Law Commons^™

Brief Of Professors Of Law, Us V. Bergdahl, Joshua E. Kastenberg, Rachel E. Vanlandingham, Geoffrey S. Corn

Faculty Scholarship

When scrutinizing executive actions for unlawful command influence, this Court must account for a president’s immense power over the military. The extant judicial test for unlawful command influence – a violation of due process in the military setting – is a contextual one, and hence must consider the unique and unparalleled authority of the Commander-In-Chief over the military and individual service-members when the president’s actions are at issue. This executive power should also be evaluated in light of its myriad, and historically important, constitutional and statutory constraints – some predating the birth of the United States – that appropriately continue …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin

Faculty Scholarship

This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s …

Fourth Amendment Textualism, Jeffrey Bellin

Faculty Publications

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive Even the justices know they have a problem Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach Unfortunately, no viable alternatives appear on the horizon The justices themselves offer little in the way of a replacement And scholars’ proposals exhibit …

Automated License Plate Readers: The Difficult Balance Of Solving Crime And Protecting Individual Privacy, Lauren Fash

Maryland Law Review Online

No abstract provided.

Location Tracking And Digital Data: Can Carpenter Build A Stable Privacy Doctrine?, Evan H. Caminker

Articles

In Carpenter v United States, the Supreme Court struggled to modernize twentieth-century search and seizure precedents for the “Cyber Age.” Twice previously this decade the Court had tweaked Fourth Amendment doctrine to keep pace with advancing technology, requiring a search warrant before the government can either peruse the contents of a cell phone seized incident to arrest or use a GPS tracker to follow a car’s long-term movements.

Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Josh Gupta-Kagan

Faculty Publications

The Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue ruled in the 1990s and 2000s that T.L.O. applied to SRO-involved …

Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, …

On The Fringes Of The Fourth Amendment: Changing Reasonableness At The Border, Isabelle Hutchinson

Student Scholarship

The protection of the U.S.-Mexico border has become a priority for politicians and government officials alike. However, the protection of people􀂶s rights near the border has been largely ignored. Due to the Fourth Amendment􀂶s border search exception, customs officials and border patrol agents may use lower standards for suspicion in conducting searches and seizures of people in the border region. In determining whether a search or seizure is reasonable, the Fourth Amendment requires balancing of the degree to which the government intrudes on a person􀂶s privacy against the government􀂶s interest in conducting the search. This Article analyzes the changes in …

The Public Information Fallacy, Woodrow Hartzog

Faculty Scholarship

The concept of privacy in “public” information or acts is a perennial topic for debate. It has given privacy law fits. People struggle to reconcile the notion of protecting information that has been made public with traditional accounts of privacy. As a result, successfully labeling information as public often functions as a permission slip for surveillance and personal data practices. It has also given birth to a significant and persistent misconception — that public information is an established and objective concept.

In this article, I argue that the “no privacy in public” justification is misguided because nobody knows what “public” …

Custodial Compulsion, Kyron J. Huigens

Faculty Articles

In cases that fall under Miranda v Arizona, police interrogators not only give a suspect reasons to confess; they also suggest that the suspect ought to confess. In doing so, interrogators effectively invoke the Wigmorean duty of a citizen to produce any evidence he has in his possession, including his own confession. That is, they invoke the duty against which the Self Incrimination Clause stands, so that the clause is applicable to police interrogations, and is violated where it is not waived. This means that “a Miranda violation” is a violation of the Self Incrimination Clause in the field, just …

Right Result, Wrong Reason: Why The Intent Requirement In Florida V. Jardines Trespasses On The Clarity Of The Fourth Amendment, Heather Baxter

Faculty Scholarship

No abstract provided.

Byrd V United States: Unauthorized Drivers Of Rental Cars Have Fourth Amendment Rights? Not As Evident As It Seems, Tracey Maclin

Faculty Scholarship

No discerning student of the Supreme Court would contend that Justice Anthony Kennedy broadly interpreted the Fourth Amendment during his thirty years on the Court. His majority opinions in Maryland v. King, Drayton v. United States and his willingness to join the three key sections of Justice Scalia’s opinion in Hudson v. Maryland, which held that suppression is never a remedy for knock-and-announce violations, are just a few examples of Justice Kennedy’s narrow view of the Fourth Amendment.

In light of his previous votes in search and seizure cases, surprisingly Justice Kennedy, in what would be his final Fourth Amendment …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

Implicit Racial Bias And Students' Fourth Amendment Rights, Jason P. Nance

UF Law Faculty Publications

Tragic acts of school violence such as what occurred in Columbine, Newtown, and, more recently, in Parkland and Santa Fe, provoke intense feelings of anger, fear, sadness, and helplessness. Understandably, in response to these incidents (and for other reasons), many schools have intensified the manner in which they monitor and control students. Some schools rely on combinations of security measures such as metal detectors; surveillance cameras; drug-sniffing dogs; locked and monitored gates; random searches of students’ belongings, lockers, and persons; and law enforcement officers. Not only is there little empirical evidence that these measures actually make schools safer, but overreliance …

Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin

UF Law Faculty Publications

This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s …

The Value Of Deviance: Understanding Contextual Privacy, Timothy Casey

Faculty Scholarship

Recent decisions by the Supreme Court in Carpenter v. United States and the Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corporation signal a shift in the traditional understanding of what exactly is protected by a privacy interest. Carpenter distinguished between a police officer’s observation of a suspect’s location and a perpetual catalogue of a person’s movements obtained through cell site location information (CSLI). The pervasive and vast quantity of information from CSLI exposed a protected privacy interest. In Rosenbach, the Illinois Supreme Court found the unique and personal quality of biometric information meant that consent and disclosure requirements …

Immigration Detainers, Local Discretion, And State Law's Historical Constraints, Kate Evans

Faculty Scholarship

No abstract provided.

Functional Equivalence And Residual Rights Post-Carpenter: Framing A Test Consistent With Precedent And Original Meaning, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The Carpenter Court held that warrantless access to seven or more days of cell site location information (CSLI) constitutes a violation of the reasonable expectation of privacy that individuals have in the whole of their physical movements. But the grounds on which the Court drew a line characterize all sorts of digital records—including those at issue in Miller and Smith, belying the majority’s claim that the decision leaves third-party doctrine intact. Instead of avoiding Katz’s pitfalls, moreover, the Court emphasized voluntary assumption of risk, doubling down on the subjective nature of judicial determination. The decision will likely lead to …

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon

Faculty Scholarship

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

The Exclusionary Rule In The Age Of Blue Data, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

In Herring v. United States, Chief Justice John Roberts reframed the Supreme Court’s understanding of the exclusionary rule: “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” The open question remains: how can defendants demonstrate sufficient recurring or systemic negligence to warrant exclusion? The Supreme Court has never answered the question, although the absence of systemic or recurring problems has figured prominently in two recent exclusionary rule decisions. Without the ability to document recurring failures, or patterns of police misconduct, courts can dismiss …