Law Commons^™

The Drones Are Coming! Will The Fourth Amendment Stop The Threat To Our Privacy., Robert Molko

Robert Molko

The Drones are coming!

Will the Fourth Amendment Stop their Threat to our Privacy?

Local police have begun to use drones and are planning to expand their use of to survey communities for criminal activity.

On February 14, 2012, President Obama signed the “FAA Modernization and Reform Act of 2012″ into law; it requires the FAA to expedite the process to authorize both public and private use of drones in the national navigable airspace.

The Fourth Amendment of the U.S. Constitution protects our privacy from unreasonable intrusions by the government and we have come to depend on that.

Today, in …

Hold On: The Remarkably Resilient, Constitutionally Dubious "48-Hour Hold", Steven Mulroy

Steven Mulroy

This article discusses the surprisingly widespread, little-known practice of “48-hour holds,” where police detain a suspect without charge or access to bail for up to 48 hours to continue their investigation; at the end of 48 hours, they either charge or release him. Although it has not been discussed in the scholarly literature, the practice has occurred in a number of large local jurisdictions over the past few decades, and continues today in some of them. The “holds” often take place, admittedly or tacitly, without the probable cause needed to charge a defendant, and thus in violation of the Fourth …

Law, Dissonance And Remote Computer Searches, Susan W. Brenner

Susan Brenner

This article examines the rule dissonance that can arise when law enforcement officers from one jurisdiction, e.g., the United States, remotely search a computer in another jurisdiction, e.g., Russia. It explains that such a search occurred in 2000, when Federal Bureau of Investigation agents tricked two Russian cybercriminals to Seattle and tricked them into using laptops loaded with spyware to access their computer in Russia. The FBI agents then used the usernames and passwords the spyware recorded to access the Russian computer and download data, which was used to prosecute the Russians for violating U.S. cybercrime law. One moved to …

A Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence, David C. Gray

David C. Gray

Much of the Supreme Court’s contemporary Fourth Amendment exclusionary rule jurisprudence is constructed upon an analytic mistake that H.L.A. Hart described in another context as a “spectacular non sequitur.” That path to irrelevance is paved by the Court’s recent insistence that the sole justification for excluding evidence seized in violation of the Fourth Amendment is the prospect of deterring law enforcement officers. This deterrence-only approach ignores or rejects more principled justifications that inspired the rule at its genesis and have sustained it through the majority of its history and development. More worrisome, however, is the conceptual insufficiency of deterrence considerations …

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins

Renée M. Hutchins

No abstract provided.

The Court Misses The Point Again In United States V. Jones: An Opt-In Model For Privacy Protection In A Post Google-Earth World, Mary G. Leary

Mary G Leary

“Nothing is private anymore.” This is an oft repeated sentiment by many Americans, not to mention the focus of judicial confusion and legislative blustering. In the wake of publicly available technologies such as Google Earth, internet tracking, cell phone triangulation, to name just a few, many people feel unable to prevent the government or anyone from obtaining private information. While this may seem simply a function of a modern world, this reality creates a fundamental problem for Fourth Amendment jurisprudence which has heretofore gone unrecognized. The Fourth Amendment protects citizens from unreasonable searches and seizures. Therefore, in order for the …

Arizona V. Gant: The Good, The Bad, And The Meaning Of Reasonable Belief, Geoffrey S. Corn

Geoffrey S. Corn

Reasonable belief. Use of this phrase by the Supreme Court in Arizona v. Gant transformed what could have been a clear and logical holding into a source of potential uncertainty. At its core, Gant constricts the authority to search an automobile incident to lawful arrest (SITLA), an authority established by the Court almost thirty years earlier in New York v. Belton. The Court concluded Belton had evolved to a point that could no longer be justified by the underlying exigency rationale for SITLA, creating an automatic and unrestricted search authority whenever the police arrested an occupant or recent occupant of …

The Supreme Court's Contemporary Silver Platter Doctrine, David Gray, Meagan Cooper, David Mcaloon

David C. Gray

In a line of cases beginning with United States v. Calandra, the Court has created a series of exceptions to the Fourth Amendment exclusionary rule that permit illegally seized evidence to be admitted in litigation forums collateral to criminal trials. This “collateral use” exception allows the government to profit from Fourth Amendment violations in grand jury investigations, civil tax suits, habeas proceedings, immigration removal procedures, and parole revocation hearings. In this essay we argue that these collateral use exceptions raise serious conceptual and practical concerns. The core of our critique is that the collateral use exception reconstitutes a version of …