ax Or Vax, Savannah Snyder

Helm's School of Government Conference

No abstract provided.


Wrongfully Charged, Golden Gate University School of Law 2022 Golden Gate University School of Law

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 ...


The Problem Of Qualified Immunity In K-12 Schools, Sarah Smith 2022 University of Arkansas, Fayetteville

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 ...


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