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Full-Text Articles in Law
Hassle, Jane Bambauer
Hassle, Jane Bambauer
Michigan Law Review
Before police perform a search or seizure, they typically must meet the probable cause or reasonable suspicion standard. Moreover, even if they meet the appropriate standard, their evidence must be individualized to the suspect and cannot rely on purely probabilistic inferences. Scholars and courts have long defended the distinction between individualized and purely probabilistic evidence, but existing theories of individualization fail to articulate principles that are descriptively accurate or normatively desirable. They overlook the only benefit that the individualization requirement can offer: reducing hassle. Hassle measures the chance that an innocent person will experience a search or seizure. Because some …
No More Shortcuts: Protect Cell Site Location Data With A Warrant Requirement, Lauren E. Babst
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 …
Due Process For Cash Civil Forfeitures In Structuring Cases, Timothy J. Ford
Due Process For Cash Civil Forfeitures In Structuring Cases, Timothy J. Ford
Michigan Law Review
On January 22, 2013, Tarik “Terry” Dehko sat down to pay the bills for his small Michigan grocery store when a federal agent entered his office. The agent told Dehko that the Internal Revenue Service (IRS) had executed a seizure warrant and taken the market’s entire bank account—more than $35,000. When Dehko asked how he could run his business without its bank account, the agent replied, “I don’t care.” The government did not charge Dehko with a crime that day. In fact, Dehko had never been charged with any crime in his life. Instead, the government waited until July 19 …
The Politics Of Privacy In The Criminal Justice System: Information Disclosure, The Fourth Amendment, And Statutory Law Enforcement Exemptions, Erin Murphy
Michigan Law Review
When criminal justice scholars think of privacy, they think of the Fourth Amendment. But lately its domain has become far less absolute. The United States Code currently contains over twenty separate statutes that restrict both the acquisition and release of covered information. Largely enacted in the latter part of the twentieth century, these statutes address matters vital to modern existence. They control police access to driver's licenses, educational records, health histories, telephone calls, email messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards - ranging from …
The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr
The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr
Michigan Law Review
In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that …
Striking A Sincere Balance: A Reasonable Black Person Standard For "Location Plus Evasion" Terry Stops, Mia Carpiniello
Striking A Sincere Balance: A Reasonable Black Person Standard For "Location Plus Evasion" Terry Stops, Mia Carpiniello
Michigan Journal of Race and Law
Randall Susskind originally proposed the "reasonable African American standard” for Terry stops as a way to minimize racial disparities in Fourth Amendment jurisprudence. This paper will expand upon Susskind's suggested standard within the specific context of "location plus evasion" stops, in which suspects are stopped upon flight in a high-crime neighborhood. Part one will present the reasonable Black person standard in the context of Illinois v. Wardlow, a recent "location plus evasion case." Part one will then show how this alternative standard better accounts for Wardlow's "raced" decision to flee, the police officers' "raced" decision to stop him, and …
An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin
An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin
Michigan Journal of International Law
This article takes a comparative and empirical look at two of the most significant methods of police investigation: searches for and seizures of tangible evidence and interrogation of suspects. It first compares American doctrine regulating these investigative tools with the analogous rules predominant in Europe. It then discusses research on the American system that sheds light on the relative advantages and disadvantages of the two regulatory regimes.
The Adversity Of Race And Place: Fourth Amendment Jurisprudence In Illinois V. Wardlow, 528 S. Ct. 673 (2000), Adam B. Wolf
The Adversity Of Race And Place: Fourth Amendment Jurisprudence In Illinois V. Wardlow, 528 S. Ct. 673 (2000), Adam B. Wolf
Michigan Journal of Race and Law
This Case Note lays out Wardlow's pertinent facts, describes the decisions of the Court and lower courts, and then analyzes the ramifications of the Court's holding. In particular, this Case Note argues that the Court's ruling recognizes substantially less Fourth Amendment protections for people of color and indigent citizens than for wealthy Caucasians. This perpetuates a cycle of humiliating experiences, as well as fear and mistrust of the police by many poor people of color.
Fourth Amendment Accommodations: (Un)Compelling Public Needs, Balancing Acts, And The Fiction Of Consent, Guy-Uriel E. Charles
Fourth Amendment Accommodations: (Un)Compelling Public Needs, Balancing Acts, And The Fiction Of Consent, Guy-Uriel E. Charles
Michigan Journal of Race and Law
The problems of public housing-including crime, drugs, and gun violence- have received an enormous amount of national attention. Much attention has also focused on warrantless searches and consent searches as solutions to these problems. This Note addresses the constitutionality of these proposals and asserts that if the Supreme Court's current Fourth Amendment jurisprudence is taken to its logical extremes, warrantless searches in public housing can be found constitutional. The author argues, however, that such an interpretation fails to strike the proper balance between public need and privacy in the public housing context. The Note concludes by proposing alternative consent-based regimes …
The Emerging International Consensus As To Criminal Procedure Rules, Craig M. Bradley
The Emerging International Consensus As To Criminal Procedure Rules, Craig M. Bradley
Michigan Journal of International Law
This article will demonstrate that these general claims, as well as certain observations about specific countries, were, with one significant exception, substantially wrong when they were written. More importantly, due to significant developments in several countries in the years since those reports came out, they are even more wrong now. That is, not only have the U.S. concepts of pre-interrogation warnings to suspects, a search warrant requirement, and the use of an exclusionary remedy to deter police misconduct been widely adopted, but in many cases other countries have gone beyond the U.S. requirements.
Narrowing The Scope Of Civil Drug Forfeiture: Section 881, Substantial Connection And The Eighth Amendment, James B. Speta
Narrowing The Scope Of Civil Drug Forfeiture: Section 881, Substantial Connection And The Eighth Amendment, James B. Speta
Michigan Law Review
This Note offers two justifications for narrowing the scope of section 881 forfeiture. Part I argues that courts should apply the substantial connection test to section 881 forfeitures. This Part analyzes the statute using the traditional tools of statutory interpretation. While the text of the statute seems to support the broadest possible interpretation, the legislative history and context of adoption suggest that the substantial connection test is consistent with Congressional intent. In amending section 881, subsequent Congresses have favored application of the substantial connection test. Consistent with this narrower reading, present strategy in the "war on drugs" focuses stiff penalties …
Police-Obtained Evidence And The Constitution: Distinguishing Unconstitutionally Obtained Evidence From Unconstitutionally Used Evidence, Arnold H. Loewy
Police-Obtained Evidence And The Constitution: Distinguishing Unconstitutionally Obtained Evidence From Unconstitutionally Used Evidence, Arnold H. Loewy
Michigan Law Review
The article will consider four different types of police-obtained evidence: evidence obtained from an unconstitutional search and seizure, evidence obtained from a Miranda violation, confessions and lineup identifications obtained in violation of the sixth amendment right to counsel, and coerced confessions. My conclusions are that evidence obtained from an unconstitutional search and seizure is excluded because of the police misconduct by which it was obtained. On the other hand, evidence obtained from a Miranda violation is (or ought to be) excluded because use of that evidence compromises the defendant's procedural right not to be compelled to be a witness against …
"Seizures" Typology: Classifying Detentions Of The Person To Resolve Warrant, Grounds, And Search Issues, Wayne R. Lafave
"Seizures" Typology: Classifying Detentions Of The Person To Resolve Warrant, Grounds, And Search Issues, Wayne R. Lafave
University of Michigan Journal of Law Reform
This seizures typology constitutes a most important part of extant fourth amendment doctrine. The precision with which and perspective from which such classifications are drawn is obviously a matter of considerable interest to the police, who must in the first instance resolve these warrant, grounds, and search issues. It is also an appropriate subject of broader concern, as the shape of these categories has a critical bearing upon the effectiveness of our law enforcement processes and the extent of our protected liberty and privacy. The following comments are directed to this seizures typology.
Watching The Judiciary Watch The Police, Jon O. Newman
Watching The Judiciary Watch The Police, Jon O. Newman
Michigan Law Review
A Review of Police Practices and the Law: Essays from the Michigan Law ReviewThe University of Michigan Press
Search And Seizure: A Treatise On The Fourth Amendment, William H. Erickson
Search And Seizure: A Treatise On The Fourth Amendment, William H. Erickson
Michigan Law Review
A Review of Search and Seizure: A Treatise on the Fourth Amendment by Wayne R. LaFave
Reconsideration Of The Katz Expectation Of Privacy Test, Michigan Law Review
Reconsideration Of The Katz Expectation Of Privacy Test, Michigan Law Review
Michigan Law Review
This Note, by modifying certain aspects of the reasonable expectation of privacy test, offers a theory that attempts to identify the minimum content of the fourth amendment. In the first section, the Note examines the reasonable expectation of privacy test and considers whether it has been or can be applied in a manner that fails to protect the right to have certain minimum expectations of privacy. It analyzes both the "actual" and the "reasonable" expectation requirements, identifies weaknesses inherent in the current application of these requirements, and suggests certain ways in which they might be refined. In the second section, …
The Concept Of Privacy And The Fourth Amendment, Steven C. Douse
The Concept Of Privacy And The Fourth Amendment, Steven C. Douse
University of Michigan Journal of Law Reform
This Article attempts at a minimum to offer a common background and frame of reference for defining and comparing myriad facets of the law. If successful, they furnish a model for the integration of these many facets. This inquiry begins with an examination of the proposition that the essence of the fourth amendment is protection of a right of privacy. The concept of privacy is then defined and elaborated, both without and within the constitutional context. These conclusions are further extended in an exploration of mechanisms for defining the invasions and protection of fourth amendment privacy.
The Warren Court And Criminal Procedure, A. Kenneth Pye
The Warren Court And Criminal Procedure, A. Kenneth Pye
Michigan Law Review
On October 5, 1953, Earl Warren became Chief Justice of the United States. During the fifteen years of his tenure as Chief Justice, fundamental changes in criminal procedure have resulted· from decisions of what is popularly called "the Warren Court." There may be a legitimate difference of opinion whether these changes constitute a "criminal law revolution" or merely an orderly evolution toward the application of civilized standards to the trial of persons accused of crime. Whatever the characterization, however, there can be little doubt that the developments of the past fifteen years have unalterably changed the course of .the administration …
"Street Encounters" And The Constitution: Terry, Sibron, Peters, And Beyond, Wayne R. Lafave
"Street Encounters" And The Constitution: Terry, Sibron, Peters, And Beyond, Wayne R. Lafave
Michigan Law Review
In light of the surfeit of law review commentary on the subject of stop and frisk, a word about what follows is in order. This Article is not intended to be a restatement or summary of the recent debate on stop and frisk. Terry and its companions have put some of the issues to rest and pushed others to the forefront, and with the resulting change in the battle lines the time is ripe for a reassessment. The concern here is with the approach taken by the Supreme Court in Terry, Sibron, and Peters, and the emphasis is …