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Fourth Amendment

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Full-Text Articles in Law

The Unconstitutional Police, Brandon Hasbrouck Jan 2021

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively ...


Police Brutality And State-Sanctioned Violence In 21st Century America, Itohen Ihaza Jan 2020

Police Brutality And State-Sanctioned Violence In 21st Century America, Itohen Ihaza

Journal of Race, Gender, and Ethnicity

No abstract provided.


Detention By Any Other Name, Sandra G. Mayson Jan 2020

Detention By Any Other Name, Sandra G. Mayson

Faculty Scholarship at Penn Law

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and ...


Secret Searches: The Sca's Standing Conundrum, Aviv S. Halpern Jan 2019

Secret Searches: The Sca's Standing Conundrum, Aviv S. Halpern

Michigan Law Review

The Stored Communications Act (“SCA”) arms federal law enforcement agencies with the ability to use a special type of warrant to access users’ electronically stored communications. In some circumstances, SCA warrants can require service providers to bundle and produce a user’s electronically stored communications without ever disclosing the existence of the warrant to the individual user until charges are brought. Users that are charged will ultimately receive notice of the search after the fact through their legal proceedings. Users that are never charged, however, may never know that their communications were obtained and searched. This practice effectively makes the ...


The Next Step In Civil Asset Forfeiture Reform: Passing The Civil Asset Forfeiture Reform Act Of 2014, Daniel Reed Nov 2017

The Next Step In Civil Asset Forfeiture Reform: Passing The Civil Asset Forfeiture Reform Act Of 2014, Daniel Reed

Catholic University Law Review

Civil asset forfeiture is an operation of legal fiction that enables the government to seize property without an underlying conviction of the property owner. Federal authorities bring thousands of civil asset forfeiture cases annually, often against the property of owners who have not been charged with a crime. Such cases can result in unjust outcomes and denials of due process to property owners. To address this controversy, Representative Tim Walberg proposed several reforms to federal civil asset forfeiture laws known as the Civil Asset Forfeiture Reform Act of 2014 (CAFRA 2014).

After discussing the history of civil asset forfeiture, this ...


Procedural Due Process Claims, Erwin Chemerinsky Jun 2017

Procedural Due Process Claims, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily J. Sack Jan 2017

Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily J. Sack

Roger Williams University Law Review

No abstract provided.


Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily Sack Jan 2017

Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily Sack

Law Faculty Scholarship

No abstract provided.


“Criminal Records” - A Comparative Approach, Sigmund A. Cohn Jun 2016

“Criminal Records” - A Comparative Approach, Sigmund A. Cohn

Georgia Journal of International & Comparative Law

No abstract provided.


Procedural Due Process Claims, Erwin Chemerinsky Apr 2016

Procedural Due Process Claims, Erwin Chemerinsky

Touro Law Review

No abstract provided.


Constitutional Law—Fourth Amendment And Seizures— Accidental Seizures By Deadly Force: Who Is Seized During A Police Shootout? Plumhoff V. Rickard, 134 S. Ct. 2012 (2014)., Adam D. Franks Apr 2016

Constitutional Law—Fourth Amendment And Seizures— Accidental Seizures By Deadly Force: Who Is Seized During A Police Shootout? Plumhoff V. Rickard, 134 S. Ct. 2012 (2014)., Adam D. Franks

University of Arkansas at Little Rock Law Review

No abstract provided.


Foreword: Private And Public Revisited Once Again, Mark A. Graber Dec 2015

Foreword: Private And Public Revisited Once Again, Mark A. Graber

Maryland Law Review

No abstract provided.


Section 1983 Cases In The October 2004 Term, Martin A. Schwartz Oct 2015

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.


Book Review: Psychiatric Justice, Alice M. Batchelder Aug 2015

Book Review: Psychiatric Justice, Alice M. Batchelder

Akron Law Review

In an era in which extensive judicial emphasis has been placed on "due process of law" in criminal proceedings, both in the federal courts and in the state courts, Dr. Szasz's book serves as a jarring reminder that in at least one vital area of the concept of due process, much remains to be done. The emerging definition of due process has enunciated the rights guaranteed the individual by the Fourth, Fifth, Sixth, and Fourteenth Amendments; and viewed within that framework, this book, although published in 1965, remains particularly timely, for Szasz, speaking as a psychiatrist, endeavors to demonstrate ...


A Legal Note On The Nixon Pardon: Equal Justice Vis-À-Vis Due Process, Luis Kutner Aug 2015

A Legal Note On The Nixon Pardon: Equal Justice Vis-À-Vis Due Process, Luis Kutner

Akron Law Review

THE FIRST TWO MAJOR ACTS of the Ford Presidency-the offer of earned amnesty (at least insofar as draft resisters in the Vietnam conflict are concerned) and the pardon granted to former President Richard M. Nixonwere charitable, wise and just. This article, of course, will discuss the presidential pardon for Mr. Nixon.


Mill's Theory Of Liberty In Constitutional Interpretation, Wilson Ray Huhn Jul 2015

Mill's Theory Of Liberty In Constitutional Interpretation, Wilson Ray Huhn

Akron Law Review

I wish to apply Justice Thompson's discussion of the nature of liberty in a more general context in addressing fundamental questions of constitutional interpretation. Justice Thompson's essential inquiry is, "Should the enforcement of morals be the concern of the law?" I take the liberty of slightly rephrasing that question: "Is the enforcement of traditional moral norms per se constitutional?" I suggest that the answer to this question is "no." Courts and scholars have often confused our moral traditions with our traditions of liberty and equality. My central premise is that it is for the legislature to enact morality ...


Off Duty, Off The Wall, But Not Off The Hook: Section 1983 Liability For The Private Misconduct Of Public Officials, Douglas S. Miller Jul 2015

Off Duty, Off The Wall, But Not Off The Hook: Section 1983 Liability For The Private Misconduct Of Public Officials, Douglas S. Miller

Akron Law Review

The language quoted in the previous paragraph, employing as it does the metaphor of causation, represents one model for determining when a person has acted under color of law. Other models have also been used. In Part II of this Article, I note briefly the inconsistency of outcome that has marked this area, and identify the various models used, relying in part on the efforts of other commentators to describe the models that might be available from a theoretical standpoint. In the course of identifying these models, I note that many, if not all, lack authority either in the history ...


Twelve Angry Hours: Improving Domestic Violence Holds In Tennessee Without Risk Of Violating The Constitution, Daniel A. Horwitz Dec 2014

Twelve Angry Hours: Improving Domestic Violence Holds In Tennessee Without Risk Of Violating The Constitution, Daniel A. Horwitz

Daniel A. Horwitz

Tennessee law currently provides that individuals who have been arrested for certain domestic violence offenses “shall not be released within twelve (12) hours of arrest if the magistrate or other official duly authorized to release the offender finds that the offender is a threat to the alleged victim.” However, Tennessee law also provides for an exception to this “12-hour hold” requirement that permits judges to release domestic violence arrestees before twelve hours have elapsed “if the official determines that sufficient time has or will have elapsed for the victim to be protected.” Following an especially high-profile incident of domestic violence ...


Confessions, Criminals, And Community, Sheri Lynn Johnson Dec 2014

Confessions, Criminals, And Community, Sheri Lynn Johnson

Sheri Lynn Johnson

No abstract provided.


The Case For Rational Basis Review Of General Suspicionless Searches And Seizures, Richard C. Worf May 2014

The Case For Rational Basis Review Of General Suspicionless Searches And Seizures, Richard C. Worf

Touro Law Review

This article examines the constitutional status of suspicionless searches and seizures of groups- an exceedingly important question in the age of terror, and a subject recently brought back to the forefront by the searches of subway passengers in New York City. It draws on process theory to argue that when a legislature has authorized a group search or seizure, courts should generally apply rational basis review.

First, other areas of constitutional doctrine exhibit deep trust in the power of groups to protect their interests in political process, and there is no reason why fourth amendment doctrine should not do the ...


Due Process In American Military Tribunals After September 11, 2001, Gary Shaw May 2013

Due Process In American Military Tribunals After September 11, 2001, Gary Shaw

Gary M. Shaw

The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"


California And Uncle Sam's Tug-Of-War Over Mary Jane Is Really Harshing The Mellow, Daniel Mortensen Mar 2013

California And Uncle Sam's Tug-Of-War Over Mary Jane Is Really Harshing The Mellow, Daniel Mortensen

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar Jan 2012

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


Due Process In American Military Tribunals After September 11, 2001, Gary Shaw Jan 2012

Due Process In American Military Tribunals After September 11, 2001, Gary Shaw

Touro Law Review

The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"


‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson Dec 2007

‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson

Stephen E Henderson

If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as ...


Rethinking The Substantive Due Process Right To Privacy: Grounding Privacy In The Fourth Amendment, Mary H. Wimberly Jan 2007

Rethinking The Substantive Due Process Right To Privacy: Grounding Privacy In The Fourth Amendment, Mary H. Wimberly

Vanderbilt Law Review

Little in the jurisprudence of the Supreme Court has spurred as much controversy as the Court's recognition of a constitutional right to privacy. While implicitly acknowledging that such a right is not listed in the text of the Constitution, in Griswold v. Connecticut the Court found that the right existed in the "penumbras" of the amendments to the Constitution.' According to the Court, the right to privacy was present in "emanations" from the guarantees of the Bill of Rights. This reasoning was notoriously extended to abortion in Roe v. Wade. In order to invalidate state regulation of abortion, the ...


Section 1983 Cases In The October 2004 Term, Martin A. Schwartz Jan 2006

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.


Criminal Law, Marla Graff Decker, Stephen R. Mccullough Nov 2003

Criminal Law, Marla Graff Decker, Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.


Criminal Law And Procedure, Julie E. Mcconnell, Gregory Franklin, Craig Winston Stallard Nov 2002

Criminal Law And Procedure, Julie E. Mcconnell, Gregory Franklin, Craig Winston Stallard

University of Richmond Law Review

No abstract provided.


Criminal Procedure: Atwater V. City Of Lago Vista: The Due Process Dilemma Of Fourth Amendment Seizures For Traffic Violations, Amy J. Nelson Jan 2002

Criminal Procedure: Atwater V. City Of Lago Vista: The Due Process Dilemma Of Fourth Amendment Seizures For Traffic Violations, Amy J. Nelson

Oklahoma Law Review

No abstract provided.