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Full-Text Articles in Law
Revitalizing Fourth Amendment Protections: A True Totality Of The Circumstances Test In § 1983 Probable Cause Determinations, Ryan Sullivan
Revitalizing Fourth Amendment Protections: A True Totality Of The Circumstances Test In § 1983 Probable Cause Determinations, Ryan Sullivan
Nebraska College of Law: Faculty Publications
The Article analyzes claims of police misconduct and false arrest, specifically addressing the issue of whether a police officer may ignore evidence of an affirmative defense, such as self-defense, when determining probable cause for an arrest. The inquiry most often arises in § 1983 civil claims for false arrest where the officer was aware of some evidence a crime had been committed, but was also aware of facts indicating the suspect had an affirmative defense to the crime observed. In extreme cases, the affirmative defense at issue is actually self-defense in response to the officer’s own unlawful conduct. As police …
Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports
Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports
Journal Articles
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.
Debate: The Constitutionality Of Stop-And-Frisk In New York City, David Rudovsky, Lawrence Rosenthal
Debate: The Constitutionality Of Stop-And-Frisk In New York City, David Rudovsky, Lawrence Rosenthal
All Faculty Scholarship
Stop-and-frisk, a crime prevention tactic that allows a police officer to stop a person based on “reasonable suspicion” of criminal activity and frisk based on reasonable suspicion that the person is armed and dangerous, has been a contentious police practice since first approved by the Supreme Court in 1968. In Floyd v. City of New York, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk practices violate both the Fourth and Fourteenth Amendments. Professors David Rudovsky and Lawrence Rosenthal debate the constitutionality of stop-and-frisk in New York City in light of …
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
Journal Articles
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 …
Predictive Policing And Reasonable Suspicion, Andrew Ferguson
Predictive Policing And Reasonable Suspicion, Andrew Ferguson
Articles in Law Reviews & Other Academic Journals
Predictive policing is a new law enforcement strategy to reduce crime by predicting criminal activity before it happens. Using sophisticated computer algorithms to forecast future events from past crime patterns, predictive policing has become the centerpiece of a new smart-policing strategy in several major cities. The initial results have been strikingly successful in reducing crime.This article addresses the Fourth Amendment consequences of this police innovation, analyzing the effect of predictive policing on the concept of reasonable suspicion. This article examines predictive policing in the context of the larger constitutional framework of “prediction” and the Fourth Amendment. Many aspects of current …
Disentangling Administrative Searches, Eve Brensike Primus
Disentangling Administrative Searches, Eve Brensike Primus
Articles
Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …
Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb
Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb
Cornell Law Faculty Publications
No abstract provided.
In The Trenches: Searches And The Misunderstood Common-Law History Of Suspicion And Probable Cause, Fabio Arcila
In The Trenches: Searches And The Misunderstood Common-Law History Of Suspicion And Probable Cause, Fabio Arcila
Scholarly Works
A detailed analysis of the common law during the Framers’ era, and of how it reflected the Fourth Amendment’s restrictions, shows that many judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This conclusion challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.
Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake …
Grand Jury Discretion And Constitutional Design, Roger Fairfax
Grand Jury Discretion And Constitutional Design, Roger Fairfax
Articles in Law Reviews & Other Academic Journals
The grand jury possesses an unqualified power to decline to indict - despite probable cause that alleged criminal conduct has occurred. A grand jury might exercise this power, for example, to disagree with the wisdom of a criminal law or its application to a particular defendant. A grand jury might also use its discretionary power to send a message of disapproval regarding biased or unwise prosecutorial decisions or inefficient allocation of law enforcement resources in the community. This ability to exercise discretion on bases beyond the sufficiency of the evidence has been characterized pejoratively as grand jury nullification. The dominant …
Standing Room Only: Why Fourth Amendment Exclusion And Standing Can No Longer Logically Coexist, Sherry F. Colb
Standing Room Only: Why Fourth Amendment Exclusion And Standing Can No Longer Logically Coexist, Sherry F. Colb
Cornell Law Faculty Publications
No abstract provided.
The Reasonable Policeman: Police Intent In Criminal Procedure, Craig M. Bradley
The Reasonable Policeman: Police Intent In Criminal Procedure, Craig M. Bradley
Articles by Maurer Faculty
No abstract provided.
The Middle Class Fourth Amendment, Craig M. Bradley
The Middle Class Fourth Amendment, Craig M. Bradley
Articles by Maurer Faculty
No abstract provided.
The Qualitative Dimension Of Fourth Amendment "Reasonableness", Sherry F. Colb
The Qualitative Dimension Of Fourth Amendment "Reasonableness", Sherry F. Colb
Cornell Law Faculty Publications
Supreme Court doctrine protects two seemingly distinct kinds of interests under the heading of privacy rights: one "substantive," the other "procedural." The Fourth Amendment guarantee against "unreasonable searches and seizures" has been generally interpreted to protect procedural privacy. Searches are typically defined as governmental inspections of activities and locations in which an individual has a reasonable expectation of privacy from observation. In the typical case, this reasonable expectation of privacy may be breached only where the government has acquired a quantitatively substantial objective basis for believing that the search would uncover evidence of a crime. Substantive privacy rights have not …
Innocence, Privacy, And Targeting In Fourth Amendment Jurisprudence, Sherry F. Colb
Innocence, Privacy, And Targeting In Fourth Amendment Jurisprudence, Sherry F. Colb
Cornell Law Faculty Publications
No abstract provided.
Race And The Decision To Detain A Suspect, Sheri Johnson
Race And The Decision To Detain A Suspect, Sheri Johnson
Cornell Law Faculty Publications
No abstract provided.
Recent Development, Constitutional Law: Protection Against Illegal Search And Seizure--Blackie's House Of Beef, Inc. V. Castillo, No. 79-1057 & 79-2358 (D.C. Cir. July 22, 1981), Stephen James Anaya
Recent Development, Constitutional Law: Protection Against Illegal Search And Seizure--Blackie's House Of Beef, Inc. V. Castillo, No. 79-1057 & 79-2358 (D.C. Cir. July 22, 1981), Stephen James Anaya
Publications
No abstract provided.
Searches Without Warrants, Jerold H. Israel
Searches Without Warrants, Jerold H. Israel
Book Chapters
My primary area of concentration today is the search made without a warrant. Studies indicate that 95 percent or more of all searches are without warrants. It is quite understandable, then, that most of the search-and-seizure litigation concerns the validity of searches without warrants.
Criminal Law And Procedure, Henry Paul Monaghan
Criminal Law And Procedure, Henry Paul Monaghan
Faculty Scholarship
§12.1 Introduction. The recent decisions of the United States Supreme Court in the area of criminal procedure have begun to have a considerable impact upon litigation in the Massachusetts courts; indeed, for at least the second successive year the major emphasis of the Supreme Judicial Court's criminal law opinions centered upon considerations of "criminal due process." On the whole, the Court demonstrated an admirable concern for protecting the requirements of a fair trial. However, in at least two significant areas its decisions are open to considerable question: (1) in a series of opinions the Court confined the admittedly unclear …
Recent Decision Note, Thomas L. Shaffer
Recent Decision Note, Thomas L. Shaffer
Journal Articles
Petitioner was arrested without a warrant by a federal narcotics agent. Sole justification for the arrest, pursuant to the Narcotics Control Act of 1956, was information from a paid informer of the Narcotics Bureau who had proved reliable during six months of association with arresting officers. The informer's description of the petitioner, including dress, baggage, and manner of walking, and his prediction of the petitioner's time of arrival at the point of arrest, were detailed and accurate. The arresting officers searched petitioner immediately after the arrest and seized narcotics and implements used in narcotics addiction. At trial petitioner moved to …