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Articles 1 - 30 of 55
Full-Text Articles in Law
Self Incrimination And Cryptographic Keys, Gregory S. Sergienko
Self Incrimination And Cryptographic Keys, Gregory S. Sergienko
Greg 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]
Keeping The Government's Hands Off Our Bodies: Mapping A Feminist Legal Theory Approach To Privacy In Cross-Gender Prison Searches, Teresa A. Miller
Keeping The Government's Hands Off Our Bodies: Mapping A Feminist Legal Theory Approach To Privacy In Cross-Gender Prison Searches, Teresa A. Miller
Teresa A. Miller
The power of privacy is diminishing in the prison setting, and yet privacy is the legal theory prisoners rely upon most to resist searches by correctional officers. Incarcerated women in particular rely upon privacy to shield them from the kind of physical contact that male guards have been known to abuse. The kind of privacy that protects prisoners from searches by guards of the opposite sex derives from several sources, depending on the factual circumstances. Although some form of bodily privacy is embodied in the First, Fourth, Eighth, and Fourteenth Amendments, prisoners challenging the constitutionality of cross-gender searches most commonly …
Sex & Surveillance: Gender, Privacy & The Sexualization Of Power In Prison, Teresa A. Miller
Sex & Surveillance: Gender, Privacy & The Sexualization Of Power In Prison, Teresa A. Miller
Teresa A. Miller
In prison, surveillance is power and power is sexualized. Sex and surveillance, therefore, are profoundly linked. Whereas numerous penal scholars from Bentham to Foucault have theorized the force inherent in the visual monitoring of prisoners, the sexualization of power and the relationship between sex and surveillance is more academically obscure. This article criticizes the failure of federal courts to consider the strong and complex relationship between sex and surveillance in analyzing the constitutionality of prison searches, specifically, cross-gender searches. The analysis proceeds in four parts. Part One introduces the issues posed by sex and surveillance. Part Two describes the sexually …
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
On The 'Considered Analysis' Of Collecting Dna Before Conviction, David H. Kaye
On The 'Considered Analysis' Of Collecting Dna Before Conviction, David H. Kaye
David Kaye
For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland's highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Chief Justice Roberts stayed the Maryland judgment, writing that "given the considered analysis of courts on the other side …
Maryland V. King: Per Se Unreasonableness, The Golden Rule, And The Future Of Dna Databases, David H. Kaye
Maryland V. King: Per Se Unreasonableness, The Golden Rule, And The Future Of Dna Databases, David H. Kaye
David Kaye
In Maryland v. King, the Supreme Court applied a balancing test to uphold a Maryland statute mandating preconviction collection and analysis of DNA from individuals charged with certain crimes. The DNA profiles are limited to an inherited set of DNA sequences that are not known to be functional and that are tokens of individual identity. This invited online essay examines two aspects of an article on the case by Professor Erin Murphy. I question the claim that the case is pivotal in a conceivable abandonment of the per se rule that warrantless, suspicionless searches are unconstitutional unless they fall …
Drawing Lines: Unrelated Probable Cause As A Prerequisite To Early Dna Collection, David H. Kaye
Drawing Lines: Unrelated Probable Cause As A Prerequisite To Early Dna Collection, David H. Kaye
David Kaye
Swabbing the inside of a cheek has become part of the custodial arrest process in many jurisdictions. The majority view (thus far) is that routinely collecting DNA before conviction (and analyzing it, recording the results, and comparing them to DNA profiles from crime-scene databases) is consistent with Fourth Amendment protections against unreasonable searches and seizures. However, some judges and commentators have argued that DNA sampling in advance of a determination by a judge or grand jury of probable cause for the arrest or charge is unconstitutional. This essay shows that this demand is largely unfounded. Either warrantless, suspicionless DNA collection …
The Dog Days Fourth Amendment Jurisprudence, Kit Kinports
The Dog Days Fourth Amendment Jurisprudence, Kit Kinports
Kit Kinports
This Article discusses Florida v. Harris and Florida v. Jardines, the two Fourth Amendment drug dog opinions issued by the Supreme Court earlier this year. Together the cases hold that a narcotics detection dog effects a “search” when it intrudes on a constitutionally protected area in order to collect evidence, but that the dog’s positive alert is generally sufficient to support a finding of probable cause. The piece argues that both cases essentially generate a bright-line rule, thereby deviating from precedent that favored a more amorphous standard considering all the surrounding circumstances. Like many purportedly clear rules, the ones flowing …
Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports
Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports
Kit Kinports
This piece argues that the Supreme Court's April 2014 decision in Navarette v. Calfornia, like last Term's opinion in Florida v. Harris, deviates from longstanding Supreme Court precedent treating probable cause and reasonable suspicion as totality-of-the-circumstances tests. Instead, these two recent rulings essentially rely on rigid rules to define probable cause and reasonable suspicion. The article criticizes the Court for selectively endorsing bright-line tests that favor the prosecution, and argues that both decisions generate rules that oversimplify and therefore tend to be overinclusive.
Diminishing Probable Cause And Minimalist Searches, Kit Kinports
Diminishing Probable Cause And Minimalist Searches, Kit Kinports
Kit Kinports
This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are …
Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports
Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports
Kit Kinports
This Article discusses the Supreme Court’s use of the concepts of culpability and deterrence in its Fourth Amendment jurisprudence, in particular, in the opinions applying the good-faith exception to the exclusionary rule. The contemporary Court sees deterrence as the exclusionary rule’s sole function, and the Article begins by taking the Court at its word, evaluating its exclusionary rule case law on its own terms. Drawing on three different theories of deterrence – economic rational choice theory, organizational theory, and the expressive account of punishment – the Article analyzes the mechanics by which the exclusionary rule deters unconstitutional searches and questions …
Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports
Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports
Kit Kinports
Although few noticed the link between them, two Supreme Court cases decided in the same week last Term, Ashcroft v. al-Kidd and Camreta v. Greene, both involved the Fourth Amendment implications of detaining witnesses to a crime. Al-Kidd, an American citizen, was arrested under the federal material witness statute in connection with an investigation into terrorist activities, and Greene, a nine-year-old suspected victim of child abuse, was seized and interrogated at school by two state officials. The opinions issued in the two cases did little to resolve the constitutional issues that arise in witness detention cases, and in fact muddied …
Congressional Due Process, Andrew M. Wright
Congressional Due Process, Andrew M. Wright
Andrew M Wright
This article identifies significant deficiencies in Congress’s investigative practices. Consequences of congressional scrutiny can be profound, yet the second Congress calls, almost none of the safeguards of the American legal system are present. I argue such practices demonstrate institutional indifference to constitutional due process norms. The article highlights differences between congressional and judicial proceedings with respect to the safeguards of witnesses and targets. The purpose of congressional inquiry fundamentally differs from adjudication, and therefore does not call for the full complement of procedural rights afforded in judicial proceedings. Congress seeks facts and expertise to inform legislative judgments that will have …
The Search And Seizure Of Private Papers: Fourth And Fifth Amendment Considerations, Steven Shiffrin
The Search And Seizure Of Private Papers: Fourth And Fifth Amendment Considerations, Steven Shiffrin
Steven H. Shiffrin
There is a recognizable factual distinction between the search and seizure of private papers and the search and seizure of non-documentary items. It is difficult, however, to decide when such a distinction should assume constitutional dimensions. Specifically, are there circumstances under which private papers should be immune from search and seizure? In a 1967 landmark case, Warden v. Hayden, the United States Supreme Court raised doubts concerning the continued validity of decades of settled law on this important issue. Warden's reopening of this problem aroused the curiosity of commentators, spurred new policy arguments in the American Law Institute, divided the …
Dalla Traccia Di Sangue All'identikit Facciale, Charles E. Maclean
Dalla Traccia Di Sangue All'identikit Facciale, Charles E. Maclean
Charles E. MacLean
Assessment of dilemmas inherent in using DNA phenotyping methods to generate a physical likeness of a crime suspect based only on DNA shed at the crime scene.
Calling Out Maryland V. King: Dna, Cell Phones, And The Fourth Amendment, Jennie Vee Silk
Calling Out Maryland V. King: Dna, Cell Phones, And The Fourth Amendment, Jennie Vee Silk
Jennie Vee Silk
In Maryland v. King, the Supreme Court narrowly upheld a Maryland statute that permits police to obtain a DNA sample from an arrestee without a search warrant. A year later, the Court drastically changed course and provided significantly more protection to an arrestee’s privacy. In a unanimous decision, the Court in Riley v. California held that police must obtain a search warrant before they can search the cell phone of an arrestee.
This article is the first to compare the Court’s conflicting decisions in Riley and King. Riley and King present the same issue: governmental invasion of privacy for …
The First 48: Ending The Use Of Categorically Unconstitutional Investigative Holds In Violation Of County Of Riverside V. Mclaughlin, Daniel A. Horwitz
The First 48: Ending The Use Of Categorically Unconstitutional Investigative Holds In Violation Of County Of Riverside V. Mclaughlin, Daniel A. Horwitz
Daniel A. Horwitz
Deadly Force In Memphis: Tennessee V. Garner, John H. Blume
Deadly Force In Memphis: Tennessee V. Garner, John H. Blume
John H. Blume
On October 3, 1974, officers Hymon and Wright of the Memphis Police Department responded to a call about a burglary in progress. When they arrived at the address, a woman standing in the door told the officers that she had heard glass breaking and that someone was breaking into the house next door. Officer Hymon went around the near side of the house. When he reached the backyard, he saw someone run from the back of the house. With his flashlight, he found a person crouched next to a fence at the back of the yard, some thirty to forty …
School Surveillance And The Fourth Amendment, Jason P. Nance
School Surveillance And The Fourth Amendment, Jason P. Nance
Jason P. Nance
In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …
'I Know My Rights, You Go'n Need A Warrant For That:' The Fourth Amendment, Riley's Impact, And Warrantless Searches Of Third-Party Clouds, Laurie Buchan Serafino
'I Know My Rights, You Go'n Need A Warrant For That:' The Fourth Amendment, Riley's Impact, And Warrantless Searches Of Third-Party Clouds, Laurie Buchan Serafino
Laurie B. Serafino
Scholars have frequently suggested that the Fourth Amendment ought to be applied with varying degrees of rigor depending on the seriousness of the crime investigated. Courts have largely rejected such an offense-specific approach to constitutional protections, but have demonstrated deference to the Executive Branch in matters of national security in other contexts. The particularly heightened concern raised by the threat of terrorism suggests that, at least in the context of these most serious of cases, courts ought to engage in some form of balance that recognizes the uniquely strong government interest. Such an approach, however, has to recognize that the …
Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz
Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz
Martin A. Schwartz
No abstract provided.
You Booze, You Bruise, You Lose: Analyzing The Constitutionality Of Florida’S Involuntary Blood Draw Statute In The Wake Of Missouri V. Mcneely, Francisco D. Zornosa
You Booze, You Bruise, You Lose: Analyzing The Constitutionality Of Florida’S Involuntary Blood Draw Statute In The Wake Of Missouri V. Mcneely, Francisco D. Zornosa
Francisco D Zornosa
No abstract provided.
Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind
Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind
Tonja Jacobi
It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between police investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited police resources to develop countermeasures, police will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game theoretic model that shows that when police investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …
Checked In: Real-Time Geolocation Surveillance And The Fourth Amendment, Eric J. Struening
Checked In: Real-Time Geolocation Surveillance And The Fourth Amendment, Eric J. Struening
Eric J Struening
Leaks have revealed that the use of personal technology such as cell phones and e-mail plays a large part in how the government obtains national security information. However, it is still an open question of how far the protection of the Fourth Amendment provides an individual against government intrusion in that type of technology. This article examines how the Fourth Amendment applies to the real-time tracking of national security targets through technology. I argue that a non-physical, short-term, warrantless, real-time trace of an individual’s location for national security purposes will not infringe the prohibition against unreasonable searches and seizures. As …
Amicus Brief -- Riley V. California And United States V. Wurie, Charles E. Maclean, Adam Lamparello
Amicus Brief -- Riley V. California And United States V. Wurie, Charles E. Maclean, Adam Lamparello
Adam Lamparello
Warrantless searches of cell phone memory—after a suspect has been arrested, and after law enforcement has seized the phone—would have been unconstitutional at the time the Fourth Amendment was adopted, and are unconstitutional now. Simply stated, they are unreasonable. And reasonableness—not a categorical warrant requirement—is the “touchstone of Fourth Amendment analysis.”
Katz On A Hot Tin Roof: The Reasonable Expectation Of Privacy Is Rudderless In The Digital Age Unless Congress Continually Resets The Privacy Bar, Charles E. Maclean
Katz On A Hot Tin Roof: The Reasonable Expectation Of Privacy Is Rudderless In The Digital Age Unless Congress Continually Resets The Privacy Bar, Charles E. Maclean
Charles E. MacLean
The Katz reasonable expectation of privacy doctrine has lasting relevance in the digital age, but that relevance must be carefully and clearly guided in great detail by Congressional and state legislative enactments continually resetting the privacy bar as technology advances. In that way, the Katz “reasonableness” requirements are actually set by the legislative branch, thereby precluding courts from applying inapposite analogies to phone booths, cigarette packs, and business records. Once legislation provides the new contours of digital privacy, those legislative contours become the new “reasonable.”
This article calls upon Congress, and to a lesser extent, state legislatures, to control that …
The Rise And Fall Of The Exclusionary Rule, Albert E. Poirier Jr.
The Rise And Fall Of The Exclusionary Rule, Albert E. Poirier Jr.
Albert E Poirier Jr.
The years between 1913 and 1967 saw a growing tendency on the part of the Supreme Court to allow the submission of evidence that had been gained unlawfully by the police or prosecutors. Since 1961, and particularly during the Rehnquist and Roberts Courts, the rules excluding evidence have steadily diminished. This paper seeks to review the history of the exclusionary rule.
Grounding Drones: Big Brother’S Tool Box Needs Regulation Not Elimination, Melanie M. Reid
Grounding Drones: Big Brother’S Tool Box Needs Regulation Not Elimination, Melanie M. Reid
Melanie M. Reid
One of the most significant contemporary issues in privacy law relates to law enforcement’s new domestic surveillance tool: unmanned aerial vehicles, also known as, drones. Law enforcement’s use of aerial surveillance as an investigatory tool is currently under attack. In the past, if law enforcement chose to follow a suspect throughout the day, either on the ground or in the air, they need not worry about seeking a warrant or determining whether probable cause or reasonable suspicion exists to justify their surveillance. Aerial surveillance of criminal suspects has been considered outside the protections of Fourth Amendment law. In the 1980’s, …
The "Not A Search" Game, John F. Stinneford
Chasing Bits Across Borders, Patricia L. Bellia
Chasing Bits Across Borders, Patricia L. Bellia
Patricia L. Bellia
As computer crime becomes more widespread, countries increasingly confront difficulties in securing evidence stored in electronic form outside of their borders. These difficulties have prompted two related responses. Some states have asserted a broad power to conduct remote cross-border searches - that is, to use computers within their territory to access and examine data physically stored outside of their territory. Other states have pressed for recognition of a remote cross-border search power in international fora, arguing that such a power is an essential weapon in efforts to combat computer crime. This Article explores these state responses and develops a framework …