Law Commons^™

Privacy And Consent Over Time: The Role Of Agreement In Fourth Amendment Analysis, Christine Jolls

William & Mary Law Review

No abstract provided.

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.

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 …

Unintentional Levels Of Force In §1983 Excessive Force Claims, Nathan R. Pittman

William & Mary Law Review

No abstract provided.

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 …

Following You Here, There, And Everytwhere: An Investigation Of Gps Technology, Privacy, And The Fourth Amendment, Stephanie Gaylord Forbes

W&M Law Student Publications

No abstract provided.

The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin Henning

William & Mary Law Review

Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles—context, parental authority, and the minor’s capacity—that weave together children’s rights cases. She argues that parental authority too often prevails over children’srights, even when context and demonstrated capacity would supportaffirmation of those rights. Context involves both the physical settingin which Fourth Amendment protections are sought and the nature of the privacy interest at …

The Death Of Suspicion, Fabio Arcila Jr.

William & Mary Law Review

At the nation’s founding, search warrants and the concept of suspicion were well entrenched as a means of limiting governmental search power. This tradition largely explains why today’s Fourth Amendment law includes two foundational black letter rules: the presumptive warrant requirement and the presumptive suspicion requirement. Unfortunately, neither of these rules is correct. Certainly they have historical support, especially in the common law. But whether they reflect the totality of our historic experience is questionable, especially when civil search practices are considered. More importantly, modern developments—such as urban life and technological advancements, the rise of the regulatory state, and post-9/11 …

Georgia V. Randolph, The Red-Headed Stepchild Of An Ugly Family: Why Third Party Consent Search Doctrine Is An Unfortunate Fourth Amendment Development That Should Be Restrained, Aubrey H. Brown

William & Mary Bill of Rights Journal

No abstract provided.

Searching Cell Phones Incident To Arrest: Can Courts And Legislatures Impose Limits On A Bright Line Rule?, Adam M. Gershowitz

Faculty Publications

No abstract provided.

The Iphone Meets The Fourth Amendment, Adam M. Gershowitz

Faculty Publications

Under the search incident to arrest doctrine, police may search the entire body and immediate grabbing space of an arrestee, including the contents of all containers, without any probable cause. Because almost all traffic infractions are arrestable offenses, police have enormous opportunity to conduct such searches incident to arrest. In the near future, these already high-stakes searches will become even more important because millions of drivers will not only possess containers that hold a few scattered papers, such as wallets or briefcases, but also iPhones—capable of holding tens of thousands of pages of personal information. If current Fourth Amendment jurisprudence …

1984 Arrives: Thought(Crime), Technology, And The Constitution, William Federspiel

William & Mary Bill of Rights Journal

No abstract provided.

Sense-Enhanced Searches And The Irrelevance Of The Fourth Amendment, David E. Steinberg

William & Mary Bill of Rights Journal

No abstract provided.

"Sacrificing The End To The Means": The Constitutionality Of Suspicionless Subway Searches, Katherine Lee Martin

William & Mary Bill of Rights Journal

No abstract provided.

Storming The Castle To Save The Children: The Ironic Costs Of A Child Welfare Exception To The Fourth Amendment, Doriane Lambelet Coleman

William & Mary Law Review

No abstract provided.

Fourth Amendment Federalism? The Court's Vacillating Mistrust And Trust Of State Search And Seizure Laws, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Righteous Shooting, Unreasonable Seizure? The Relevance Of An Officer's Pre-Seizure Conduct In An Excessive Force Claim, Aaron Kimber

William & Mary Bill of Rights Journal

No abstract provided.

Rhetorically Reasonable Police Practices: Viewing The Supreme Court's Multiple Discourse Paths, Kathryn R. Urbonya

Faculty Publications

This Article analyzes the United States Supreme Court's numerous and shifting rhetorical discourse paths for declaring whether particular governmental practices constituted unreasonable searches or seizures under the Fourth Amendment to the United States Constitution. It examines how the Court has manipulated classic discourse paths arising from text, history, precedent and structure. It reveals that among and within each of these categories, the Court has created conflicting approaches. The Article argues that the Court's construction of Fourth Amendment reasonableness has depended upon which discourse paths it has selected as well as how it has characterized the values embedded within the discourse …

Affecting Eternity: The Court's Confused Lesson In Board Of Education V. Earls, George M. Dery Iii

William & Mary Bill of Rights Journal

In Board of Education v. Earls, the US. Supreme Court found the random drug testing of schoolchildren who participated in extracurricular activities to be reasonable under the Fourth Amendment. In this Article, Professor Dery argues that this latest extension of the special needs doctrine is both patronizing to student privacy interests and inconsistent with the Court's previous limitation of suspicionless searches in New Jersey v. T.L.O. and Chandler v. Miller. Professor Dery criticizes the Court's Earls decision as a confused lesson in constitutional law, abandoning the very fundamentals of the Fourth Amendment.

Can The "Public Interest" Justify Non-Consensual Searches Of Homes In Bankruptcy Cases?, A. Mechele Dickerson

William & Mary Bill of Rights Journal

No abstract provided.

A Fourth Amendment "Search" In The Age Of Technology: Postmodern Perspectives, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Bits And Bytes: The Carnivore Initiative And The Search And Seizure Of Electronic Mail, Sandy D. Hellums

William & Mary Bill of Rights Journal

This Note examines the application of Fourth Amendment search and seizure doctrines to the interception of electronic mail within the context of the FBI Carnivore initiative. The author argues that the traditional law of electronic surveillance's understanding of communication is outdated and never contemplated new technologies like Carnivore and their far reaching implications. Consequently, the author argues, that to protect our long-understood expectations of privacy, the search and seizure of electronic documents should be analyzed under the traditional papers analysis. To do so, the Supreme Court would afford the interception electronic documents the highest form of constitutional protect available under …

"A Man's Home Is His Castle?": Reflections On The Home, The Family, And Privacy During The Late Nineteenth And Early Twentieth Centuries, Jonathan L. Hafetz

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Individualized School Searches And The Fourth Amendment: What's A School District To Do?, Jason E. Yearout

William & Mary Bill of Rights Journal

As high-profile incidents of school violence appear to become more frequent and severe, public perception has deteriorated to the point where many citizens believe that schools are unsafe and administrators lack the power to control student activity. In their efforts to promote a safe learning environment, many school administrators have attempted to create strict guidelines concerning the power of school personnel to prevent illegal and unsafe activity from taking place at school. However, as administrators devise the rules by which to implement these standards, they are given little guidance by the Supreme Court regarding the application of the Fourth Amendment …

The Long Distance Remand: Florida V. Bostick And The Re-Awakened Bus Search Battlefront In The War On Drugs, Dennis J. Callahan

William & Mary Law Review

No abstract provided.

The Fourth Frontier: With No Clear Path Prepared, Court Takes On Two More Police Powers Cases, Kathryn R. Urbonya

Popular Media

No abstract provided.

Curbside Justice: Court Gives Police The Green Light To Arrest For Minor Infractions, Kathryn R. Urbonya

Popular Media

No abstract provided.

Determining Reasonableness Under The Fourth Amendment: Physical Force To Control And Punish Students, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Personal Does Not Always Equal "Private": The Constitutionality Of Requiring Dna Samples From Convicted Felons And Arrestees, Martha L. Lawson

William & Mary Bill of Rights Journal

In the past couple of decades, the use of DNA testing has become a major debate in criminal law. Many Americans have called for regular use of DNA testing in criminal cases, particularly in the aftermath of the O.J. Simpson murder trial. While these tests can potentially help better ensure justice conducting DNA tests raises fundamental personal privacy concerns. This Note analyzes the development of DNA testing throughout the United States, giving a historical account of how the courts and local police departments have dealt with this testing Finally, the Note argues that the government's interest in mandatory testing of …

Wake Up And Smell The Contraband: Why Courts That Do Not Find Probable Cause Based On Odor Alone Are Wrong, Michael A. Sprow

William & Mary Law Review

No abstract provided.