Warranted Exclusion: A Case For A Fourth Amendment Built On The Right To Exclude, 2023 University of New Hampshire, Franklin Pierce School of Law
Warranted Exclusion: A Case For A Fourth Amendment Built On The Right To Exclude, Mailyn Fidler
SMU Law Review
Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine—the reasonable expectation of privacy test—struggles with conceptual clarity and predictability. The Supreme Court’s recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the “maximalist” property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible concept derived from property law—what …
The Fourth Amendment's Constitutional Home, 2023 University of Pittsburgh School of Law
The Fourth Amendment's Constitutional Home, Gerald S. Dickinson
Articles
The home enjoys omnipresent status in American constitutional law. The Bill of Rights, peculiarly, has served as the central refuge for special protections to the home. This constitutional sanctuary has elicited an intriguing textual and doctrinal puzzle. A distinct thread has emerged that runs through the first five amendments delineating the home as a zone where rights emanating from speech, smut, gods, guns, soldiers, searches, sex, and self-incrimination enjoy special protections. However, the thread inexplicably unravels upon arriving at takings. There, the constitutional text omits and the Supreme Court’s doctrine excludes a special zone of safeguards to the home. This …
The Fourth Amendment And General Law, 2023 Washington University in St. Louis School of Law
The Fourth Amendment And General Law, Daniel Epps, Danielle D'Onfro
Scholarship@WashULaw
For decades, Fourth Amendment protections have turned on “reasonable expectations of privacy.” But a new era may be dawning. There is growing interest among judges and scholars in turning away from privacy toward property or positive law as the touchstone for Fourth Amendment protections. Yet many questions remain about how that approach should work, such as where judges should look for positive law and precisely what role positive law should play in Fourth Amendment analysis.
This Article answers those questions, and in so doing lays forth a new, comprehensive theory of the Fourth Amendment. We argue that courts should interpret …
Evolving Privacy Protections For Emerging Machine Learning Data Under Carpenter V. United States, 2023 FIU College of Law
Evolving Privacy Protections For Emerging Machine Learning Data Under Carpenter V. United States, Emily Nicolella
FIU Law Review
The Fourth Amendment’s third-party doctrine eliminates an individual’s reasonable expectation of privacy in information they willingly turn over to third parties. Government scrutiny of this information is not considered a search under the Fourth Amendment and is therefore not given constitutional protections. In the 2018 case Carpenter v. United States, the Supreme Court created an exception to the third-party doctrine. In Carpenter, a case involving the warrantless use of cell site location information (CSLI) in a criminal investigation, the Court held that individuals do have a reasonable expectation of privacy regarding CSLI. According to Chief Justice Roberts, despite the necessary …
Scanning Iphones To Save Children: Apple’S On-Device Hashing Algorithm Should Survive A Fourth Amendment Challenge, 2022 Penn State Dickinson Law
Scanning Iphones To Save Children: Apple’S On-Device Hashing Algorithm Should Survive A Fourth Amendment Challenge, Timothy Gernand
Dickinson Law Review (2017-Present)
When Apple announced it would combat the growth of child sexual abuse material (CSAM) on its platform by scanning all its users’ devices without their consent, many of its loyal customers felt betrayed. With tech companies such as Google and Facebook arranging their business models around selling their customers’ personal information, Apple customers saw the company’s focus on privacy as a refreshing alternative. However, as Apple itself privately acknowledged, this emphasis on privacy had led to it becoming a haven for CSAM. Despite the reputational damage it would incur with its customers, Apple resolved to confront CSAM on its platform …
The Black Fourth Amendment, 2022 Washington and Lee University School of Law
The Black Fourth Amendment, Charisma Hunter
Washington and Lee Law Review Online
Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.
The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the …
Digitizing The Fourth Amendment: Privacy In The Age Of Big Data Policing, 2022 University of Maine School of Law
Digitizing The Fourth Amendment: Privacy In The Age Of Big Data Policing, Charles E. Volkwein
Privacy Certificate Student Publications
Today’s availability of massive data sets, inexpensive data storage, and sophisticated analytical software has transformed the capabilities of law enforcement and created new forms of “Big Data Policing.” While Big Data Policing may improve the administration of public safety, these methods endanger constitutional protections against warrantless searches and seizures. This Article explores the Fourth Amendment consequences of Big Data Policing in three parts. First, it provides an overview of Fourth Amendment jurisprudence and its evolution in light of new policing technologies. Next, the Article reviews the concept of “Big Data” and examines three forms of Big Data Policing: Predictive Policing …
High Time For Change: The Legalization Of Marijuana And Its Impact On Warrantless Roadside Motor Vehicle Searches, 2022 Washington and Lee University School of Law
High Time For Change: The Legalization Of Marijuana And Its Impact On Warrantless Roadside Motor Vehicle Searches, Molly E. O'Connell
Washington and Lee Law Review Online
The proliferation of marijuana legalization has changed the relationship between driving and marijuana use. While impaired driving remains illegal, marijuana use that does not result in impairment is not a bar to operating a motor vehicle. Scientists have yet to find a reliable way for law enforcement officers to make this distinction. In the marijuana impairment context, there is not a scientifically proven equivalent to the Blood Alcohol Content standard nor are there reliable roadside assessments. This scientific and technological void has problematic consequences for marijuana users that get behind the wheel and find themselves suspected of impaired driving. Without …
Where There Is A Right, There Is A Remedy—Or Is There?, 2022 Saint Louis University School of Law
Where There Is A Right, There Is A Remedy—Or Is There?, Grace Panicola
SLU Law Journal Online
Courts have repeatedly declined to allow causes of actions under the Constitution when Plaintiffs’ constitutional rights are violated by government officials. In this article, Grace Panicola discusses a pocket of governmental immunity that creates serious implications for Plaintiffs as they ultimately face inadequate remedies.
The Fourth Amendment And The Problem Of Social Cost, 2022 Northwestern Pritzker School of Law
The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker
Northwestern University Law Review
The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. …
It Just Makes Sense: An Argument For A Uniform Objective Standard For Incarcerated Individuals Bringing Claims Under 42 U.S.C. § 1983, 2022 Washington and Lee University School of Law
It Just Makes Sense: An Argument For A Uniform Objective Standard For Incarcerated Individuals Bringing Claims Under 42 U.S.C. § 1983, Pearce Thomson Embrey
Washington and Lee Journal of Civil Rights and Social Justice
In July 2020, the New York Times published an article on a Department of Justice report detailing the systematic abuse of incarcerated individuals by prison guards within the State of Alabama’s Department of Corrections. This report evidences the challenges faced by incarcerated individuals seeking to vindicate their Eighth Amendment rights. In a legal sense, those individuals who turn to the court system for relief face an almost insurmountable burden of proof. This Note begins by surveying the history of excessive force claims under the Fourth, Eighth, and Fourteenth Amendments, as well as deliberate indifference claims under the Eighth and Fourteenth …
Legal Implications Of A Ubiquitous Metaverse And A Web3 Future, 2022 Marquette University Law School
Legal Implications Of A Ubiquitous Metaverse And A Web3 Future, Jon M. Garon
Marquette Law Review
The metaverse is understood to be an immersive virtual world serving as the locus for all forms of work, education, and entertainment experiences. Depicted in books, movies, and games, the metaverse has the potential not just to supplement real-world experiences but to substantially supplant them. This Article explores the rapid emergence and evolution of the Web3 technologies at the heart of the metaverse movement. Web3 itself is a paradigmatic shift in internet commerce.
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, 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, 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 state …
Deprogramming Bias: Expanding The Exclusionary Rule To Pretextual Traffic Stop Using Data From Autonomous Vehicle And Drive-Assistance Technology, 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 when …
“Bang!”: Shotspotter Gunshot Detection Technology, Predictive Policing, And Measuring Terry’S Reach, 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 …
An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment And Protesting While Black, 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 arrests were …
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, 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 neutralize …
Putting Together The Pieces: The Mosaic Theory And Fourth Amendment Jurisprudence Since Carpenter, 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, 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: nullification. …