Law Commons^™

The Fourth Amendment Implications On The Real-Time Tracking Of Cell Phones Through The Use Of “Stingrays”, W. Scott Kim

Fordham Intellectual Property, Media and Entertainment Law Journal

The rights secured to us by the Fourth Amendment were the driving force behind the American Revolution. Today, law enforcement seems to forget that fact when they use cell-site simulators, commonly referred to by the brand name “Stingray,” without first securing a warrant. These devices mimic cell phone towers and force cell phones near them to connect to the cell-site simulator instead of a tower, thereby allowing the user of the simulator device to track a cell phone to its precise location. Ninety-two percent of Americans own a cell phone and forty-six percent of smartphone users say they could not …

Fourth Amendment Fiduciaries, Kiel Brennan-Marquez

Fordham Law Review

Fourth Amendment law is sorely in need of reform. To paraphrase Justice Sotomayor’s concurrence in United States v. Jones, the idea that people have no expectation of privacy in information voluntarily shared with third-parties—the foundation of the widely reviled “third-party doctrine”—makes little sense in the digital age.

In truth, however, it is not just the third-party doctrine that needs retooling today. It is the Fourth Amendment’s general approach to the problem of “shared information.” Under existing law, if A shares information with B, A runs the risk of “misplaced trust”—the risk that B will disclose the information to law …

Unlimited Data?: Placing Limits On Searching Cell Phone Data Incident To A Lawful Arrest, Thomas Rosso

Fordham Law Review

The “search incident to arrest exception” is one of several exceptions to the general requirement that police must obtain a warrant supported by probable cause before conducting a search. Under the exception, an officer may lawfully search an arrestee’s person and the area within the arrestee’s immediate control without a warrant or probable cause, so long as the search is conducted contemporaneously with the lawful arrest. The U.S. Supreme Court has justified the exception based on the need for officers to discover and remove any weapons or destructible evidence that may be within the arrestee’s reach. Additionally, the Court has …

Who Is Secure?: A Framework For Arizona V. Gant, David S. Chase

Fordham Law Review

In April 2009, the U.S. Supreme Court in Arizona v. Gant narrowed the scope of an automobile search incident to arrest. Prior to Gant, officers were permitted to search the entire automobile passenger compartment incident to the arrest of a vehicle occupant for any offense. The Gant Court rejected this broad interpretation and limited officers’ ability to search to two circumstances: (1) when an arrestee is unsecured and within reaching distance of the vehicle or (2) when it is reasonable for officers to believe the vehicle might contain evidence related to the crime of the arrest. The Gant decision raises …

Moving Targets: Placing The Good Faith Doctrine In The Context Of Fragmented Policing, Hadar Aviram, Jeremy Seymour, Richard A. Leo

Fordham Urban Law Journal

The debate sparked by Herring v. United States is a microcosm of the quintessential debate about the scope of the Fourth Amendment’s exclusionary rule and ultimately the appropriate breadth of police authority and constitutional review by courts. Offering a new reading of the decision, this article argues that Herring reflects a healthy dosage of real politic and an acknowledgment that American policing is characterized by a fragmented, localized structure with little overview and control, and much reliance on local agencies. Part I presents the authors’ interpretation of Herring as a case hinging upon the question “who made the mistake?” as …

The Exclusionary Rule Redux - Again, Lloyd L. Weinreb

Fordham Urban Law Journal

The exclusionary rule itself is not very complicated: if the police obtain evidence by means that violate a person’s rights under the Fourth Amendment, the evidence is not admissible against that person in a criminal trial. The basic provision, however, has been freighted with innumerable epicycles, and epicycles on epicycles ever since it was made part of Fourth Amendment jurisprudence. The exclusionary rule survives in a kind of doctrinal purgatory, neither accepted fully into the constitutional canon nor cast into the outer darkness. It survives, but its reach is uncertain, its rational questioned, and its value doubted. Hudson v. Michigan …

"The Right Of The People": The Nsa, The Fisa Amendments Act Of 2008, And Foreign Intelligence Surveillance Of Americans Overseas, Jonathan D. Forgang

Fordham Law Review

In October 2008, two former National Security Agency communications analysts told reporters that the NSA used satellite technology to monitor the phone conversations of Americans living in the Middle East. This revelation highlighted an unresolved area of surveillance law—the privacy rights of U.S. citizens against their own government when they are outside the borders of the United States. Though the FISA Amendments Act of 2008 has created a procedure for the judicial review of this type of surveillance, this review is only a general oversight and judges on the Foreign Intelligence Surveillance Court are not required to individually review every …

Protections For Electronic Communications: The Stored Communications Act And The Fourth Amendment, Alexander Scolnik

Fordham Law Review

As e-mail and other forms of electronic communications began becoming widely used, Congress recognized the need to protect these new forms of communication from impermissible intrusion. Unsure whether the flexible approach to determining the extent of Fourth Amendment protections as announced in Katz v. United States would extend to electronic communications, Congress enacted the Electronic Communications Privacy Act (ECPA) to ensure a baseline level of protection. This Note argues that the Fourth Amendment does extend to electronic communications and, therefore, the provisions of the ECPA that allow the government to access certain electronic communications without a search warrant are unconstitutional.

The Continuing Evolution Of Consent And Authority In Digital Search And Seizure, Aaron Stanley

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Assessing Fourth Amendment Challenges To Dna Extraction Statutes After Samson V. California, Charles J. Nerko

Fordham Law Review

DNA plays an indespensable role in modern law enforcement, and courts uniformly find that DNA extraction statutes targeting criminals satisfy the Fourth Amendment. Courts differ on which Fourth Amendment test--totality of the circumstances or special needs--ought to be employed in this context. This Note concludes the courts should apply Samson v. California's less stringent totality of the circumstances test to analyze DNA extraction statutes in order to maintain the integrity of the special needs test.

Subway Searches: Which Exception To The Warrant And Probable Cause Requirements Applies To Suspicionless Searches Of Mass Transit Passengers To Prevent Terrorism?, Charles J. Keeley Iii

Fordham Law Review

No abstract provided.

Is Data Mining Ever A Search Under Justice Stevens's Fourth Amendment?, Joseph T. Thai

Fordham Law Review

No abstract provided.

Say Hello And Wave Goodbye: The Legitimacy Of Plain View Seizures At The Threshold Of The Home, Evan B. Citron

Fordham Law Review

No abstract provided.

Fourth Amendment Codification And Professor Kerr's Misguided Call For Judicial Deference, Daniel J. Solove

Fordham Law Review

No abstract provided.

Congress, The Courts, And New Technologies: A Response To Professor Solove , Orin S. Kerr

Fordham Law Review

No abstract provided.

The Scope Of Police Questioning During A Routine Traffic Stop: Do Questions Outside The Scope Of The Original Justification For The Stop Create Impermissible Seizures If They Do Not Prolong The Stop? , Bill Lawrence

Fordham Urban Law Journal

The issue this Note addresses is whether a police officer, during a routine traffic stop, violates a person's Fourth Amendment rights when the officer's questions stray from the original reason for the stop. Resolution of the issue pits privacy concerns against the state's interest in effective law enforcement. With circuits split over the issue, and the Supreme Court not yet plainly ruling on it, this Note aims to provide a narrow solution to the problem.Part I explains the Fourth Amendment reasonableness standard and discusses the line of Supreme Court cases from Terry v. Ohio14 to Florida v. Bostick 5 that …

Stories Of Fourth Amendment Disrespect: From Elian To The Internment, Andrew E. Taslitz

Fordham Law Review

No abstract provided.

What Were They Thinking? Fourth Amendment Unreasonableness In Atwater V. City Of Lago Vista, Richard S. Frase

Fordham Law Review

No abstract provided.

What Big Eyes And Ears You Have!: A New Regime For Covert Governmental Surveillance, Mark G. Young

Fordham Law Review

No abstract provided.

The Fourth Amendment: Relaxing The Rule In Child Abuse Investigations, Jillian Grossman

Fordham Urban Law Journal

This Note considers the Fourth Amendment concerns raised by strip searches of children in child abuse investigations. The Note first describes the evolution of children's rights and identifies the interests of the child and parents in child abuse investigations. The Note then analyzes the two exceptions under which a nude search of a child's body may be conducted - consent and exigent circumstances, as well as the qualified immunity defense with respect to social workers and police officers. Finally, this Note concludes that a child should possess the authority to consent to a strip search in a child abuse investigation …

Ethics, Law Enforcement, And Fair Dealing: A Prosecutor's Duty To Disclose Nonevidentiary Information, David Aaron

Fordham Law Review

No abstract provided.

Expanding New York's Dna Database: The Future Of Law Enforcement, Robert W. Schumacher Ii

Fordham Urban Law Journal

This Article discusses a proposal by New York City Police Commissioner Howard Safir to expand New York's DNA Database. The proposal would allow the police to obtain DNA from anyone arrested for a recordable offense. The Article describes how DNA is used by law enforcement from the molecular level to DNA databases. The Article then describes Safir's proposal, including the controversy surrounding Fourth Amendment privacy concerns and fears of potential misuse of the DNA information by law enforcement. Despite these concerns, in light of New York's recidivism rates, crime trends, administrative costs, and investigative efficiency, the Article argues that Safir's …

The Automatic Companion Rule: An Appropriate Standard To Justify The Terry Frisk Of An Arrestee's Companion?, Jeanne C. Serocke

Fordham Law Review

No abstract provided.

The Inevitable Discovery Exception, Primary Evidence, And The Emasculation Of The Fourth Amendment, Jessica Forbes

Fordham Law Review

No abstract provided.

"Wrong But Reasonable": The Fourth Amendment Particularity Requirement After United States V. Leon, Martha Applebaum

Fordham Urban Law Journal

This Note analyzes the application of the good-faith exception to search warrant particularity violations under the Fourth Amendment. The question compelled by United States v. Leon and Massachusetts v. Sheppard is when, if ever, a particularity-defective warrant will sustain an officer's "reasonable reliance.'' The Note briefly discusses how "particularity" traditionally has been assessed under the fourth amendment. The author examines the Supreme Court's holding in Massachusetts v. Sheppard, and contrasts several circuit court cases that have applied Sheppard's "objectively reasonable" standard of good faith to warrants involving particularity defects. Finally, the Note concludes that the approach taken by the Second …

Aerial Surveillance: Overlooking The Fourth Amendment , Susan A. Higgins

Fordham Law Review

No abstract provided.

Warrantless Container Searches Under The Automobile And Search Incident Exceptions, Jody Cosgrove

Fordham Urban Law Journal

Warrantless searches of containers had historically been sustained under the exceptions to the fourth amendment protections developed for cases where exigent circumstances require immediate action. The Supreme Court of the United States then limited warantless container searches in United States v. Chadwick and Arkansas v. Sanders but these limitations were subject to various interpretations by the lower courts. This Note examines the various interpretations of these conflicts and their areas of conflict. It then argues for a strict interpretation of the Supreme Court limitations which is more consistent with the traditional exceptions to the fourth amendment's protections against unreasonable searches …

Foreign Security Surveillance―Balancing Executive Power And The Fourth Amendment, Charles G. La Bella

Fordham Law Review

No abstract provided.

Reason And The Fourth Amendment―The Burger Court And The Exclusionary Rule , Norman M. Robertson

Fordham Law Review

No abstract provided.

Case Note: Criminal Law - Due Process - Statute Proscribing Loitering For The Purpose Of Prostitution Is Not Unconstitutionally Vague, Sayde J. Markowitz

Fordham Urban Law Journal

In this case note, Sayde J. Markowitz analyzes People v. Smith, 88 Misc. 2d 590, 388 N.Y.S.2d 221 (Crim Ct. 1976), rev'd 393 N.Y.S.2d 229 (App. Div. 1st Dep't 1977). At approximately 2:15 a.m. on July 12, 1976, a police officer observed defendant female converse with two male passersby. Soon thereafter, defendant conversed with a third male with whom she entered a building known to accommodate prostitutes and their clientele. The two left the building a short time later. Defendant Smith was arrested and charged with violating section 240.37 of the New York Penal Law, which prohibits loitering for the …