Law Commons^™

Feeding The Machine: Policing, Crime Data, & Algorithms, Elizabeth E. Joh

William & Mary Bill of Rights Journal

No abstract provided.

The Fourth Amendment Disclosure Doctrines, Monu Bedi

William & Mary Bill of Rights Journal

The third party and public disclosure doctrines (together the “disclosure doctrines”) are long-standing hurdles to Fourth Amendment protection. These doctrines have become increasingly relevant to assessing the government’s use of recent technologies such as data mining, drone surveillance, and cell site location data. It is surprising then that both the Supreme Court and scholars, at times, have associated them together as expressing one principle. It turns out that each relies on unique foundational triggers and does not stand or fall with the other. This Article tackles this issue and provides a comprehensive topology for analyzing the respective contours of each …

Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal

William & Mary Bill of Rights Journal

In at least two recent cases, courts have rejected service providers’ capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular third-party litigant could not. In the situations presented by the recent cases, by …

Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu

Faculty Publications

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies. …

Brief Of Scholars Of The History And Original Meaning Of The Fourth Amendment As Amici Curiae In Support Of Petitioner, Margaret Hu

Briefs

No abstract provided.

Pricing The Fourth Amendment, Miriam H. Baer

William & Mary Law Review

Critics have long decried the Fourth Amendment’s lack of an adequate remedy to secure its compliance. Neither the exclusionary rule nor the threat of civil liability deters police misconduct, leaving scholars to cast about for alternative measures. The emphasis on penalties, however, overlooks a different problem: detection. Because of policing’s fast-paced nature, even so-called “flagrant” Fourth Amendment violations trigger insufficient liability due to low probabilities of detection.

This Article addresses this problem by drawing on the Pigouvian tax literature. The Pigouvian tax—sometimes referred to as a “corrective tax”—is a pricing instrument imposed by regulators in an amount equal to the …

The Positive Law Model Of The Fourth Amendment, William Baude, James Y. Stern

Faculty Publications

For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused, but viable alternatives have been slow to emerge. This Article supplies one.

We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection …

Regulating Drones Under The First And Fourth Amendments, Marc Jonathan Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai

William & Mary Law Review

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September 2015. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Given UAV utility and cost-effectiveness over a vast range of tasks, however, widespread commercial use ultimately seems certain. Consequently, it is imperative to understand …

The Right To Remain Armed, Jeffrey Bellin

Faculty Publications

The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia, and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta, and Cleveland.

These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could …

Obscured By Clouds: The Fourth Amendment And Searching Cloud Storage Accounts Through Locally Installed Software, Aaron J. Gold

William & Mary Law Review

No abstract provided.

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

William & Mary Law Review

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between law-enforcement investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited resources to develop countermeasures, law enforcement officers will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game-theoretic model that shows that when law-enforcement investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

Future Of The Fourth Amendment: The Problem With Privacy, Poverty And Policing, Kami Chavis Simmons

Faculty Publications

For decades, the reasonable expectation of privacy has been the primary standard by which courts have determined whether a "search" has occurred within the meaning of the Fourth Amendment. The Supreme Court's recent decision in U.S. v. Jones, however, has reinvigorated the physical trespass doctrine's importance when determining whether there has been a "search" triggering constitutional protection. Recognizing the unpredictability of the reasonable expectation of privacy doctrine and that doctrine's bias against the urban poor, many scholars hope that the Jones opinion may ameliorate the class divide that has developed in Fourth Amendment jurisprudence.

This Article argues that while …

The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin

Faculty Publications

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all …

Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Binary Searches And The Central Meaning Of The Fourth Amendment, Lawrence Rosenthal

William & Mary Bill of Rights Journal

No abstract provided.

Richard Ortega, Plaintiff-Appellant, V. United States Immigration And Customs Enforcement, Et Al., Defendants-Appellants: Petition For A Writ Of Certiorari, Patricia E. Roberts, Tillman J. Breckenridge, Thomas W. Ports Jr.

Appellate and Supreme Court Clinic

No abstract provided.

Oliver Lawal, Daosamid Bounthisane, And Gazali Shittu, Appellants, V. Marc Mcdonald, William Riley, And Frederick Chose, Appellees: Petition For Panel Rehearing, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan, Thomas W. Ports Jr.

Appellate and Supreme Court Clinic

No abstract provided.

Deadly Drones, Due Process, And The Fourth Amendment, William Funk

William & Mary Bill of Rights Journal

No abstract provided.

Administrative Searches, Technology And Personal Privacy, Russell L. Weaver

William & Mary Bill of Rights Journal

No abstract provided.

Seizing A Cell Phone Incident To Arrest: Data Extraction Devices, Faraday Bags, Or Aluminum Foil As A Solution To The Warrantless Cell Phone Search Problem, Adam M. Gershowitz

William & Mary Bill of Rights Journal

No abstract provided.

Oliver Lawal, Daosamid Bounthisane, And Gazali Shittu, Appellants, V. Marc Mcdonald, William Riley, And Frederick Chose, Appellees: Reply Brief Of Appellants, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan, Thomas W. Ports Jr.

Appellate and Supreme Court Clinic

No abstract provided.

Oliver Lawal, Daosamid Bounthisane, And Gazali Shittu, Appellants, V. Marc Mcdonald, William Riley, And Frederick Chose, Appellees: Brief Of Appellants, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan, Thomas W. Ports Jr.

Appellate and Supreme Court Clinic

No abstract provided.

Richard Ortega, Plaintiff-Appellant, V. United States Immigration And Customs Enforcement, Et Al., Defendants-Appellants: Reply Brief Of Appellant, Patricia E. Roberts, Tillman J. Breckenridge, Alison R.W. Toepp

Appellate and Supreme Court Clinic

No abstract provided.

Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports

William & Mary Bill of Rights Journal

This Article discusses the Supreme Court’s use of the concepts of culpability and deterrence in its Fourth Amendment jurisprudence, in particular, in the opinions applying the good-faith exception to the exclusionary rule. The contemporary Court sees deterrence as the exclusionary rule’s sole function, and the Article begins by taking the Court at its word, evaluating its exclusionary rule case law on its own terms. Drawing on three different theories of deterrence—economic rational choice theory, organizational theory, and the expressive account of punishment—the Article analyzes the mechanics by which the exclusionary rule deters unconstitutional searches and questions the Court’s recent decision …

Richard Ortega, Plaintiff-Appellant, V. United States Immigration And Customs Enforcement, Et Al., Defendants-Appellants: Brief Of Appellant, Patricia E. Roberts, Tillman J. Breckenridge, Alison R.W. Toepp

Appellate and Supreme Court Clinic

No abstract provided.

Mary D. Branch, Plaintiff-Appellant, V. Officer Timothy Gorman, Et Al., Defandants-Appellants: Reply Brief Of Appellant, Patricia E. Roberts, Pamela Palmer, Alexa Roggenkamp, Tillman J. Breckenridge, Robert M. Luck Iii

Appellate and Supreme Court Clinic

No abstract provided.

Mary D. Branch, Plaintiff-Appellant, V. Officer Timothy Gorman, Et Al., Defandants-Appellants: Brief Of Appellant, Patricia E. Roberts, Pamela Palmer, Alexa Roggenkamp, Tillman J. Breckenridge, Robert M. Luck Iii

Appellate and Supreme Court Clinic

No abstract provided.

The Real Rules Of "Search" Interpretations, Luke M. Milligan

William & Mary Bill of Rights Journal

The Supreme Court tells us that a Fourth Amendment “search” is a matter of “reasonable expectations of privacy.” Scholars meanwhile debate “search” on the axes of value, doctrine, institutionalism, interpretation, and judicial politics. Yet neither prevailing judicial doctrine nor normative academic discourse has had much impact on the Court’s actual “search” interpretations. This article suggests that this static between “paper” rules and “real” rules (and, more generally, normative prescriptions and judicial decisionmaking) is a function of a deep constraint on the judiciary’s capacity to form “search” doctrine in free accordance with evolving juridical and policy norms. This constraint is one …

Texting While Driving Meets The Fourth Amendment: Deterring Both Texting And Warrantless Cell Phone Searches, Adam M. Gershowitz

Faculty Publications

Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. …

Crime-Severity Distinctions And The Fourth Amendment: Reassessing Reasonableness In A Changing World, Jeffrey Bellin

Faculty Publications

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine—crime severity.

The Supreme Court emphasizes that “reasonableness” is the “touchstone” of Fourth Amendment analysis. Yet, in evaluating contested searches and seizures, current Fourth Amendment doctrine ignores a key determinant of reasonableness, the crime under investigation. As a result, an invasive search of a suspected murderer …