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Full-Text Articles in Law
Law School News: 'Unmatched Opportunities' 12-16-2020, Michael M. Bowden
Law School News: 'Unmatched Opportunities' 12-16-2020, Michael M. Bowden
Life of the Law School (1993- )
No abstract provided.
Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss: Dyer V. Smith, Brandon Hasbrouck, Katherine Mims Crocker
Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss: Dyer V. Smith, Brandon Hasbrouck, Katherine Mims Crocker
Scholarly Articles
This case illustrates how the First Amendment functions as an essential backstop to Fourth Amendment freedoms—and vice versa. As revealed by the national response to the killing of George Floyd and so many similar injustices, the ability to record encounters with government representatives is critical to preserving civil rights, and especially the right to avoid excessive force. The public only “became aware of the circumstances surrounding George Floyd’s death because citizens standing on a sidewalk exercised their First Amendment rights and filmed a police officer kneeling on Floyd’s neck until he died.” Index Newspapers LLC v. U.S. Marshals Serv., …
Rwu Law News: The Newsletter Of Roger Williams University School Of Law 12-2020, Barry Bridges, Michael M. Bowden, Nicole Dyszlewski, Louisa Fredey
Rwu Law News: The Newsletter Of Roger Williams University School Of Law 12-2020, Barry Bridges, Michael M. Bowden, Nicole Dyszlewski, Louisa Fredey
Life of the Law School (1993- )
No abstract provided.
Carpenter V. United States: Brief Of Scholars Of Criminal Procedure And Privacy As Amici Curiae In Support Of Petitioner, Andrew Ferguson
Carpenter V. United States: Brief Of Scholars Of Criminal Procedure And Privacy As Amici Curiae In Support Of Petitioner, Andrew Ferguson
Articles in Law Reviews & Other Academic Journals
Amici curiae are forty-two scholars engaged in significant research and/or teaching on criminal procedure and privacy law. This brief addresses issues that are within amici’s particular areas of scholarly expertise. They have a shared interest in clarifying the law of privacy in the digital era, and believe that a review of scholarly literature on the topic is helpful to answering the question in this case. This brief is co-authored by Harry Sandick, Kathrina Szymborski, & Jared Buszin of Patterson Belknap Webb & Tyler LLP.Carpenter v. United States presents an opportunity to reconsider the Fourth Amendment in the digital age. Cell …
Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson
Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson
Articles in Law Reviews & Other Academic Journals
What is the constitutional significance of the proverbial "keep off the grass" sign? This question — asked by curmudgeonly neighbors everywhere — has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding — and control over — access to property, "the people" may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education …
The Internet Of Things And The Fourth Amendment Of Effects, Andrew Ferguson
The Internet Of Things And The Fourth Amendment Of Effects, Andrew Ferguson
Articles in Law Reviews & Other Academic Journals
By 2020 there will be billions of “things” connected through the “Internet of Things.” These smart devices built within our homes, cars, smartphones, clothing, and accessories present new possibilities for technological surveillance for law enforcement. This network of smart devices also poses a new challenge for a Fourth Amendment built around “effects.” The constitutional language protecting “persons, houses, papers, and effects” from unreasonable searches and seizures must confront this change. This article addresses how a Fourth Amendment built on old-fashioned “effects” can address a new world when things are no longer just inactive, static objects, but objects that create and …
Cutting Cops Too Much Slack, Wayne A. Logan
Cutting Cops Too Much Slack, Wayne A. Logan
Scholarly Publications
Police officers can make mistakes, which, for better or worse, the U.S. Supreme Court has often seen fit to forgive. Police, for instance, can make mistakes of fact when assessing whether circumstances justify the seizure of an individual or search of a residence; they can even be mistaken about the identity of those they arrest. This essay examines yet another, arguably more significant context where police mistakes are forgiven: when they seize a person based on their misunderstanding of what a law prohibits.
Personal Curtilage: Fourth Amendment Security In Public, Andrew Ferguson
Personal Curtilage: Fourth Amendment Security In Public, Andrew Ferguson
Articles in Law Reviews & Other Academic Journals
Do citizens have any Fourth Amendment protection from sense-enhancing surveillance technologies in public? This article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces.This article proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage protection for private property. Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. Curtilage recognizes a buffer zone beyond the four corners of the home that deserves protection, even in public, even if accessible to public view. Based on …
The Inviolate Home: Housing Exceptionalism In The Fourth Amendment, Stephanie M. Stern
The Inviolate Home: Housing Exceptionalism In The Fourth Amendment, Stephanie M. Stern
All Faculty Scholarship
The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions. The focus on protection of the physical home has decreased doctrinal efficiency and coherence and derailed Fourth Amendment residential privacy from the core principle of intimate association. This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces …
Improbable Cause: A Case For Judging Police By A More Majestic Standard, Melanie D. Wilson
Improbable Cause: A Case For Judging Police By A More Majestic Standard, Melanie D. Wilson
Scholarly Articles
Several prior studies have demonstrated that police sometimes, if not often, lie in an attempt to avoid the effects of the exclusionary rule. This study of federal trial judges in the District of Kansas suggests that judges may be fostering this police perjury. Judges may unwittingly encourage police perjury because they subconsciously recognize that acknowledging perjury will probably result in release of a culpable defendant. Judges may also permit perjury because they cannot determine when police are lying. In either case, the Supreme Court majority's conception of the exclusionary rule naturally leads trial judges to deny defendants' motions to suppress. …
Public Interest(S) And Fourth Amendment Enforcement, Alexander A. Reinert
Public Interest(S) And Fourth Amendment Enforcement, Alexander A. Reinert
Articles
Fourth Amendment events generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the amendment creates only tension between privately held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered …
Recent Case, Ninth Circuit Considers Community's Racial Tension With Police In Finding Illegal Seizure And Lack Of Voluntary Consent. — United States V. Washington, 490 F.3d 765 (9th Cir. 2007), Portia Pedro
Faculty Scholarship
The traditional story of Fourth Amendment search and seizure doctrine involves a complex compromise between public safety and the constitutional right to personal liberty. Although the choice of viewpoint is often left out of the story, much also depends on whose perspective — police officers’ or civilians’ — a judge employs for search and seizure determinations. The chosen perspective circumscribes the types of facts that a judge considers in these evaluations. In United States v. Washington, the Ninth Circuit held that the district court should have suppressed evidence obtained through a vehicle search because the consent was not voluntary, or, …
Warrantless Location Tracking, Ian Samuel
Warrantless Location Tracking, Ian Samuel
Articles by Maurer Faculty
The ubiquity of cell phones has transformed police investigations. Tracking a suspect's movements by following her phone is now a common but largely unnoticed surveillance technique. It is useful, no doubt, precisely because it is so revealing; it also raises significant privacy concerns. In this Note, I consider what the procedural requirements for cell phone tracking should be by examining the relevant statutory and constitutional law. Ultimately, the best standard is probable cause; only an ordinary warrant can satisfy the text of the statutes and the mandates of the Constitution.
What Is A Search? Two Conceptual Flaws In Fourth Amendment Doctine And Some Hints Of A Remedy, Sherry F. Colb
What Is A Search? Two Conceptual Flaws In Fourth Amendment Doctine And Some Hints Of A Remedy, Sherry F. Colb
Cornell Law Faculty Publications
No abstract provided.
Is The Fourth Amendment Obsolete?–Restating The Fourth Amendment In Functional Terms, John M.A. Dipippa
Is The Fourth Amendment Obsolete?–Restating The Fourth Amendment In Functional Terms, John M.A. Dipippa
Faculty Scholarship
No abstract provided.
The Burger Court And The Fourth Amendment, Larry Yackle
The Burger Court And The Fourth Amendment, Larry Yackle
Faculty Scholarship
In his 1974 Holmes Lectures, Anthony Amsterdam likened the Supreme Court in search and seizure cases to a committee "attempting to draft a horse by placing very short lines on a very large drawing board at irregular intervals during which the membership of the committee constantly changes." On that perception of the matter he cautioned against precipitous criticism when the completed draft resembles a camel. That advice, in my judgment, is reliable only in part. On the one hand, only the most arrogant of armchair critics would not concede that the Court's work is as difficult as it is important. …