Law Commons^™

Eavesdropping, The Fourth Amendment, And The Common Law (Of Eavesdropping), Donald A. Dripps

William & Mary Bill of Rights Journal

This Article addresses two of the most momentous and controversial issues raised by the Fourth Amendment. These issues are closely related but distinct. First, is eavesdropping a “search” subject to the Fourth Amendment? Second, are Fourth Amendment “searches” limited to the interests against physical intrusion protected by the common-law torts of trespass and false arrest?

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Remarkably, the debate about the Fourth Amendment, the common law, and eavesdropping has almost completely ignored the common law of eavesdropping. This Article is the first to consider the Fourth Amendment in light of an in-depth examination of the common law’s prohibition of …

The Fourth Amendment's Constitutional Home, Gerald S. Dickinson

William & Mary Bill of Rights Journal

The home enjoys omnipresent status in American constitutional law. The Bill of Rights, peculiarly, has served as the central refuge for special protections to the home. This constitutional sanctuary has elicited an intriguing textual and doctrinal puzzle. A distinct thread has emerged that runs through the first five amendments delineating the home as a zone where rights emanating from speech, smut, gods, guns, soldiers, searches, sex, and self-incrimination enjoy special protections. However, the thread inexplicably unravels upon arriving at takings. There, the constitutional text omits and the Supreme Court’s doctrine excludes a special zone of safeguards to the home. This …

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, …

Geofence Warrants: Geolocating The Fourth Amendment, A. Reed Mcleod

William & Mary Bill of Rights Journal

This Note begins by focusing on the technology and procedure of geofence warrants in Part I. Because an understanding of both the technology and procedure is ultimately required to make any headway in later legal analysis, this step is necessary. The heart of the legal analysis is undertaken in Parts II and III.

In Part II, this Note argues that law enforcement requests for location data require a warrant: either because of the expectation of privacy in location data proposed by cases such as Carpenter v. United States or because some courts have found that Carpenter's holding must mean …

"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen J. Pita Loor

William & Mary Journal of Race, Gender, and Social Justice

The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment …

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.

The Common Law Endures In The Fourth Amendment, George C. Thomas Iii

William & Mary Bill of Rights Journal

The text of the Fourth Amendment provides no guidance about what makes a search unreasonable or when warrants are required to make a search reasonable. The Supreme Court has had to craft a doctrine based on intuition, policy goals, and halfhearted stabs at history. This Article argues that the Court’s Fourth Amendment doctrine is stable when it roughly tracks the eighteenth-century common law protection of property, privacy, and liberty. When the Court has sought to provide more protection than the common law provided, the result has been an erratic doctrine that has gradually receded almost back to the common law …

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. …

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

William & Mary Bill of Rights Journal

We finally have a federal ‘test case.’ In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age. The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher. This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious.

As for ambition, the Court …

Feeding The Machine: Policing, Crime Data, & Algorithms, Elizabeth E. Joh

William & Mary Bill of Rights Journal

No abstract provided.

The Fourth Amendment Disclosure Doctrines, Monu Bedi

William & Mary Bill of Rights Journal

The third party and public disclosure doctrines (together the “disclosure doctrines”) are long-standing hurdles to Fourth Amendment protection. These doctrines have become increasingly relevant to assessing the government’s use of recent technologies such as data mining, drone surveillance, and cell site location data. It is surprising then that both the Supreme Court and scholars, at times, have associated them together as expressing one principle. It turns out that each relies on unique foundational triggers and does not stand or fall with the other. This Article tackles this issue and provides a comprehensive topology for analyzing the respective contours of each …

Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal

William & Mary Bill of Rights Journal

In at least two recent cases, courts have rejected service providers’ capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular third-party litigant could not. In the situations presented by the recent cases, by …

Pricing The Fourth Amendment, Miriam H. Baer

William & Mary Law Review

Critics have long decried the Fourth Amendment’s lack of an adequate remedy to secure its compliance. Neither the exclusionary rule nor the threat of civil liability deters police misconduct, leaving scholars to cast about for alternative measures. The emphasis on penalties, however, overlooks a different problem: detection. Because of policing’s fast-paced nature, even so-called “flagrant” Fourth Amendment violations trigger insufficient liability due to low probabilities of detection.

This Article addresses this problem by drawing on the Pigouvian tax literature. The Pigouvian tax—sometimes referred to as a “corrective tax”—is a pricing instrument imposed by regulators in an amount equal to the …

Regulating Drones Under The First And Fourth Amendments, Marc Jonathan Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai

William & Mary Law Review

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September 2015. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Given UAV utility and cost-effectiveness over a vast range of tasks, however, widespread commercial use ultimately seems certain. Consequently, it is imperative to understand …

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.

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

William & Mary Law Review

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between law-enforcement investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited resources to develop countermeasures, law enforcement officers will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game-theoretic model that shows that when law-enforcement investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

Binary Searches And The Central Meaning Of The Fourth Amendment, Lawrence Rosenthal

William & Mary Bill of Rights Journal

No abstract provided.

Deadly Drones, Due Process, And The Fourth Amendment, William Funk

William & Mary Bill of Rights Journal

No abstract provided.

Administrative Searches, Technology And Personal Privacy, Russell L. Weaver

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

William & Mary Bill of Rights Journal

No abstract provided.

Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports

William & Mary Bill of Rights Journal

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 the Court’s recent decision …

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 …

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.

The Content/Envelope Distinction In Internet Law, Matthew J. Tokson

William & Mary Law Review

Whether a component of an Internet communication is classified as "content" or "envelope" information determines in large part the privacy protection it receives under constitutional and statutory law. Courts and Internet law scholars have yet to offer a means of determining the content/envelope status of unique aspects of Internet communications-from email subject lines to website URLs. As a result, data with the potential to expose every website, every Internet file downloaded, and every email sent by an Internet user may be unprotected under current law.

This Article develops a legal framework for distinguishing content from envelope information in unique areas …

Sense-Enhanced Searches And The Irrelevance Of The Fourth Amendment, David E. Steinberg

William & Mary Bill of Rights Journal

No abstract provided.