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The Broken Fourth Amendment Oath, Laurent Sacharoff
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 …
The Fourth Amendment Inventory As A Check On Digital Searches, Laurent Sacharoff
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 …
Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff
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 …