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The Positive Law Model Of The Fourth Amendment, William Baude, James Y. Stern
The Positive Law Model Of The Fourth Amendment, William Baude, James Y. Stern
James Y. Stern
For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused, but viable alternatives have been slow to emerge. This Article supplies one.
We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection …
Does The Fourth Amendment Apply To The Armed Forces?, Fredric I. Lederer, Frederic L. Borch
Does The Fourth Amendment Apply To The Armed Forces?, Fredric I. Lederer, Frederic L. Borch
Fredric I. Lederer
No abstract provided.
The Right To Remain Armed, Jeffrey Bellin
The Right To Remain Armed, Jeffrey Bellin
Jeffrey Bellin
The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia, and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta, and Cleveland.
These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could …
Crime-Severity Distinctions And The Fourth Amendment: Reassessing Reasonableness In A Changing World, Jeffrey Bellin
Crime-Severity Distinctions And The Fourth Amendment: Reassessing Reasonableness In A Changing World, Jeffrey Bellin
Jeffrey Bellin
A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine—crime severity.
The Supreme Court emphasizes that “reasonableness” is the “touchstone” of Fourth Amendment analysis. Yet, in evaluating contested searches and seizures, current Fourth Amendment doctrine ignores a key determinant of reasonableness, the crime under investigation. As a result, an invasive search of a suspected murderer …
Franks V. Delaware: A Proposed Interpretation And Application, Peter A. Alces
Franks V. Delaware: A Proposed Interpretation And Application, Peter A. Alces
Peter A. Alces
No abstract provided.
The Iphone Meets The Fourth Amendment, Adam M. Gershowitz
The Iphone Meets The Fourth Amendment, Adam M. Gershowitz
Adam M. Gershowitz
Under the search incident to arrest doctrine, police may search the entire body and immediate grabbing space of an arrestee, including the contents of all containers, without any probable cause. Because almost all traffic infractions are arrestable offenses, police have enormous opportunity to conduct such searches incident to arrest. In the near future, these already high-stakes searches will become even more important because millions of drivers will not only possess containers that hold a few scattered papers, such as wallets or briefcases, but also iPhones—capable of holding tens of thousands of pages of personal information. If current Fourth Amendment jurisprudence …
Why Arizona V. Gant Is The Wrong Solution To The Warrantless Cell Phone Search Problem, Adam M. Gershowitz
Why Arizona V. Gant Is The Wrong Solution To The Warrantless Cell Phone Search Problem, Adam M. Gershowitz
Adam M. Gershowitz
No abstract provided.
Wina Morning News With Rick And Jane: Interview With Adam Gershowitz, Rick Daniels, Jane Foy, Adam M. Gershowitz
Wina Morning News With Rick And Jane: Interview With Adam Gershowitz, Rick Daniels, Jane Foy, Adam M. Gershowitz
Adam M. Gershowitz
No abstract provided.
Searching Cell Phones Incident To Arrest: Can Courts And Legislatures Impose Limits On A Bright Line Rule?, Adam M. Gershowitz
Searching Cell Phones Incident To Arrest: Can Courts And Legislatures Impose Limits On A Bright Line Rule?, Adam M. Gershowitz
Adam M. Gershowitz
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
Adam M. Gershowitz
No abstract provided.
Symposium: Surprising Unanimity, Even More Surprising Clarity, Adam M. Gershowitz
Symposium: Surprising Unanimity, Even More Surprising Clarity, Adam M. Gershowitz
Adam M. Gershowitz
No abstract provided.
David Leon Riley V. State Of California And United States Of America V. Brima Wurie: Brief Of Amici Curiae Criminal Law Professors In Support Of Petitioner Riley And Respondent Wurie, Adam M. Gershowitz, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan
David Leon Riley V. State Of California And United States Of America V. Brima Wurie: Brief Of Amici Curiae Criminal Law Professors In Support Of Petitioner Riley And Respondent Wurie, Adam M. Gershowitz, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan
Adam M. Gershowitz
No abstract provided.
Court Issues Sweeping Digital Privacy Ruling In Mass. Cell Phone Case, Anthony Brooks, Meghna Chakrabarti, Matthew Segal, Adam M. Gershowitz
Court Issues Sweeping Digital Privacy Ruling In Mass. Cell Phone Case, Anthony Brooks, Meghna Chakrabarti, Matthew Segal, Adam M. Gershowitz
Adam M. Gershowitz
No abstract provided.
Administrative Searches, Technology And Personal Privacy, Russell L. Weaver
Administrative Searches, Technology And Personal Privacy, Russell L. Weaver
Russell L. Weaver
No abstract provided.
The Real Rules Of "Search" Interpretations, Luke M. Milligan
The Real Rules Of "Search" Interpretations, Luke M. Milligan
Luke Milligan
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 …