Law Commons^™

You Can’T Teach Old Katz New Tricks: It’S Time To Revitalize The Fourth Amendment, Jeremy Connell

University of Miami Law Review

For over half a century, the Court’s decision in Katz v. United States has been the lodestar for applying the Fourth Amendment. The Katz test has produced a litany of confusing and irreconcilable decisions in which the Court has carved exceptions into the doctrine and then carved exceptions into the exceptions. These decisions often leave lower courts with minimal guidance on how to apply the framework to new sets of facts and leave legal scholars and commenters befuddled and frustrated with the Court’s explanations for the rulings. The Court’s decision in Carpenter v. United States represents the apex of Katz’s …

Aerial Trespass And The Fourth Amendment, Randall F. Khalil

Michigan Law Review

Since 1973, courts have analyzed aerial surveillance under the Fourth Amendment by applying the test from Katz v. United States, which states that a search triggers the Fourth Amendment when a government actor violates a person’s “reasonable expectation of privacy.” The Supreme Court applied Katz to aerial surveillance three times throughout the 1980s, yet this area of the law remains unsettled and outcomes are unpredictable. In 2012, the Supreme Court recognized an alternative to the Katz test in Jones v. United States, which held that a search triggers the Fourth Amendment when a government actor physically intrudes into …

Another Katz Moment?: Privacy, Property, And A Dna Database, Claire Mena

University of Michigan Journal of Law Reform

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The understanding of these words seems to shift as new technologies emerge. As law enforcement’s arsenal of surveillance techniques has grown to include GPS tracking, cell phones, and cell site location information (CSLI), the Supreme Court has applied Fourth Amendment protections to these modern tools. Law enforcement continues to use one pervasive surveillance technique without limitations: the routine collection of DNA. In 2013, the Supreme Court in Maryland v. King held that law enforcement may routinely …

A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher

Notre Dame Law Review

Today, information is shared almost constantly. People share their DNA to track their ancestry or for individualized health information; they instruct Alexa to purchase products or provide directions; and, now more than ever, they use videoconferencing technology in their homes. According to the third-party doctrine, the government can access all such information without a warrant or without infringing on Fourth Amendment privacy protections. This exposure of vast amounts of highly personal data to government intrusion is permissible because the Supreme Court has interpreted the third-party doctrine as a per se rule. However, that interpretation rests on an improper understanding of …

The Qualitative Fourth Amendment: The Case For A Refined, Information-Focused Approach To Fourth Amendment Cases Involving Non-Trespassatory Government Surveillance, Joshua L. Wagner

William & Mary Law Review

In his 2001 majority opinion for Kyllo v. United States, Justice Scalia adopted his characteristic chiding tone to gently reproach what he saw as a notably liberal departure from the original textual interpretation of the Constitution. The Katz test for Fourth Amendment violations, to Scalia, was plainly “circular, and hence subjective and unpredictable.” That it was one of the most influential and oft-discussed decisions the Supreme Court has ever handed down made little difference; regardless of whatever Justice Harlan and his successors had said, the Fourth Amendment was, at its heart, a protection against government interference with property and had …

The Sacred Fourth Amendment Text, Christopher Slobogin

Michigan Law Review Online

The Supreme Court’s jurisprudence governing the Fourth Amendment’s “threshold”—a word meant to refer to the types of police actions that trigger the amendment’s warrant and reasonableness requirements—has confounded scholars and students alike since Katz v. United States. Before that 1967 decision, the Court’s decisions on the topic were fairly straightforward, based primarily on whether the police trespassed on the target’s property or property over which the target had control. After that decision—which has come to stand for the proposition that a Fourth Amendment search occurs if police infringe an expectation of privacy that society is prepared to recognize as …

How Definitive Is Fourth Amendment Textualism?, Evan H. Caminker

Michigan Law Review Online

Professor Jeffrey Bellin’s excellent article advances a comprehensive and straightforward textual approach to determining what policing activities constitute “searches” triggering the protections of the Fourth Amendment. Bellin’s thesis is that a text-based approach to interpreting the Amendment is superior to the Supreme Court’s current approach, which ever since Katz v. United States has defined “search” primarily by reference to a non-textual “reasonable expectation of privacy” standard. After soundly criticizing the ungrounded and highly subjective nature of the Katz test, Bellin declares that the Court should instead simply follow where the text leads: the Amendment protects people from a search, meaning …

Adapting U.S. Electronic Surveillance Laws, Policies, And Practices To Reflect Impending Technological Developments, Eric Manpearl

Catholic University Law Review

Intelligence collection must always evolve to meet technological developments. While the collection programs under Section 702 of the FISA Amendments Act of 2008 have produced a great deal of valuable intelligence over the last decade, the United States must begin to think about foreseeable technological developments and strategically consider how to conduct signals intelligence (SIGINT) collection in the future.

This Article identifies four technological trends that could significantly impact the way the United States conducts SIGINT. Individuals now have access to sophisticated technologies that formerly only governments seemed capable of creating, and this decentralization of capabilities will likely only increase …

The Fourth Amendment And New Technologies: Constitutional Myths And The Case For Caution, Orin S. Kerr

Orin Kerr

To one who values federalism, federal preemption of state law may significantly threaten the autonomy and core regulatory authority of The Supreme Court recently considered whether a1mmg an infrared thermal imaging device at a suspect's home can violate the Fourth Amendment. Kyllo v. United States announced a new and comprehensive rule: the government's warrantless use of senseenhancing technology that is "not in general use" violates the Fourth Amendment when it yields "details of the home that would previously have been unknowable without physical intrusion." Justice Scalia's majority opinion acknowledged that the Court's rule was not needed to resolve the case …

Fourth Amendment Textualism, Jeffrey Bellin

Michigan Law Review

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 …

The Fourth Amendment Categorical Imperative, David Gray

Michigan Law Review Online

The vast majority of current Fourth Amendment doctrine is unfounded, incoherent, and dangerous. The culprit is the Supreme Court’s 1967 decision in Katz v. United States, which defines “search” as government conduct that violates subjectively manifested expectations of privacy “that society is prepared to recognize as ‘reasonable.’ ” This is pure applesauce. Nowhere will you find a standard dictionary that defines “search” in these terms. Neither will you hear a native speaker of the English language use “search” in this sense unless her mind has been polluted by a semester of studying criminal procedure. The Court created this definition …

Voluntary Disclosure Of Information As A Proposed Standard For The Fourth Amendment's Third-Party Doctrine, Margaret E. Twomey

Michigan Telecommunications & Technology Law Review

The third-party doctrine is a long-standing tenant of Fourth Amendment law that allows law enforcement officers to utilize information that was released to a third party without the probable cause required for a traditional search warrant. This has allowed law enforcement agents to use confidential informants, undercover agents, and access bank records of suspected criminals. However, in a digital age where exponentially more information is shared with Internet Service Providers, e-mail hosts, and social media “friends,” the traditional thirdparty doctrine ideas allow law enforcement officers access to a cache of personal information and data with a standard below probable cause. …

In The Wake Of Florida V. J.L. - When Anonymous Tips Give Police Reasonable Suspicion, Robyn Silvermintz

Touro Law Review

No abstract provided.

Spies In The Skies: Dirtboxes And Airplane Electronic Surveillance, Brian L. Owsley

Michigan Law Review First Impressions

Electronic surveillance in the digital age is essentially a cat-and-mouse game between governmental agencies that are developing new techniques and technologies for surveillance, juxtaposed against privacy rights advocates who voice concerns about such technologies. In November 2014, there was a discovery of a new twist on a relatively old theme. Recently, the Wall Street Journal reported that the U.S. Marshals Service was running a surveillance program employing devices—dirtboxes—that gather all cell phone numbers in the surrounding area. Other federal agencies, including the Drug Enforcement Agency, Immigration and Custom Enforcement, and the Department of Homeland Security, are also documented to have …

No More Shortcuts: Protect Cell Site Location Data With A Warrant Requirement, Lauren E. Babst

Michigan Telecommunications & Technology Law Review

In modern society, the cell phone has become a virtual extension of most Americans, managing all kinds of personal and business matters. Modern cell tower technology allows cell service providers to accumulate a wealth of individuals’ location information while they use their cell phones, and such data is available for law enforcement to obtain without a warrant. This is problematic under the Fourth Amendment, which protects reasonable expectations of privacy. Under the Katz two-prong test, (1) individuals have an actual, subjective expectation of privacy in their cell site location data, and (2) society is prepared to acknowledge that expectation as …

What Is A Search? Two Conceptual Flaws In Fourth Amendment Doctine And Some Hints Of A Remedy, Sherry F. Colb

Sherry Colb

No abstract provided.

The Court Loses Its Way With The Global Positioning System: United States V. Jones Retreats To The “Classic Trespassory Search”, George M. Dery Iii, Ryan Evaro

Michigan Journal of Race and Law

This Article analyzes United States v. Jones, in which the Supreme Court considered whether government placement of a global positioning system (GPS) device on a vehicle to follow a person’s movements constituted a Fourth Amendment “search.” The Jones Court ruled that two distinct definitions existed for a Fourth Amendment “search.” In addition to Katz v. United States’s reasonable-expectation-of-privacy standard, which the Court had used exclusively for over four decades, the Court recognized a second kind of search that it called a “classic trespassory search.” The second kind of search occurs when officials physically trespass or intrude upon a constitutionally protected …

Keeping Up With The Jonses: Making Sure Your History Is Just As Wrong As Everyone Else's, Brian Sawers

Michigan Law Review First Impressions

Before Katz v. United States, a search under the Fourth Amendment required a trespass. If there was no trespass on one’s property, then there was no search. In Katz, a 1967 decision, the U.S. Supreme Court abandoned that approach, instead finding a search without a trespass based on the government’s invasion of a “reasonable expectation of privacy.” In Oliver v. United States, the Court found that trespass was not sufficient to create a search. It found no reasonable expectation of privacy in open fields, and thus no search, even though the defendant had erected “No Trespassing” signs around his property …

Bending Broken Rules: The Fourth Amendment Implications Of Full-Body Scanners In Preflight Screening, M. Madison Taylor

Richmond Journal of Law & Technology

In the face of emerging technology, the Fourth Amendment’s guarantee of protection against unreasonable searches and seizures is especially susceptible to erosion. As Justice Scalia wrote in Kyllo v. United States, “[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.” In Katz v. United States, technology compelled a dramatic shift in the Supreme Court’s interpretation of the Fourth Amendment. Prior to Katz, the Court generally interpreted the Fourth Amendment to prevent only the search and seizure of tangible things, and looked to …

The Bush Administration's Terrorist Surveillance Program And The Fourth Amendment's Warrant Requirement: Lessons From Justice Powell And The Keith Case, Tracey Maclin

UF Law Faculty Publications

This article was written for a symposium issue of the University of California at Davis Law Review on the fortieth anniversary of Katz v. United States. The article analyzes the Bush Administration's claim that the President has the authority to order warrant less electronic surveillance of communications between American citizens and persons abroad suspected of having connections with foreign terrorists groups. When evaluating this claim, my article focuses on a case that could be characterized as more constitutionally robust and stronger Katz. That case is United States v. United States District Court, also known as Keith. The Keith ruling held …

Double-Trouble: The Underregulation Of Surreptitious Video Surveillance In Conjunction With The Use Of Snitches In Domestic Government Investigations, Mona R. Shokrai

Richmond Journal of Law & Technology

Technological advancements in digital imagery and visual recordings have all but vitiated any expectation of privacy in public places. Yet this Orwellian state of constant governmental surveillance has extended beyond the scope of public observation. Closely-held expectations of privacy in the most intimate locations have also become subject to government observation. The means by which the government is able to garner such detailed information concerning the minutiae of our private lives is in need of assessment.

Equality, Objectivity, And Neutrality, Alafair S. Burke

Michigan Law Review

When is homicide reasonable? That familiar, yet unanswered question continues to intrigue both courts and criminal law scholars, in large part because any response must first address the question, "reasonable to whom?" The standard story about why that threshold question is both difficult and interesting usually involves a juxtaposition of "objective" and "subjective" standards for judging claims of reasonableness. On the one hand, the story goes, is a "subjective" standard of reasonableness under which jurors evaluate the reasonableness of a criminal defendant's beliefs and actions by comparing them to those of a hypothetical reasonable person sharing all of the individual …

Katz Is Dead. Long Live Katz, Peter P. Swire

Michigan Law Review

Katz v. United States is the king of Supreme Court surveillance cases. Written in 1967, it struck down the earlier regime of property rules, declaring that "the Fourth Amendment protects people, not places." The concurrence by Justice Harlan announced the new regime - court-issued warrants are required where there is an infringement on a person's "reasonable expectation of privacy." Together with the companion case Berger v. New York, Katz has stood for a grand conception of the Fourth Amendment as a bulwark against wiretaps and other emerging forms of surveillance. Professor Orin Kerr, in his excellent article, shows that …

The Fourth Amendment And New Technologies: Constitutional Myths And The Case For Caution, Orin S. Kerr

Michigan Law Review

To one who values federalism, federal preemption of state law may significantly threaten the autonomy and core regulatory authority of The Supreme Court recently considered whether a1mmg an infrared thermal imaging device at a suspect's home can violate the Fourth Amendment. Kyllo v. United States announced a new and comprehensive rule: the government's warrantless use of senseenhancing technology that is "not in general use" violates the Fourth Amendment when it yields "details of the home that would previously have been unknowable without physical intrusion." Justice Scalia's majority opinion acknowledged that the Court's rule was not needed to resolve the case …

A World Without Privacy: Why Property Does Not Define The Limits Of The Right Against Unreasonable Searches And Seizures, Sherry F. Colb

Michigan Law Review

Imagine for a moment that it is the year 2020. An American company has developed a mind-reading device, called the "brain wave recorder" ("BWR"). The BWR is a highly sensitive instrument that detects electrical impulses from any brain within ten feet of the machine. Though previously thought impossible, the BWR can discern the following information about the target individual: (1) whether he or she is happy, sad, anxious, depressed, or irritable; (2) whether he or she is even slightly sexually aroused; (3) whether he or she is taking any medication (and if so, what the medication is); (4) if a …

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.

The Fourth Amendment In The Hallway: Do Tenants Have A Constitutionally Protected Privacy Interest In The Locked Common Areas Of Their Apartment Buildings?, Sean M. Lewis

Michigan Law Review

One afternoon, a police officer spots a man driving a Cadillac through a run·down neighborhood. His interest piqued, the officer decides to follow the vehicle. The Cadillac soon comes to rest in front of an apartment building, and the driver, Jimmy Barrios-Moriera, removes a shopping bag from the trunk and enters the building. The moment Barrios-Moriera disappears within the doorway, the officer sprints after him because he knows that the door to the apartment building will automatically lock when it closes. He manages to catch the door just in time and rushes in. Barrios-Moriera is already halfway up a flight …

Fbi Internet Surveillance: The Need For A Natural Rights Application Of The Fourth Amendment To Insure Internet Privacy, Catherine M. Barrett

Richmond Journal of Law & Technology

Last year, the Federal Bureau of Investigation (“FBI”) acknowledged that it used an Internet electronic surveillance system called Carnivore to investigate and prosecute criminal suspects in more than two dozen cases. Carnivore is a software program developed by the FBI that can be installed on the network of an Internet Service Provider (“ISP”), such as America Online, to monitor, intercept and collect e-mail messages and other Internet activity made and received by individuals suspected of criminal activity. To date, the full capability of Carnivore remains a secret—the FBI refuses to disclose the source code (computer language) that would reveal how …

Liberty From Officials By Grace: The Fourth Amendment's Application To Automobile Passengers In Maryland V. Wilson, Michael Begland

University of Richmond Law Review

On February 19, 1997, the United States Supreme Court handed down its decision in Maryland v. Wilson, and put an end to twenty years of speculation regarding a police officer's authority to order a passenger out of a lawfully stopped automobile. In finding that such an order does not violate a passenger's Fourth Amendment privacy interests, the Supreme Court reversed Maryland's Court of Special Appeals and sided with the majority of states that have considered this narrow issue. The Court's decision provides important insight into the current state of Fourth Amendment jurisprudence and the Supreme Court's increasing willingness to sacrifice …

Search & Seizure

Touro Law Review

No abstract provided.