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Full-Text Articles in Law
The Origins And Legacy Of The Fourth Amendment Reasonableness Balancing Model, Kit Kinports
The Origins And Legacy Of The Fourth Amendment Reasonableness Balancing Model, Kit Kinports
Journal Articles
The overwhelming majority of the Supreme Court’s Fourth Amendment cases over the past fifty years have been resolved using a warrant presumption model, which determines the constitutionality of a search or seizure by asking whether law enforcement officials had probable cause and a warrant, or some exception to those requirements. But three decisions, beginning in 2001, mysteriously deviated from that approach and applied a reasonableness balancing model, upholding the searches in those cases after considering the totality of the circumstances and weighing the competing government interests against the defendant’s privacy interests. This balancing approach has justifiably been criticized as amorphous, …
Passing The Sniff Test: Police Dogs As Surveillance Technology, Irus Braverman
Passing The Sniff Test: Police Dogs As Surveillance Technology, Irus Braverman
Journal Articles
In October 2012, the Supreme Court of the United States will review the case of Florida v. Jardines, which revolves around the constitutionality of police canine Franky’s sniff outside a private residence. Essentially, the Court will need to decide whether or not the sniff constitutes a “search” for Fourth Amendment purposes. This Article presents a review of the often-contradictory case law that exists on this question to suggest that underlying the various cases is the Courts’ assumption of a juxtaposed relationship between nature and technology. Where dog sniffs are perceived as a technology, the courts have been inclined to also …
Veteran Police Officers And Three-Dollar Steaks: The Subjective/Objective Dimensions Of Probable Cause And Reasonable Suspicion, Kit Kinports
Journal Articles
This Article addresses two issues surrounding probable cause and reasonable suspicion that test the line between subjective and objective standards in Fourth Amendment jurisprudence: the extent to which a particular police officer’s training and experience ought to be considered in measuring probable cause and reasonable suspicion, and the relevance of the officer’s subjective beliefs about the presence of a weapon in assessing the reasonable suspicion required to justify a frisk. Although both questions have split the lower courts and remain unresolved by the Supreme Court, the majority of courts treat them inconsistently, recognizing the importance of an officer’s training, experience, …
Diminishing Probable Cause And Minimalist Searches, Kit Kinports
Diminishing Probable Cause And Minimalist Searches, Kit Kinports
Journal Articles
This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are …