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The Fourth Amendment Implications Of "U.S. Imitation Judges", Mary P. Holper 2020 Boston College Law School

The Fourth Amendment Implications Of "U.S. Imitation Judges", Mary P. Holper

Boston College Law School Faculty Papers

Scholars, immigration judges, attorneys, and congressional committees have been calling for a truly independent immigration adjudication system for decades, critiquing a system in which some judges describe themselves as “U.S. imitation judges.” This Article examines the lack of truly independent immigration judges (IJs) through the lens of the Fourth Amendment, which applies when a noncitizen is arrested for deportation. In 1975, the Supreme Court held in Gerstein v. Pugh that to continue detention after an initial arrest in the criminal context, the detached judgment of a neutral judge is necessary; a prosecutor’s finding of probable cause is insufficient ...


A Right To Go Dark (?), David C. Gray 2020 University of Maryland School of Law

A Right To Go Dark (?), David C. Gray

SMU Law Review

In 2013, reports based on documents leaked by former National Security Agency contractor Edward Snowden revealed committed efforts by federal agencies to develop and deploy data surveillance technologies. These revelations documented the ability of government agencies to monitor internet usage, read the contents of communications, and access data stored in the cloud and on personal devices. These revelations marked a turning point in the public conversation as consumers became aware of the extent to which national security and law enforcement agencies can monitor a wide range of activities in physical and virtual spaces.

The market responded. Technology companies began to ...


Saving America’S Privacy Rights: Why Carpenter V. United States Was Wrongly Decided And Why Courts Should Be Promoting Legislative Reform Rather Than Extending Existing Privacy Jurisprudence, David Stone 2020 St. Mary's University School of Law

Saving America’S Privacy Rights: Why Carpenter V. United States Was Wrongly Decided And Why Courts Should Be Promoting Legislative Reform Rather Than Extending Existing Privacy Jurisprudence, David Stone

St. Mary's Law Journal

Privacy rights are under assault, but the Supreme Court’s judicial intervention into the issue, starting with Katz v. United States and leading to the Carpenter v. United States decision has created an inconsistent, piecemeal common law of privacy that forestalls a systematic public policy resolution by Congress and the states. In order to reach a satisfactory and longlasting resolution of the problem consistent with separation of powers principles, the states should consider a constitutional amendment that reduces the danger of pervasive technologyaided surveillance and monitoring, together with a series of statutes addressing each new issue posed by technological change ...


Obvious But Not Clear: The Right To Refuse To Cooperate With The Police During A Terry Stop, Sam Kamin, Zachary Shiffler 2020 University of Denver

Obvious But Not Clear: The Right To Refuse To Cooperate With The Police During A Terry Stop, Sam Kamin, Zachary Shiffler

American University Law Review

No abstract provided.


Brief Of Professors Of Law, Us V. Bergdahl, Joshua E. Kastenberg, Rachel E. Vanlandingham, Geoffrey S. Corn 2019 University of New Mexico - School of Law

Brief Of Professors Of Law, Us V. Bergdahl, Joshua E. Kastenberg, Rachel E. Vanlandingham, Geoffrey S. Corn

Faculty Scholarship

When scrutinizing executive actions for unlawful command influence, this Court must account for a president’s immense power over the military. The extant judicial test for unlawful command influence – a violation of due process in the military setting – is a contextual one, and hence must consider the unique and unparalleled authority of the Commander-In-Chief over the military and individual service-members when the president’s actions are at issue. This executive power should also be evaluated in light of its myriad, and historically important, constitutional and statutory constraints – some predating the birth of the United States – that appropriately continue to shape ...


Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin 2019 Boston Univeristy School of Law

Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin

Faculty Scholarship

This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists ...


The Fatal Flaws Of The 'Sneak And Peek' Statute And How To Fix It, Jonathan Witmer-Rich 2019 Cleveland State University

The Fatal Flaws Of The 'Sneak And Peek' Statute And How To Fix It, Jonathan Witmer-Rich

Jonathan Witmer-Rich

In the USA PATRIOT Act, Congress authorized delayed notice search warrants — warrants authorizing a “sneak and peek” search, in which investigators conduct covert searches, notifying the occupant weeks or months after the search. These warrants also sometimes authorize covert seizures — a “sneak and steal” search — in which investigators seize evidence, often staging the scene to look like a burglary.

Covert searches invade the privacy of the home and should be used only in exceptional cases. The current legal rules governing delayed notice search warrants are conceptually flawed. The statute uses a legal doctrine — “exigent circumstances” — that does not make logical ...


Fourth Amendment Textualism, Jeffrey Bellin 2019 William & Mary Law School

Fourth Amendment Textualism, Jeffrey Bellin

Faculty Publications

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive Even the justices know they have a problem Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach Unfortunately, no viable alternatives appear on the horizon The justices themselves offer little in the way of a replacement And scholars ...


Collect Call For Clarification: How Carpenter Has (And Has Not) Changed Modern Fourth Amendment Jurisprudence, Samuel D. Thomas 2019 Boston College Law School

Collect Call For Clarification: How Carpenter Has (And Has Not) Changed Modern Fourth Amendment Jurisprudence, Samuel D. Thomas

Boston College Law Review

Since the 1800s, the United States Supreme Court has struggled to define the limits of the Fourth Amendment and adapt the scope of its protection to advances in technology. The new ways we use technology to interact, and the role such technology plays in society, create unique questions that judicial precedent based on old technology has trouble answering. Most recently, cell phones and mobile applications have changed the way millions of Americans communicate with each other, and access and store information. For years the government accessed this shared information through subpoenas without triggering the Fourth Amendment’s protection from unwarranted ...


Standing To Challenge Familial Searches Of Commercial Dna Databases, Hillary L. Kody 2019 William & Mary Law School

Standing To Challenge Familial Searches Of Commercial Dna Databases, Hillary L. Kody

William & Mary Law Review

In April 2018, police officers arrested Joseph James DeAngelo. DeAngelo, the officers claimed, was the “Golden State Killer,” a man who committed dozens of murders and over fifty sexual assaults in California in the 1970s and 1980s. The Golden State Killer had long eluded police, even though his DNA profile linked him to dozens of violent crimes. While law enforcement officials from several jurisdictions in California had collected his DNA from crime scenes, the Golden State Killer’s crimes predated modern DNA analysis. Police found little use for the profile without a suspect’s profile to compare to it.

Nearly ...


Table Of Contents, Seattle University Law Review 2019 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


The Positive Law Model Of The Fourth Amendment, William Baude, James Y. Stern 2019 William & Mary Law School

The Positive Law Model Of The Fourth Amendment, William Baude, James Y. Stern

James Y. Stern

For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused, but viable alternatives have been slow to emerge. This Article supplies one.

We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection ...


United States Of America, Plaintiff-Appellee, V. Charles Williams Jr., Defendant-Appellant: Brief Of Appellant, Gregory Davis, Patricia E. Roberts, Brittany Sadler, Andrew L. Steinberg, Tillman J. Breckenridge, Thomas W. Ports Jr. 2019 William & Mary Law School

United States Of America, Plaintiff-Appellee, V. Charles Williams Jr., Defendant-Appellant: Brief Of Appellant, Gregory Davis, Patricia E. Roberts, Brittany Sadler, Andrew L. Steinberg, Tillman J. Breckenridge, Thomas W. Ports Jr.

Patricia E. Roberts

No abstract provided.


United States Of America, Plaintiff-Appellee, V. Charles Williams Jr., Defendant-Appellant: Reply Brief Of Appellant, Gregory Davis, Patricia E. Roberts, Brittany Sadler, Andrew L. Steinberg, Tillman J. Breckenridge, Thomas W. Ports Jr. 2019 William & Mary Law School

United States Of America, Plaintiff-Appellee, V. Charles Williams Jr., Defendant-Appellant: Reply Brief Of Appellant, Gregory Davis, Patricia E. Roberts, Brittany Sadler, Andrew L. Steinberg, Tillman J. Breckenridge, Thomas W. Ports Jr.

Patricia E. Roberts

No abstract provided.


Richard Ortega, Plaintiff-Appellant, V. United States Immigration And Customs Enforcement, Et Al., Defendants-Appellants: Reply Brief Of Appellant, Patricia E. Roberts, Tillman J. Breckenridge, Alison R.W. Toepp 2019 William & Mary Law School

Richard Ortega, Plaintiff-Appellant, V. United States Immigration And Customs Enforcement, Et Al., Defendants-Appellants: Reply Brief Of Appellant, Patricia E. Roberts, Tillman J. Breckenridge, Alison R.W. Toepp

Patricia E. Roberts

No abstract provided.


Richard Ortega, Plaintiff-Appellant, V. United States Immigration And Customs Enforcement, Et Al., Defendants-Appellants: Petition For A Writ Of Certiorari, Patricia E. Roberts, Tillman J. Breckenridge, Thomas W. Ports Jr. 2019 William & Mary Law School

Richard Ortega, Plaintiff-Appellant, V. United States Immigration And Customs Enforcement, Et Al., Defendants-Appellants: Petition For A Writ Of Certiorari, Patricia E. Roberts, Tillman J. Breckenridge, Thomas W. Ports Jr.

Patricia E. Roberts

No abstract provided.


Richard Ortega, Plaintiff-Appellant, V. United States Immigration And Customs Enforcement, Et Al., Defendants-Appellants: Brief Of Appellant, Patricia E. Roberts, Tillman J. Breckenridge, Alison R.W. Toepp 2019 William & Mary Law School

Richard Ortega, Plaintiff-Appellant, V. United States Immigration And Customs Enforcement, Et Al., Defendants-Appellants: Brief Of Appellant, Patricia E. Roberts, Tillman J. Breckenridge, Alison R.W. Toepp

Patricia E. Roberts

No abstract provided.


Oliver Lawal, Daosamid Bounthisane, And Gazali Shittu, Appellants, V. Marc Mcdonald, William Riley, And Frederick Chose, Appellees: Reply Brief Of Appellants, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan, Thomas W. Ports Jr. 2019 William & Mary Law School

Oliver Lawal, Daosamid Bounthisane, And Gazali Shittu, Appellants, V. Marc Mcdonald, William Riley, And Frederick Chose, Appellees: Reply Brief Of Appellants, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan, Thomas W. Ports Jr.

Patricia E. Roberts

No abstract provided.


Mary D. Branch, Plaintiff-Appellant, V. Officer Timothy Gorman, Et Al., Defandants-Appellants: Brief Of Appellant, Patricia E. Roberts, Pamela Palmer, Alexa Roggenkamp, Tillman J. Breckenridge, Robert M. Luck III 2019 William & Mary Law School

Mary D. Branch, Plaintiff-Appellant, V. Officer Timothy Gorman, Et Al., Defandants-Appellants: Brief Of Appellant, Patricia E. Roberts, Pamela Palmer, Alexa Roggenkamp, Tillman J. Breckenridge, Robert M. Luck Iii

Patricia E. Roberts

No abstract provided.


Oliver Lawal, Daosamid Bounthisane, And Gazali Shittu, Appellants, V. Marc Mcdonald, William Riley, And Frederick Chose, Appellees: Petition For Panel Rehearing, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan, Thomas W. Ports Jr. 2019 William & Mary Law School

Oliver Lawal, Daosamid Bounthisane, And Gazali Shittu, Appellants, V. Marc Mcdonald, William Riley, And Frederick Chose, Appellees: Petition For Panel Rehearing, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan, Thomas W. Ports Jr.

Patricia E. Roberts

No abstract provided.


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