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Articles 1 - 30 of 36
Full-Text Articles in Law
Border Searches Of Laptop Computers After United States V. Arnold: Implications For Traveling Professionals, Cooper Offenbecher
Border Searches Of Laptop Computers After United States V. Arnold: Implications For Traveling Professionals, Cooper Offenbecher
Washington Journal of Law, Technology & Arts
The Ninth Circuit Court of Appeals recently held that border searches of laptop computers do not require reasonable suspicion. The decision, in United States v. Arnold, reflects the continued intent of the Ninth Circuit—along with the Fourth Circuit Court of Appeals—to continue analyzing laptop computer searches under the traditional border search doctrine. This article will examine recent laptop computer search cases in light of the border search doctrine and will consider the implications for lawyers and business professionals who travel abroad with confidential information on laptops and other electronic-storage devices. The article will also consider the implications of such …
The Iphone Meets The Fourth Amendment, Adam M. Gershowitz
The Iphone Meets The Fourth Amendment, Adam M. Gershowitz
Faculty Publications
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 …
National Security, Policing, And The Fourth Amendment: A New Perspective On Hiibel, Evan N. Turgeon
National Security, Policing, And The Fourth Amendment: A New Perspective On Hiibel, Evan N. Turgeon
Buffalo Public Interest Law Journal
No abstract provided.
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, …
The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric B. Easton
The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric B. Easton
Federal Communications Law Journal
Media corporations and their professional and trade associations, as well as organizations such as Reporters Committee for Freedom of the Press and the American Civil Liberties Union, regularly monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. But that was not always the case. While media companies have always lobbied and litigated in support of their business interests-antitrust, copyright, postal rates, taxes-litigation by the institutional press to create or avoid doctrinal precedent under the First Amendment began only in the late 1920s. Once the United States Supreme Court recognized the incorporation of the First …
"Move On" Orders As Fourth Amendment Seizures, Stephen E. Henderson
"Move On" Orders As Fourth Amendment Seizures, Stephen E. Henderson
BYU Law Review
No abstract provided.
Doctrinal Feedback And (Un)Reasonable Care, James Gibson
Doctrinal Feedback And (Un)Reasonable Care, James Gibson
Law Faculty Publications
The law frequently derives its content from the practices of the community it regulates. Examples are legion: Tort's reasonable care standard demands that we all exercise the prudence of an "ordinary" person. Ambiguous contracts find meaning in custom and usage of trade. The Fourth Amendment examines our collective expectations of privacy. And so on. This recourse to real-world circumstance has in-tuitive appeal, in that it helps courts resolve fact-dependent disputes and lends legitimacy to their judgments. Yet real-world practice can depart from that which the law expects. For example, suppose a physician provides more than reasonable care - extra tests, …
Government Data Mining And The Fourth Amendment, Christopher Slobogin
Government Data Mining And The Fourth Amendment, Christopher Slobogin
Vanderbilt Law School Faculty Publications
The government's ability to obtain and analyze recorded information about its citizens through the process known as data mining has expanded enormously over the past decade. Although the best-known government data mining operation (Total Information Awareness, more recently dubbed Terrorism Information Awareness) supposedly no longer exists, large-scale data mining by federal agencies devoted to enforcing criminal and counter-terrorism laws has continued unabated. This paper addresses three puzzles about data mining. First, when data mining is undertaken by the government, does it implicate the Fourth Amendment? Second, does the analysis change when data mining is undertaken by private entities which then …
The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers
The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers
Faculty Scholarship
No abstract provided.
Surveillance And Identity Performance: Some Thoughts Inspired By Martin Luther King, Frank Rudy Cooper
Surveillance And Identity Performance: Some Thoughts Inspired By Martin Luther King, Frank Rudy Cooper
Scholarly Works
In this article, Professor Frank Cooper explores self-actualization, the process whereby people create their own identity by means of experimenting with different behaviors, in the context of Martin Luther King, Jr. and the FBI surveillance he was subjected to in the time leading up to his death. He argues that it is possible for people to live in an environment that is more or less alienating to the way in which they perform their identities. Performativity scholars such as Devon Carbado and Mitu Gulati say that people can have an internal sense of self that is distinct from the identity …
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 "Blowing In The Wind"? Reopening The Exclusionary Rule Debate, John B. Rayburn
What Is "Blowing In The Wind"? Reopening The Exclusionary Rule Debate, John B. Rayburn
West Virginia Law Review
No abstract provided.
Reasonableness And Objectivity: A Feminist Discourse Of The Fourth Amendment, Dana Raigrodski
Reasonableness And Objectivity: A Feminist Discourse Of The Fourth Amendment, Dana Raigrodski
Articles
This article suggests that a critical reexamination of the Fourth Amendment and its jurisprudence through feminist lenses can shed new light and add to our understanding of it. These insights, in turn, can and should generate a positive feminist Fourth Amendment jurisprudence—a distinctive feminist voice to be integrated systematically into the law of search and seizure, leading to a transformation of the Fourth Amendment itself. Applying feminist theories to particular issues and normative layers of current Fourth Amendment jurisprudence may help guide us through the more difficult task of imagining a feminist jurisprudence of search and seizure law.
Waiting For The Other Shoe: Hudson And The Precarious State Of Mapp, David A. Moran
Waiting For The Other Shoe: Hudson And The Precarious State Of Mapp, David A. Moran
Articles
I have no idea whether my death will be noted in the New York Times. But if it is, I fear the headline of my obituary will look something like: "Professor Dies; Lost Hudson v. Michigan' in Supreme Court, Leading to Abolition of Exclusionary Rule." The very existence of this Symposium panel shows, I think, that my fear is well-grounded. On the other hand, I am not quite as fearful that Hudson foreshadows the complete overruling of Mapp v. Ohio2 and Weeks v. United States3 as I was when I published an article just three months after the Hudson decision …
Jail Strip-Search Cases: Patterns And Participants, Margo Schlanger
Jail Strip-Search Cases: Patterns And Participants, Margo Schlanger
Articles
Among Marc Galanter’s many important insights is that understanding litigation requires understanding its participants. In his most-cited work, Why the “Haves” Come Out Ahead, Galanter pioneered a somersault in the typical approach to legal institutions and legal change: Most analyses of the legal system start at the rules end and work down through institutional facilities to see what effect the rules have on the parties. I would like to reverse that procedure and look through the other end of the telescope. Let’s think about the different kinds of parties and the effect these differences might have on the way the …
The 'High Crime Area' Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis, Andrew Ferguson, Damien Bernache
The 'High Crime Area' Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis, Andrew Ferguson, Damien Bernache
Articles in Law Reviews & Other Academic Journals
This article proposes a legal framework to analyze the "high crime area" concept in Fourth Amendment reasonable suspicion challenges.Under existing Supreme Court precedent, reviewing courts are allowed to consider that an area is a "high crime area" as a factor to evaluate the reasonableness of a Fourth Amendment stop. See Illinois v. Wardlow, 528 U.S. 119 (2000). However, the Supreme Court has never defined a "high crime area" and lower courts have not reached consensus on a definition. There is no agreement on what a "high-crime area" is, whether it has geographic boundaries, whether it changes over time, whether it …
Garbage Pails And Puppy Dog Tails: Is That What Katz Is Made Of?, Aya Gruber
Garbage Pails And Puppy Dog Tails: Is That What Katz Is Made Of?, Aya Gruber
Publications
This Article takes the opportunity of the fortieth anniversary of Katz v. U.S. to assess whether the revolutionary case's potential to provide broad and flexible privacy protection to individuals has been realized. Answering this question in a circumspect way, the Article pinpoints the language in Katz that was its eventual undoing and demonstrates how the Katz test has been plagued by two principle problems that have often rendered it more harmful to than protective of privacy. The manipulation problem describes the tendency of conservative courts to define reasonable expectations of privacy as lower than the expectations society actually entertains. The …
Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz
Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz
Touro Law Review
No abstract provided.
Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman
Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman
Faculty Publications
In Scott v. Harris (2007), the Supreme Court granted summary judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting summary judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to any interpretation …
Criminal Procedure In Perspective, Kit Kinports
Criminal Procedure In Perspective, Kit Kinports
Journal Articles
This Article attempts to situate the Supreme Court's constitutional criminal procedure jurisprudence in the academic debates surrounding the reasonable person standard, in particular, the extent to which objective standards should incorporate a particular individual's subjective characteristics. Analyzing the Supreme Court's search and seizure and confessions opinions, I find that the Court shifts opportunistically from case to case between subjective and objective tests, and between whose point of view - the police officer's or the defendant's - it views as controlling. Moreover, these deviations cannot be explained either by the principles the Court claims underlie the various constitutional provisions at issue …
The Chains Of The Constitution And Legal Process In The Library: A Post-Usa Patriot Reauthorization Act Assessment, Susan Nevelow Mart
The Chains Of The Constitution And Legal Process In The Library: A Post-Usa Patriot Reauthorization Act Assessment, Susan Nevelow Mart
Publications
Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are …
The Demise Of Fourth Amendment Standing: From Standing Room To Center Orchestra, Nadia B. Soree
The Demise Of Fourth Amendment Standing: From Standing Room To Center Orchestra, Nadia B. Soree
Nevada Law Journal
No abstract provided.
An Automobile Exception In Nevada: A Critique Of The Harnisch Cases, Thomas B. Mcaffee, John P. Lukens, Thaddeus J. Yurek Iii
An Automobile Exception In Nevada: A Critique Of The Harnisch Cases, Thomas B. Mcaffee, John P. Lukens, Thaddeus J. Yurek Iii
Nevada Law Journal
No abstract provided.
Roth At Fifty: Reconsidering The Common Law Antecedents Of American Obscenity Doctrine, 41 J. Marshall L. Rev. 393 (2008), James R. Alexander
Roth At Fifty: Reconsidering The Common Law Antecedents Of American Obscenity Doctrine, 41 J. Marshall L. Rev. 393 (2008), James R. Alexander
UIC Law Review
No abstract provided.
Fourth Amendment Challenges To Camping Ordinances: A Legal Strategy To Force Legislative Solutions To Homelessness, Nicholas May
Fourth Amendment Challenges To Camping Ordinances: A Legal Strategy To Force Legislative Solutions To Homelessness, Nicholas May
Richmond Journal of Law and the Public Interest
This Article argues that Fourth Amendment challenges to camping ordinances can prompt legislative efforts to solve the problem of homelessness in U.S. cities. By properly employing the Supreme Court of the United States' judicial standard for privacy rights, courts should consider the efforts of individual cities' efforts to curb poverty when asking the following question: does society view a homeless person's expectation of privacy as reasonable?
Fourth Amendment Challenges To Camping Ordinances: A Legal Strategy To Force Legislative Solutions To Homelessness, Nicholas May
Fourth Amendment Challenges To Camping Ordinances: A Legal Strategy To Force Legislative Solutions To Homelessness, Nicholas May
Richmond Public Interest Law Review
This Article argues that Fourth Amendment challenges to camping ordinances can prompt legislative efforts to solve the problem of homelessness in U.S. cities. By properly employing the Supreme Court of the United States' judicial standard for privacy rights, courts should consider the efforts of individual cities' efforts to curb poverty when asking the following question: does society view a homeless person's expectation of privacy as reasonable?
The Return Of Reasonableness: Saving The Fourth Amendment From The Supreme Court, Melanie D. Wilson
The Return Of Reasonableness: Saving The Fourth Amendment From The Supreme Court, Melanie D. Wilson
Scholarly Articles
Although there is no recipe for defining Fourth Amendment reasonableness, the Supreme Court produces its most anomalous Fourth Amendment outcomes when it decides "mixed" questions of reasonableness, assessing issues that turn on how ordinary, prudent citizens think and behave. The Court treats these mixed issues, combinations of fact and law, as if they raise purely legal questions. But mixed issues are more complex and require someone to determine historical facts, apply those facts to principles of Fourth Amendment law, and consider the totality of the circumstances, including taking into account community and cultural influences. The Supreme Court will take its …
Of Katz And "Aliens": Privacy Expectations And The Immigration Raids, Raquel Aldana
Of Katz And "Aliens": Privacy Expectations And The Immigration Raids, Raquel Aldana
McGeorge School of Law Scholarly Articles
This Article examines privacy rights for noncitizens in the context of the recent immigration raids in peoples' homes and the workplace. The Immigration and Customs Enforcement Office is conducting these raids with general or defective warrants and executes them in a discriminating dragnet-style, mostly against Latinos. The Fourth Amendment, however, provides little protection to immigrants and their families. This Article explores how law's construction of immigrants' illegality interplays with Fourth Amendment doctrines of consent, reasonable expectation of privacy, pretextual stops, and administrative searches to deny immigrants privacy's protection. In addition, the Article explores the spread of immigration databases and the …
Search Protocols: Establishing The Protections Mandated By The Fourth Amendment Against Unreasonable Searches And Seizures In The World Of Electronic Evidence, Derek Haynes
McGeorge Law Review
No abstract provided.
The Good And Bad News About Consent Searches In The Supreme Court, Tracey Maclin
The Good And Bad News About Consent Searches In The Supreme Court, Tracey Maclin
UF Law Faculty Publications
This article is about the Supreme Court's consent search doctrine. Part I describes how the law of consent searches developed between the 1920s and 1973, when Schneckloth v. Bustamonte was decided, which is the Court's seminal consent search case. Part II of the article is a discussion of Bustamonte. In particular, this part highlights the spoken and unspoken premises that influenced the result in Bustamonte and outlines Bustamonte's continuing relevance for consent search cases today. Part III examines United States v. Drayton, a ruling authored by Justice Kennedy that explains why a cryptic passage in that ruling provides important clues …