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Full-Text Articles in Law
Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion For Terry Stops Based On Vague Or Discrepant Suspect Descriptions, Caroline E. Lewis
Fourth Amendment Infringement Is Afoot: Revitalizing Particularized Reasonable Suspicion For Terry Stops Based On Vague Or Discrepant Suspect Descriptions, Caroline E. Lewis
William & Mary Law Review
In Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. The resulting “Terry stop” created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. The officer need only have “reasonable suspicion supported by articulable facts” based on the circumstances and the officer’s policing “experience that criminal activity may be afoot.” Reasonable suspicion is—by design—a broad standard, deferential to police officers’ judgment. Law enforcement officers …
Imposing A Daily Burden On Thousands Of Innocent Citizens: The Supreme Court Unnecessarily Limited Motorists' Fourth Amendment Rights In Kansas V. Glover, George M. Dery
William & Mary Journal of Race, Gender, and Social Justice
This Article analyzes Kansas v. Glover, in which the Supreme Court ruled that an officer could stop a vehicle owned by a person having a revoked license on the assumption that the owner was currently driving the vehicle. This work examines the concerns created by Glover’s ruling. This Article asserts that, in creating its new rule enabling police to stop a motorist without first confirming his or her identity, the Court based its holding on the existence of two facts, thus effectively changing its traditional “totality of the circumstances” analysis for reasonable suspicion to a categorical rule. Further, …
Making The Impractical, Practical: A Modest And Overdue Approach To Reforming Fourth Amendment Consent Search Doctrine, Augustine P. Manga
Making The Impractical, Practical: A Modest And Overdue Approach To Reforming Fourth Amendment Consent Search Doctrine, Augustine P. Manga
William & Mary Journal of Race, Gender, and Social Justice
At some point in your life, you may have a personal encounter with a police officer. During that moment, you may feel utterly powerless, especially if you do not know your rights. One important right that police are not required to inform people of is their right to deny an officer’s request to search their property. Forty-eight years ago, the Supreme Court made its position clear in Schneckloth v. Bustamonte that requiring law enforcement to provide citizens with this warning would be “thoroughly impractical.” Since then, the relationship between law enforcement and society—especially communities of color—has gradually deteriorated, and states …
Frankly, It's A Mess: Requiring Courts To Transparently "Redline" Affidavits In The Face Of Franks Challenges, Diana Bibb
William & Mary Bill of Rights Journal
Part I provides a brief overview of the Fourth Amendment, probable cause, and the exclusionary rule. Part II discusses Franks v. Delaware, the development of the challenge’s framework, and subsequent expansions to the doctrine made by the lower courts. Next, Part III argues that, despite the aforementioned expansions, courts have consistently weakened Franks. Notably, the Supreme Court refuses to consider Franks issues, including the multitude of splits over which standard of review is applicable. Moreover, some circuits have developed their own minute rules that have chiseled away at the effectiveness of a Franks challenge. Part IV proposes that …
Fitbit Data And The Fourth Amendment: Why The Collection Of Data From A Fitbit Constitutes A Search And Should Require A Warrant In Light Of Carpenter V. United States, Alxis Rodis
William & Mary Bill of Rights Journal
No abstract provided.
Taking Shelter Under The Fourth Amendment: The Constitutionality Of Policing Methods At State-Sponsored Natural Disaster Shelters, Kyle M. Wood
William & Mary Law Review
No abstract provided.
A Tale Of Two Clauses: Search And Seizure, Establishment Of Religion, And Constitutional Reason, Perry Dane
A Tale Of Two Clauses: Search And Seizure, Establishment Of Religion, And Constitutional Reason, Perry Dane
William & Mary Bill of Rights Journal
This Article dissects two developments in widely separate areas of American constitutional law—the “reasonable expectation of privacy” test for the Fourth Amendment’s Search and Seizure Clause and the “endorsement” test for the First Amendment’s Establishment Clause. These two stories might seem worlds apart, and they have not previously been systematically examined together. Nevertheless, the Article argues that they have in common at least three important symptoms of our legal culture’s deep malaise. These three phenomena occur in other contexts, too, but they appear with special clarity and a stark cumulative force in the two stories on which this Article focuses. …
Horizontal Cybersurveillance Through Sentiment Analysis, Margaret Hu
Horizontal Cybersurveillance Through Sentiment Analysis, Margaret Hu
William & Mary Bill of Rights Journal
This Essay describes emerging big data technologies that facilitate horizontal cybersurveillance. Horizontal cybersurveillance makes possible what has been termed as “sentiment analysis.” Sentiment analysis can be described as opinion mining and social movement forecasting. Through sentiment analysis, mass cybersurveillance technologies can be deployed to detect potential terrorism and state conflict, predict protest and civil unrest, and gauge the mood of populations and subpopulations. Horizontal cybersurveillance through sentiment analysis has the likely result of chilling expressive and associational freedoms, while at the same time risking mass data seizures and searches. These programs, therefore, must be assessed as adversely impacting a combination …
Obscured By Clouds: The Fourth Amendment And Searching Cloud Storage Accounts Through Locally Installed Software, Aaron J. Gold
Obscured By Clouds: The Fourth Amendment And Searching Cloud Storage Accounts Through Locally Installed Software, Aaron J. Gold
William & Mary Law Review
No abstract provided.
Binary Searches And The Central Meaning Of The Fourth Amendment, Lawrence Rosenthal
Binary Searches And The Central Meaning Of The Fourth Amendment, Lawrence Rosenthal
William & Mary Bill of Rights Journal
No abstract provided.
Seizing A Cell Phone Incident To Arrest: Data Extraction Devices, Faraday Bags, Or Aluminum Foil As A Solution To The Warrantless Cell Phone Search Problem, Adam M. Gershowitz
Seizing A Cell Phone Incident To Arrest: Data Extraction Devices, Faraday Bags, Or Aluminum Foil As A Solution To The Warrantless Cell Phone Search Problem, Adam M. Gershowitz
William & Mary Bill of Rights Journal
No abstract provided.
Administrative Searches, Technology And Personal Privacy, Russell L. Weaver
Administrative Searches, Technology And Personal Privacy, Russell L. Weaver
William & Mary Bill of Rights Journal
No abstract provided.
Privacy And Consent Over Time: The Role Of Agreement In Fourth Amendment Analysis, Christine Jolls
Privacy And Consent Over Time: The Role Of Agreement In Fourth Amendment Analysis, Christine Jolls
William & Mary Law Review
No abstract provided.
The Real Rules Of "Search" Interpretations, Luke M. Milligan
The Real Rules Of "Search" Interpretations, Luke M. Milligan
William & Mary Bill of Rights Journal
The Supreme Court tells us that a Fourth Amendment “search” is a matter of “reasonable expectations of privacy.” Scholars meanwhile debate “search” on the axes of value, doctrine, institutionalism, interpretation, and judicial politics. Yet neither prevailing judicial doctrine nor normative academic discourse has had much impact on the Court’s actual “search” interpretations. This article suggests that this static between “paper” rules and “real” rules (and, more generally, normative prescriptions and judicial decisionmaking) is a function of a deep constraint on the judiciary’s capacity to form “search” doctrine in free accordance with evolving juridical and policy norms. This constraint is one …
Unintentional Levels Of Force In §1983 Excessive Force Claims, Nathan R. Pittman
Unintentional Levels Of Force In §1983 Excessive Force Claims, Nathan R. Pittman
William & Mary Law Review
No abstract provided.
The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin Henning
The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin Henning
William & Mary Law Review
Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles—context, parental authority, and the minor’s capacity—that weave together children’s rights cases. She argues that parental authority too often prevails over children’srights, even when context and demonstrated capacity would supportaffirmation of those rights. Context involves both the physical settingin which Fourth Amendment protections are sought and the nature of the privacy interest at …
The Death Of Suspicion, Fabio Arcila Jr.
The Death Of Suspicion, Fabio Arcila Jr.
William & Mary Law Review
At the nation’s founding, search warrants and the concept of suspicion were well entrenched as a means of limiting governmental search power. This tradition largely explains why today’s Fourth Amendment law includes two foundational black letter rules: the presumptive warrant requirement and the presumptive suspicion requirement. Unfortunately, neither of these rules is correct. Certainly they have historical support, especially in the common law. But whether they reflect the totality of our historic experience is questionable, especially when civil search practices are considered. More importantly, modern developments—such as urban life and technological advancements, the rise of the regulatory state, and post-9/11 …
Georgia V. Randolph, The Red-Headed Stepchild Of An Ugly Family: Why Third Party Consent Search Doctrine Is An Unfortunate Fourth Amendment Development That Should Be Restrained, Aubrey H. Brown
William & Mary Bill of Rights Journal
No abstract provided.
Sense-Enhanced Searches And The Irrelevance Of The Fourth Amendment, David E. Steinberg
Sense-Enhanced Searches And The Irrelevance Of The Fourth Amendment, David E. Steinberg
William & Mary Bill of Rights Journal
No abstract provided.
Storming The Castle To Save The Children: The Ironic Costs Of A Child Welfare Exception To The Fourth Amendment, Doriane Lambelet Coleman
Storming The Castle To Save The Children: The Ironic Costs Of A Child Welfare Exception To The Fourth Amendment, Doriane Lambelet Coleman
William & Mary Law Review
No abstract provided.
Righteous Shooting, Unreasonable Seizure? The Relevance Of An Officer's Pre-Seizure Conduct In An Excessive Force Claim, Aaron Kimber
Righteous Shooting, Unreasonable Seizure? The Relevance Of An Officer's Pre-Seizure Conduct In An Excessive Force Claim, Aaron Kimber
William & Mary Bill of Rights Journal
No abstract provided.
Affecting Eternity: The Court's Confused Lesson In Board Of Education V. Earls, George M. Dery Iii
Affecting Eternity: The Court's Confused Lesson In Board Of Education V. Earls, George M. Dery Iii
William & Mary Bill of Rights Journal
In Board of Education v. Earls, the US. Supreme Court found the random drug testing of schoolchildren who participated in extracurricular activities to be reasonable under the Fourth Amendment. In this Article, Professor Dery argues that this latest extension of the special needs doctrine is both patronizing to student privacy interests and inconsistent with the Court's previous limitation of suspicionless searches in New Jersey v. T.L.O. and Chandler v. Miller. Professor Dery criticizes the Court's Earls decision as a confused lesson in constitutional law, abandoning the very fundamentals of the Fourth Amendment.
Can The "Public Interest" Justify Non-Consensual Searches Of Homes In Bankruptcy Cases?, A. Mechele Dickerson
Can The "Public Interest" Justify Non-Consensual Searches Of Homes In Bankruptcy Cases?, A. Mechele Dickerson
William & Mary Bill of Rights Journal
No abstract provided.
Bits And Bytes: The Carnivore Initiative And The Search And Seizure Of Electronic Mail, Sandy D. Hellums
Bits And Bytes: The Carnivore Initiative And The Search And Seizure Of Electronic Mail, Sandy D. Hellums
William & Mary Bill of Rights Journal
This Note examines the application of Fourth Amendment search and seizure doctrines to the interception of electronic mail within the context of the FBI Carnivore initiative. The author argues that the traditional law of electronic surveillance's understanding of communication is outdated and never contemplated new technologies like Carnivore and their far reaching implications. Consequently, the author argues, that to protect our long-understood expectations of privacy, the search and seizure of electronic documents should be analyzed under the traditional papers analysis. To do so, the Supreme Court would afford the interception electronic documents the highest form of constitutional protect available under …
Individualized School Searches And The Fourth Amendment: What's A School District To Do?, Jason E. Yearout
Individualized School Searches And The Fourth Amendment: What's A School District To Do?, Jason E. Yearout
William & Mary Bill of Rights Journal
As high-profile incidents of school violence appear to become more frequent and severe, public perception has deteriorated to the point where many citizens believe that schools are unsafe and administrators lack the power to control student activity. In their efforts to promote a safe learning environment, many school administrators have attempted to create strict guidelines concerning the power of school personnel to prevent illegal and unsafe activity from taking place at school. However, as administrators devise the rules by which to implement these standards, they are given little guidance by the Supreme Court regarding the application of the Fourth Amendment …
The Long Distance Remand: Florida V. Bostick And The Re-Awakened Bus Search Battlefront In The War On Drugs, Dennis J. Callahan
The Long Distance Remand: Florida V. Bostick And The Re-Awakened Bus Search Battlefront In The War On Drugs, Dennis J. Callahan
William & Mary Law Review
No abstract provided.
Personal Does Not Always Equal "Private": The Constitutionality Of Requiring Dna Samples From Convicted Felons And Arrestees, Martha L. Lawson
Personal Does Not Always Equal "Private": The Constitutionality Of Requiring Dna Samples From Convicted Felons And Arrestees, Martha L. Lawson
William & Mary Bill of Rights Journal
In the past couple of decades, the use of DNA testing has become a major debate in criminal law. Many Americans have called for regular use of DNA testing in criminal cases, particularly in the aftermath of the O.J. Simpson murder trial. While these tests can potentially help better ensure justice conducting DNA tests raises fundamental personal privacy concerns. This Note analyzes the development of DNA testing throughout the United States, giving a historical account of how the courts and local police departments have dealt with this testing Finally, the Note argues that the government's interest in mandatory testing of …
Wake Up And Smell The Contraband: Why Courts That Do Not Find Probable Cause Based On Odor Alone Are Wrong, Michael A. Sprow
Wake Up And Smell The Contraband: Why Courts That Do Not Find Probable Cause Based On Odor Alone Are Wrong, Michael A. Sprow
William & Mary Law Review
No abstract provided.
Choosing Perspectives In Criminal Procedure, Ronald J. Bacigal
Choosing Perspectives In Criminal Procedure, Ronald J. Bacigal
William & Mary Bill of Rights Journal
In this Article, Professor Bacigal examines the Supreme Court's use of various perspectives in examining the reasonableness of searches and seizures. Although the Supreme Court purports to rely on a consistent method of constitutional analysis when rendering decisions on Fourth Amendment issues, the case law in this area indicates that the Court is influenced sometimes by the citizen's perspective, sometimes by the police officers' perspective, and sometimes by the perspective of the hypothesized reasonable person.
After identifying the role of perspectives in a number of seminal Court decisions, Professor Bacigal discusses the benefits and limitations of the Court's reliance on …
Ad Hoc Adjudication: People V. Champion, Another Confusing Element In The Turmoil Following Minnesota V. Dickerson, Audra A. Dial
Ad Hoc Adjudication: People V. Champion, Another Confusing Element In The Turmoil Following Minnesota V. Dickerson, Audra A. Dial
William & Mary Law Review
No abstract provided.