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Articles 1 - 11 of 11
Full-Text Articles in Law
Veteran Police Officers And Three-Dollar Steaks: The Subjective/Objective Dimensions Of Probable Cause And Reasonable Suspicion, Kit Kinports
Kit Kinports
This Article addresses two issues surrounding probable cause and reasonable suspicion that test the line between subjective and objective standards in Fourth Amendment jurisprudence: the extent to which a particular police officer’s training and experience ought to be considered in measuring probable cause and reasonable suspicion, and the relevance of the officer’s subjective beliefs about the presence of a weapon in assessing the reasonable suspicion required to justify a frisk. Although both questions have split the lower courts and remain unresolved by the Supreme Court, the majority of courts treat them inconsistently, recognizing the importance of an officer’s training, experience, …
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 …
Criminal Procedure In Perspective, Kit Kinports
Criminal Procedure In Perspective, Kit Kinports
Kit Kinports
This Article attempts to situate the Supreme Court's constitutional criminal procedure jurisprudence in the academic debates surrounding the reasonable person standard, in particular, the extent to which objective standards should incorporate a particular individual's subjective characteristics. Analyzing the Supreme Court's search and seizure and confessions opinions, I find that the Court shifts opportunistically from case to case between subjective and objective tests, and between whose point of view - the police officer's or the defendant's - it views as controlling. Moreover, these deviations cannot be explained either by the principles the Court claims underlie the various constitutional provisions at issue …
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 …
Dog Sniffs And The Fourth Amendment, Robert Bloom
Dog Sniffs And The Fourth Amendment, Robert Bloom
Robert M. Bloom
No abstract provided.
Justice Scalia’S Fourth Amendment: Text, Context, Clarity, And Occasional Faint-Hearted Originalism, Timothy C. Macdonnell
Justice Scalia’S Fourth Amendment: Text, Context, Clarity, And Occasional Faint-Hearted Originalism, Timothy C. Macdonnell
Timothy C. MacDonnell
Since joining the United States Supreme Court in 1986, Justice Scalia has been one of the most prominent voices on the Fourth Amendment, having written twenty majority opinions, twelve concurrences and eight dissents on the topic. Justice Scalia’s Fourth Amendment opinions have had a significant effect on the Court’s jurisprudence relative to the Fourth Amendment. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision for how technology’s encroachment on privacy should be addressed; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil …
Western Union, The American Federation Of Labor, Google, And The Changing Face Of Privacy Advocates, Wesley Oliver
Western Union, The American Federation Of Labor, Google, And The Changing Face Of Privacy Advocates, Wesley Oliver
Wesley M Oliver
No abstract provided.
Continuing The March Toward Reasonableness: Last Term's Fourth Amendment Decisions, Lawrence Rosenthal
Continuing The March Toward Reasonableness: Last Term's Fourth Amendment Decisions, Lawrence Rosenthal
Lawrence Rosenthal
No abstract provided.