Law Commons^™

Policing & The Problem Of Physical Restraint, Steven Arrigg Koh

Faculty Scholarship

The Fourth Amendment of the U.S. Constitution prohibits unreasonable “seizures” and thus renders unlawful police use of excessive force. On one hand, this definition is expansive. In the U.S. Supreme Court’s 2021 Term, in Torres v. Madrid, the Court clarified that a “seizure” includes any police application of physical force to the body with intent to restrain. Crucially, Chief Justice Roberts’ majority opinion emphasized that police may seize even when merely laying “the end of a finger” on a layperson’s body. And yet, the Supreme Court’s Fourth Amendment totality-of-the-circumstances reasonableness balancing test is notoriously imprecise—a “factbound morass,” in the famous …

Katz Or Dogs? Why The Katz Reasonable Expectation Of Privacy Test Is More Applicable To Advancing Technology Than A Test Applied To Dog Sniffs, Blade M. Allen

Student Published Scholarship

Most often, when law enforcement agencies or governments use a person’s DNA or genetic information, they do so in the pursuit of justice. That said, there are privacy concerns that arise when the government or police have open access to any person’s DNA or genetic information, especially through the Internet. This article attempts to present an argument for a reasonable expectation of privacy (REP) in a person’s genetic information or DNA as well as other forms of advancing technology. It begins with a history of the US Supreme Court’s interpretations of the Fourth Amendment to the US Constitution, continues with …

Searches Without Suspicion: Avoiding A Four Million Person Underclass, Tonja Jacobi, Addie Maguire

Faculty Articles

In Samson v. California, the Supreme Court upheld warrantless, suspicionless searches for parolees. That determination was controversial both because suspicionless searches are, by definition, anathema to the Fourth Amendment, and because they arguably undermine parolees’ rehabilitation. Less attention has been given to the fact that the implications of the case were not limited to parolees. The opinion in Samson included half a sentence of dicta that seemingly swept probationers into its analysis, implicating the rights of millions of additional people in the United States. Not only is analogizing parolees and probationers not logically sound because the two groups differ …

Are Police Officers Bayesians? Police Updating In Investigative Stops, Jeffrey A. Fagan, Lila J.E. Nojima

Faculty Scholarship

Theories of rational behavior assume that actors make decisions where the benefits of their acts exceed their costs or losses. If those expected costs and benefits change over time, behavior will change accordingly as actors learn and internalize the parameters of success and failure. In the context of proactive policing, police stops that achieve any of several goals — constitutional compliance, stops that lead to “good” arrests or summonses, stops that lead to seizures of weapons, drugs, or other contraband, or stops that produce good will and citizen cooperation — should signal to officers the features of a stop that …

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 conclude that …

The Broken Fourth Amendment Oath, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

The Fourth Amendment requires that warrants be supported by “Oath or affirmation.” Under current doctrine, a police officer may swear the oath to obtain a warrant merely by repeating the account of an informant. This Article shows, however, that the Fourth Amendment, as originally understood, required that the real accuser with personal knowledge swear the oath.

That real-accuser requirement persisted for nearly two centuries. Almost all federal courts and most state courts from 1850 to 1960 held that the oath, by its very nature, required a witness with personal knowledge. Only in 1960 did the Supreme Court hold in Jones …

Criminal Justice Secrets, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The American criminal justice system is cloaked in secrecy. The government employs covert surveillance operations. Grand-jury proceedings are hidden from public view. Prosecutors engage in closed-door plea-bargaining and bury exculpatory evidence. Juries convict defendants on secret evidence. Jury deliberations are a black box. And jails and prisons implement clandestine punishment practices. Although there are some justifications for this secrecy, the ubiquitous nature of it is contrary to this nation’s Founders’ steadfast belief in the transparency of criminal justice proceedings. Further, the pervasiveness of secrecy within today’s criminal justice system raises serious constitutional concerns. The accumulation of secrecy and the aggregation …

Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin

Scholarly Works

As the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence …

Surveillance And The Tyrant Test, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

How should society respond to police surveillance technologies? This question has been at the center of national debates around facial recog- nition, predictive policing, and digital tracking technologies. It is a debate that has divided activists, law enforcement officials, and academ- ics and will be a central question for years to come as police surveillance technology grows in scale and scope. Do you trust police to use the tech- nology without regulation? Do you ban surveillance technology as a manifestation of discriminatory carceral power that cannot be reformed? Can you regulate police surveillance with a combination of technocratic rules, policies, …

The Fourth Amendment’S Forgotten Free-Speech Dimensions, Aya Gruber

Publications

No abstract provided.

Homes, History, And Shadows: Select Criminal Law And Procedure Cases From The Supreme Court’S 2020-21 Term, Eve Brensike Primus, Lily Sawyer-Kaplan

Articles

The death of Justice Ruth Bader Ginsburg in September 2020 and the appointment of Justice Amy Coney Barrett to replace her solidified a 6-3 majority on the Court for Republican appointees and is already affecting how the Court approaches and decides its criminal law and procedure cases. Justice Ginsburg, a strong advocate for equality and fair treatment, generally construed criminal statutes narrowly and stressed the importance of defendants’ procedural rights. Justice Barrett is an originalist who will look to history to seek answers on the scope of criminal procedure amendments. The combined appointments of Justice Gorsuch and Justice Barrett mean …

Structural Sensor Surveillance, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer the government a way to regulate municipal resources and the police a new power to monitor citizens. This structural sensor surveillance, however, raises a difficult constitutional question: Does the creation of continuously-recording, aggregated, long-term data collection systems violate the Fourth Amendment? After all, recent Supreme Court cases suggest that technologies that allow police to monitor location, reveal personal patterns, and track personal details for long periods of time are Fourth Amendment searches which require a probable cause warrant. This Article uses the innovation of smart …

The Origins And Legacy Of The Fourth Amendment Reasonableness Balancing Model, Kit Kinports

Journal Articles

The overwhelming majority of the Supreme Court’s Fourth Amendment cases over the past fifty years have been resolved using a warrant presumption model, which determines the constitutionality of a search or seizure by asking whether law enforcement officials had probable cause and a warrant, or some exception to those requirements. But three decisions, beginning in 2001, mysteriously deviated from that approach and applied a reasonableness balancing model, upholding the searches in those cases after considering the totality of the circumstances and weighing the competing government interests against the defendant’s privacy interests. This balancing approach has justifiably been criticized as amorphous, …

The Fourth Amendment Inventory As A Check On Digital Searches, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Police and federal agents generally must obtain a warrant to search the tens of thousands of devices they seize each year. But once they have a warrant, courts afford these officers broad leeway to search the entire device, every file and folder, all metadata and deleted data, even if in search of only one incriminating file. Courts avow great reverence for the privacy of personal information under the Fourth Amendment but then claim there is no way to limit where an officer might find the target files, or know where the suspect may have hidden them.

These courts have a …

Police Violence And The African-American Procedural Habitus, Trevor George Gardner

Scholarship@WashULaw

How should an African American respond to a race-based police stop? What approach, disposition, or tactic will minimize his risk within the context of the police stop of being subject to police violence? This Essay advances a conversation among criminal procedural theorists about citizen agency within the field of police-administered criminal procedure, highlighting “The Talk” that parents have with their African American children regarding how to respond to police seizure. It argues that the most prominent version of The Talk—the one in which parents call for absolute deference to police authority in the event of a police stop—may be as …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

A Warrant Requirement Resurgence: The Fourth Amendment In The Roberts Court, Benjamin Priester

Journal Publications

Over many years, the United States Supreme Court has developed an extensive body of precedent interpreting and enforcing the provisions of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures by law enforcement agents conducting criminal investigations. Commonly called the "warrant requirement," one key component of this case law operates to deem some police investigatory techniques to be unconstitutional unless they are conducted pursuant to a search warrant issued in advance by a judge. The terms of the doctrine and its exceptions also authorize other investigatory actions as constitutionally permissible without a search warrant. The …

Functional Equivalence And Residual Rights Post-Carpenter: Framing A Test Consistent With Precedent And Original Meaning, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The Carpenter Court held that warrantless access to seven or more days of cell site location information (CSLI) constitutes a violation of the reasonable expectation of privacy that individuals have in the whole of their physical movements. But the grounds on which the Court drew a line characterize all sorts of digital records—including those at issue in Miller and Smith, belying the majority’s claim that the decision leaves third-party doctrine intact. Instead of avoiding Katz’s pitfalls, moreover, the Court emphasized voluntary assumption of risk, doubling down on the subjective nature of judicial determination. The decision will likely lead to …

Policing The Prosecutor: Race, The Fourth Amendment, And The Prosecution Of Criminal Cases, Renee Mcdonald Hutchins

Journal Articles

As this article explores, while the Fourth Amendment is commonly criticized for the discretion it affords police officers, an overlooked result of the amendment’s lax regulation of the police is the enhanced power it affords prosecutors. Though for a time a warrant was the notional measure of reasonableness, over the last century the Court has crafted several exceptions to that measure to give the police greater leeway during on-the-street encounters. The Court has concurrently retreated from robust application of the exclusionary rule to remedy constitutional violations. These shifts have meant far more predictable wins for the prosecution at the suppression …

Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin

Faculty Articles

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …

Cybersurveillance Intrusions And An Evolving Katz Privacy Test, Margaret Hu

Scholarly Articles

To contextualize why a new approach to the Fourth Amendment is essential, this Article describes two emerging cybersurveillance tools. The first Cybersurveillance tool, Geofeedia, has been deployed by state and local law enforcement. Geofeedia uses a process known as "geofencing" to draw a virtual barrier around a particular geographic region, and then identifies and tracks public social media posts within that region for predictive policing purposes. The second tool, Future Attribute Screening Technology (FAST), is under development by the United States Department of Homeland Security (DHS). FAST is another predictive policing tool that analyzes physiological and behavioral signals with the …

Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Each year, law enforcement seizes thousands of electronic devices — smartphones, laptops, and notebooks — that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password?

This Article considers the Fifth Amendment protection against compelled disclosures of passwords — a question that has split and …

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf

Scholarly Works

This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single …

Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David Rudovsky, David A. Harris

All Faculty Scholarship

The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of …

Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David A. Harris, David Rudovsky

Articles

The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of …

Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

In at least two recent cases, courts have rejected service providers' capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular thirdparty litigant could not. In the situations presented by the recent cases, by …

Policing Criminal Justice Data, Wayne A. Logan, Andrew Guthrie Ferguson

Scholarly Publications

No abstract provided.

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

Newsroom: Goldstein On Drug Databases 6-27-2016, Sheri Qualters, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.