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Fourth Amendment Remedies As Rights: The Warrant Requirement, David C. Gray 2016 University of Maryland School of Law

Fourth Amendment Remedies As Rights: The Warrant Requirement, David C. Gray

David C. Gray

The constitutional status of the warrant requirement is hotly debated. Critics argue that neither the text nor history of the Fourth Amendment support a warrant requirement. Also questioned is the warrant requirement’s ability to protect Fourth Amendment interests. Perhaps in response to these concerns, the Court has steadily degraded the warrant requirement through a series of widening exceptions. The result is an unsatisfying jurisprudence that fails on both conceptual and practical grounds.

These debates have gained new salience with the emergence of modern surveillance technologies such as stingrays, GPS tracking, drones, and Big Data. Although a majority of the ...


Riley V. California And The Stickiness Principle, Steven I. Friedland 2016 Duke Law

Riley V. California And The Stickiness Principle, Steven I. Friedland

Duke Law & Technology Review

In Fourth Amendment decisions, different concepts, facts and assumptions about reality are often tethered together by vocabulary and fact, creating a ‘Stickiness Principle.’ In particular, form and function historically were considered indistinguishable, not as separate factors. For example, “containers” carried things, “watches” told time, and “phones” were used to make voice calls. Advancing technology, though, began to fracture this identity and the broader Stickiness Principle. In June 2014, Riley v. California and its companion case, United States v. Wurie, offered the Supreme Court an opportunity to begin untethering form and function and dismantling the Stickiness Principle. Riley presented the question ...


Teaching Criminal Procedure: Why Socrates Would Use Youtube, Stephen Henderson, Joseph Thai 2015 University of Oklahoma College of Law

Teaching Criminal Procedure: Why Socrates Would Use Youtube, Stephen Henderson, Joseph Thai

Stephen E Henderson

In this invited contribution to the Law Journal’s annual teaching volume, we pay some homage to the great philosopher whose spirit allegedly guides our classrooms, but in service of two concrete goals. One, we employ dialogue to describe the “nuts and bolts” of teaching criminal procedure, most of which are equally relevant to any doctrinal law school course (including course description, office hours, seating charts and attendance, class decorum and recording, student participation, laptops, textbooks, class preparation and presentation, and exams). Two, we explain the benefits of using multimedia in the classroom, including a few of the many modules ...


Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen Henderson 2015 University of Oklahoma College of Law

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen Henderson

Stephen E Henderson

When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those records not only store our past, but thanks to data mining and big data, in many circumstances they are eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully ...


Submarine Cables, Cybersecurity And International Law: An Intersectional Analysis, Tara Davenport 2015 Yale Law School

Submarine Cables, Cybersecurity And International Law: An Intersectional Analysis, Tara Davenport

Catholic University Journal of Law and Technology

No abstract provided.


Neuro Lie Detection And Mental Privacy, Madison Kilbride, Jason Iuliano 2015 University of Maryland Francis King Carey School of Law

Neuro Lie Detection And Mental Privacy, Madison Kilbride, Jason Iuliano

Maryland Law Review

New technologies inevitably raise novel legal questions. This is particularly true of technologies, such as neuro lie detection, that offer new ways to investigate crime. Recently, a number of scholars have asked whether neuro lie detection testing is constitutional. So far, the debate has focused on the Fifth Amendment—specifically whether evidence gathered through neuro lie detection is constitutionally admissible because it is “physical” in nature or inadmissible because it is “testimonial” in nature. Under current Supreme Court doctrine, this Fifth Amendment debate is intractable. However, the more fundamental question of whether the government can compel individuals to undergo a ...


Foreword: Private And Public Revisited Once Again, Mark A. Graber 2015 University of Maryland Francis King Carey School of Law

Foreword: Private And Public Revisited Once Again, Mark A. Graber

Maryland Law Review

No abstract provided.


Privacy At 50: The Bedroom, The Courtroom, And The Spaces In Between, Judith A. Baer 2015 University of Maryland Francis King Carey School of Law

Privacy At 50: The Bedroom, The Courtroom, And The Spaces In Between, Judith A. Baer

Maryland Law Review

No abstract provided.


Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff 2015 University of Maryland Francis King Carey School of Law

Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff

Maryland Law Review

No abstract provided.


The Right To Same-Sex Marriage: Formalism, Realism, And Social Change In Lawrence (2003), Windsor (2013), & Obergefell (2015), Ronald Kahn 2015 University of Maryland Francis King Carey School of Law

The Right To Same-Sex Marriage: Formalism, Realism, And Social Change In Lawrence (2003), Windsor (2013), & Obergefell (2015), Ronald Kahn

Maryland Law Review

No abstract provided.


Stepping On (Or Over) The Constitution’S Line: Evaluating Fisa Section 702 In A World Of Changing “Reasonableness” Under The Fourth Amendment, Patrick Walsh 2015 The U.S. Army Judge Advocate General's Legal Center and School

Stepping On (Or Over) The Constitution’S Line: Evaluating Fisa Section 702 In A World Of Changing “Reasonableness” Under The Fourth Amendment, Patrick Walsh

Patrick Walsh

The Foreign Intelligence Surveillance Act (FISA) Section 702 program collects vast amounts of information—some on citizens located inside the United States—without requiring a judicially authorized search warrant. Over one hundred federal terrorism prosecutions have involved evidence gathered through Section 702 warrantless interceptions. However, this program may violate the Constitution’s Fourth Amendment prohibition on unreasonable searches. Consideration of Section 702’s use is timely, as federal courts have signaled that they are ready and willing to rule on its constitutionality.
Federal courts and government oversight panels, relying on jurisprudence established in prior foreign intelligence cases, have narrowly approved ...


A Linguistic Analysis Of The Meanings Of "Search" In The Fourth Amendment: A Search For Common Sense, Clark Cunningham 2015 Georgia State University College of Law

A Linguistic Analysis Of The Meanings Of "Search" In The Fourth Amendment: A Search For Common Sense, Clark Cunningham

Clark D. Cunningham

This article offers a new technique for analyzing and evaluating competing interpretations of a legal text and applies that technique to one of the most debated questions of modern constitutional interpretation: the meaning of "searches" in the first clause of the fourth amendment. This Technique is called the "common sense" approach because it begins with a semantic analysis of the text in terms of the sense that the key words have in everyday speech. Such analysis reveals a complex of interlocked concepts that underlies the ability of speakers to recognize meaningful uses of these words. The common sense approach then ...


Pervasive Surveillance & The Future Of The Fourth Amendment, Russell Covey 2015 Georgia State University College of Law

Pervasive Surveillance & The Future Of The Fourth Amendment, Russell Covey

Russell D. Covey

We are in a period of intense technological change. The continued explosive growth in technology has two major effects on the scope and application of the Fourth Amendment. First, the diffusion of powerful new technologies like DNA synthesis and high-powered computing makes it far easier than ever before for ill-meaning groups or individuals to obtain powerful and destructive weapons. Regardless of who is perceived to desire such weapons, the very existence and potential use of such weapons poses a permanent and growing threat to national security. Second, with the development of new technologies, governments are finding it increasingly cheap and ...


Purpose, Policing, And The Fourth Amendment, Nirej Sekhon 2015 Georgia State University College of Law

Purpose, Policing, And The Fourth Amendment, Nirej Sekhon

Nirej Sekhon

Fourth Amendment cases are replete with references to “purpose.” Typically, these references pertain to the motivations of individual officers and occasionally to those of public institutions. That courts pay attention to purpose is unsurprising. Across many areas of law, an alleged wrongdoer’s intentions are often critical to determining liability, a remedy, or both. Purpose analysis in Fourth Amendment cases however, is surprisingly confused. The Supreme Court has, without explanation, advanced separate frameworks for analyzing purpose – objective, subjective, and programmatic. The only consistent thing about the three approaches is that they all fail to ensure that law enforcement agents behave ...


Blood And Privacy: Towards A "Testing-As-Search" Paradigm Under The Fourth Amendment, Andrei Nedelcu 2015 Seattle University School of Law

Blood And Privacy: Towards A "Testing-As-Search" Paradigm Under The Fourth Amendment, Andrei Nedelcu

Seattle University Law Review

A vehicle on a public thoroughfare is observed driving erratically and careening across the roadway. After the vehicle strikes another passenger car and comes to a stop, the responding officer notices in the driver the telltale symptoms of intoxication—bloodshot eyes, slurred speech, and a distinct odor of intoxicants. On these facts, a lawfully-procured warrant authorizing the extraction of the driver’s blood is obtained. However, the document fails to circumscribe the manner and variety of testing that may be performed on the sample. Does this lack of particularity render the warrant constitutionally infirm as a mandate for chemical analysis ...


Police Encounters With Race And Gender, Eric J. Miller 2015 Loyola Law School, Los Angeles

Police Encounters With Race And Gender, Eric J. Miller

UC Irvine Law Review

No abstract provided.


Democratic Policing, Barry Friedman, Maria Ponomarenko 2015 NYU School of Law

Democratic Policing, Barry Friedman, Maria Ponomarenko

New York University Public Law and Legal Theory Working Papers

Of all the agencies of executive government, those that police—that employ force and engage in surveillance—are the most threatening to the liberties of the American people. Yet, they are the least regulated. Two core requisites of American constitutionalism are democratic accountability and adherence to the rule of law. Democratic accountability ensures that policy choices are vetted in the public arena and have popular support; the rule of law requires that those choices be constitutional as well. Legislative enactments governing policing are few and far between. Although police departments have internal rules, these rules are rarely made public or ...


Fourth Amendment Fiduciaries, Kiel Brennan-Marquez 2015 New York University School of Law

Fourth Amendment Fiduciaries, Kiel Brennan-Marquez

Fordham Law Review

Fourth Amendment law is sorely in need of reform. To paraphrase Justice Sotomayor’s concurrence in United States v. Jones, the idea that people have no expectation of privacy in information voluntarily shared with third-parties—the foundation of the widely reviled “third-party doctrine”—makes little sense in the digital age.

In truth, however, it is not just the third-party doctrine that needs retooling today. It is the Fourth Amendment’s general approach to the problem of “shared information.” Under existing law, if A shares information with B, A runs the risk of “misplaced trust”—the risk that B will disclose ...


Of Third-Party Bathwater: How To Throw Out The Third-Party Doctrine While Preserving Government's Ability To Use Secret Agents, Amy L. Peikoff 2015 St. John's University School of Law

Of Third-Party Bathwater: How To Throw Out The Third-Party Doctrine While Preserving Government's Ability To Use Secret Agents, Amy L. Peikoff

St. John's Law Review

No abstract provided.


Regulating Drones Under The First And Fourth Amendments, Marc Jonathan Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai 2015 College of William & Mary Law School

Regulating Drones Under The First And Fourth Amendments, Marc Jonathan Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai

William & Mary Law Review

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September 2015. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Given UAV utility and cost-effectiveness over a vast range of tasks, however, widespread commercial use ultimately seems certain. Consequently, it is imperative to understand ...


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