Law Commons^™

Mary D. Branch, Plaintiff-Appellant, V. Officer Timothy Gorman, Et Al., Defandants-Appellants: Brief Of Appellant, Patricia E. Roberts, Pamela Palmer, Alexa Roggenkamp, Tillman J. Breckenridge, Robert M. Luck Iii

Appellate and Supreme Court Clinic

No abstract provided.

Texting While Driving Meets The Fourth Amendment: Deterring Both Texting And Warrantless Cell Phone Searches, Adam M. Gershowitz

Faculty Publications

Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. …

Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert

Articles

Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s …

New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo

All Faculty Scholarship

No abstract provided.

Brady, Trust, And Error, Samuel R. Wiseman

Scholarly Publications

No abstract provided.

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 …

The Fourth Amendment, Ethan Payne

A with Honors Projects

This projects explains the fourth amendment using skits and a PowerPoint presentation.

What Is The Essential Fourth Amendment?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In More Essential Than Ever: The Fourth Amendment in the Twenty-First Century, Stephen Schulhofer provides a strong, popularized brief for interpreting the Fourth Amendment as a command that judicial review precede all non-exigent police investigative actions that are more than minimally intrusive. This review points out a few places where Schulhofer may push the envelope too far or not far enough, but concludes that More Essential Than Ever is a welcome reminder for scholars and the public at large that the Fourth Amendment is a fundamental bulwark of constitutional jurisprudence and deserves more respect than the Supreme Court has given …

A Unified Theory For Seizures Of The Person, Ronald J. Bacigal

Law Faculty Publications

Perhaps there is something about the final stages of their careers that causes people to resolve conflicts by reconciling the seemingly irreconcilable. Albert Einstein spent the last days of his career searching for a unified field theory that would eliminate the contradictory laws governing relativity and quantum mechanics. Stephen Hawking has taken up this quest which has been renamed a search for the Theory of Everything. On a “slightly” more modest level, I find the later stages of my career drawing me toward formulating a unified theory governing seizures of the person. The challenge is to blend three different tests …

Making The Most Of United States V. Jones In A Surveillance Society: A Statutory Implementation Of Mosaic Theory, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In the Supreme Court's recent decision in United States v. Jones, a majority of the Justices appeared to recognize that under some circumstances aggregation of information about an individual through governmental surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion sometimes called "mosaic theory"-could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements-the issue raised in Jonesbut also with respect to the government's increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This article …

Searching Secrets, Nita A. Farahany

Faculty Scholarship

A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated …

Indecent Exposure: Do Warrantless Searches Of Cell Phones Violate The Fourth Amendment?, Amy Vorenberg

Law Faculty Scholarship

This article argues that searches of student’s cell phone should require a warrant in most circumstances. The amount and personal nature of information on a smart phone warrants special Fourth Amendment protection. This issue is particularly relevant in the public school setting where administrators routinely confiscate phones from students caught using them in school. With more frequency, administrators are looking at the phones, scrolling through text messages and photos, and on some occasions, responding to text messages.

The U.S. Supreme Court in Safford v. Redding, acknowledges the special considerations that school children should be afforded in part because of the …

The Supreme Court's Contemporary Silver Platter Doctrine, David C. Gray, Meagan Cooper, David Mcaloon

Faculty Scholarship

In a line of cases beginning with United States v. Calandra, the Court has created a series of exceptions to the Fourth Amendment exclusionary rule that permit illegally seized evidence to be admitted in litigation forums collateral to criminal trials. This “collateral use” exception allows the government to profit from Fourth Amendment violations in grand jury investigations, civil tax suits, habeas proceedings, immigration removal procedures, and parole revocation hearings. In this essay we argue that these collateral use exceptions raise serious conceptual and practical concerns. The core of our critique is that the collateral use exception reconstitutes a version of …

Warrantless Cell Phone Searches And The 4th Amendment: You Think You Deleted Those Text Messages…But You Have No Idea…, Amanda Brill

Student Works

No abstract provided.

Setting Us Up For Disaster: The Supreme Court's Decision In Terry V. Ohio, Thomas B. Mcaffee

Scholarly Works

No abstract provided.

Advisory Adjudication, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring …

Post-Racialism And Searches Incident To Arrest, Frank Rudy Cooper

Scholarly Works

For 28 years the Court held that an officer's search incident to arrest powers automatically extended to the entire passenger compartment of a vehicle. In 2009, however, the Arizona v. Gant decision held that officers do not get to search a vehicle incident to arrest unless they satisfy (1) the Chimel v. California Court's requirement that the suspect has access to weapons or evanescent evidence therein or (2) the United States v. Rabinowitz Court's requirement that the officer reasonably believe evidence of the crime of arrest will be found therein. While many scholars read Gant as a triumph for civil …

No More Chipping Away: The Roberts Court Uses An Axe To Take Out The Fourth Amendment Exclusionary Rule, Tracey Maclin, Jennifer Rader

UF Law Faculty Publications

This article considers the current status of the Fourth Amendment exclusionary rule under the Roberts Court, as well as what the future holds for the rule. Despite Justice Kennedy’s 2006 declaration that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt,” this Article demonstrates why this is not the case. Kennedy’s statement is noteworthy and has been accorded substantial weight primarily because it was made at a time when it was thought that four Justices (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) were prepared to announce the demise of …

Bringing Clarity To Administrative Search Doctrine: Distinguishing Dragnets From Special Subpopulation Searches, Eve Brensike Primus

Articles

Anyone who has been stopped at a sobriety checkpoint, screened at an international border, scanned by a metal detector at an airport or government building, or drug tested for public employment has been subjected to an administrative search or seizure. Searches of public school students, government employees, and probationers are characterized as administrative, as are business inspections and-increasingly-wiretaps and other searches used in the gathering of national security intelligence. In other words, the government conducts thousands of administrative searches every day. None of these searches requires either probable cause or a search warrant. Instead, courts evaluating administrative searches need only …

No More Chipping Away: The Roberts Court Uses An Axe To Take Out The Fourth Amendment Exclusionary Rule, Tracey Maclin, Jennifer Marie Rader

Faculty Scholarship

This article considers the current status of the Fourth Amendment exclusionary rule under the Roberts Court, as well as what the future holds for the rule. Despite Justice Kennedy’s 2006 declaration that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt,” this Article demonstrates why this is not the case. Kennedy’s statement is noteworthy and has been accorded substantial weight primarily because it was made at a time when it was thought that four Justices (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) were prepared to announce the demise of …

Facebook Fallacies, Geoffrey C. Hazard Jr.

All Faculty Scholarship

No abstract provided.

Gps Tracking And The Fourth Amendment: The New Frontier In Counterterrorism Efforts, German Rozencranc

Student Works

No abstract provided.

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 …

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

Articles

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4

Technological Leap, Statutory Gap, And Constitutional Abyss: Remote Biometric Identification Comes Of Age, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much less the pairing of facial recognition with video surveillance—in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, …

Beyond Law Enforcement: Camreta V. Greene, Child Protection Investigations, And The Need To Reform The Fourth Amendment Special Needs Doctrine, Joshua Gupta-Kagan

Faculty Scholarship

The Fourth Amendment “special needs” doctrine distinguishes between searches and seizures that serve the “normal need for law enforcement” and those that serve some other special need, excusing non-law-enforcement searches and seizures from the warrant and probable cause requirements. The United States Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not around those that threaten important noncriminal constitutional rights.

Child protection investigations illustrate the problem: millions of times each year, state child protection authorities search families' homes and seize children for interviews about alleged maltreatment. Only a minority of these investigations …