Law Commons^™

Car Stops, Borders, And Profiling: The Hunt For Undocumented (Illegal?) Immigrants In Border Towns, Brian Gallini, Elizabeth Young

School of Law Faculty Publications and Presentations

The much-discussed Arizona immigration statute, SB 1070, continues an effort—this time at the legislative level—to broaden the discretionary power of law enforcement. Yet, a fascinating question lies at the base of the public’s pervasive criticism of the Act: where have all the critics been? Numerous Supreme Court cases already allow for law enforcement to engage in the very practice—racial and ethnic profiling premised on “reasonable suspicion”—that has incited the emotions of so many citizens nationwide.This Article therefore argues that the Arizona’s SB 1070, while notable for the public response to it, is merely emblematic of a much larger and systemic …

Expanding The Scope Of The Good-Faith Exception To The Exclusionary Rule To Include A Law Enforcement Officer's Reasonable Reliance On Well-Settled Case Law That Is Subsequently Overruled, Ross Oklewicz

Articles in Law Reviews & Journals

In 2009, the Supreme Court handed down several important decisions on criminal procedure. Perhaps unanticipated at the time, two of those decisions have been read together by lower courts to reach dramatically different results. The emerging split has been sharp, bringing with it urgent calls for the Court to intervene.

Laying the foundation for the conflicting decisions was New York v. Belton, in which the Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” …

Stepping Out Of The Vehicle: The Potential Of Arizona V. Gant To End Automatic Searches Incident To Arrest Beyond The Vehicular Context, Angad Singh

Articles in Law Reviews & Journals

“Because the law says we can do it” was the response Officer Griffith offered when asked why officers searched Rodney Gant’s car when he was arrested for driving with a suspended license. Officer Griffith’s honest answer exemplifies the effect of prior Supreme Court decisions on search incident to arrest power in the vehicle context: that a vehicle search incident to arrest is a police entitlement divorced from any rationale whatsoever. Concerns for officer safety and preservation of evidence -- legal justifications that generally permit warrantless searches incident to arrest generally -- had been utterly abandoned by the Court in the …

The Inviolate Home: Housing Exceptionalism In The Fourth Amendment, Stephanie M. Stern

All Faculty Scholarship

The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions. The focus on protection of the physical home has decreased doctrinal efficiency and coherence and derailed Fourth Amendment residential privacy from the core principle of intimate association. This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces …

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

Journal Articles

For more than two months beginning in late December of 2005, police officers in New York State continuously monitored the location and movements of Scott Weaver's van using a surreptitiously attached global positioning system ("GPS") device, known as a "Qball."' The reason Weaver was targeted for police surveillance has never been disclosed. 2 In addition, law enforcement made no attempt to justify the heightened scrutiny of Weaver by seeking the pre-authorization of a warrant from a neutral magistrate.3 Rather, for sixty-five days, the police subjected Weaver to intense surveillance without oversight, interruption, or explanation. 4 More than a year after …

Proportionality, Privacy, And Public Opinion: A Reply To Kerr And Swire, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In 2007, I published Privacy at Risk: The New Government Surveillance and the Fourth Amendment.' The immediate trigger for the book was the recent upsurge in government use of technology to monitor public and private behavior, and more particularly the tremendous increase in government surveillance after 9/11 using techniques such as data mining, phone and computer intercepts, and public camera systems. The primary analytical target of the book, however, was more general: Supreme Court case law that, read broadly, permits much of this technological surveillance to take place without impinging on any constitutional interests. In an effort to counteract this …

The Political Fourth Amendment, Thomas P. Crocker

Faculty Publications

The Political Fourth Amendment builds on Justice Ginsburg's recent dissent in Herring v. United States to argue for a "more majestic conception" of the Fourth Amendment focused on protecting political liberty. To put the point dramatically, we misread the Fourth Amendment when we read it exclusively as a criminal procedure provision focused entirely on either regulating police or protecting privacy. In order to see the Fourth Amendment as contributing to the Constitution's protections for political liberty, and not simply as an invitation to regulate police practice, we must take seriously the fact that the Fourth Amendment's textual purpose is to …

Erie And Federal Criminal Courts, Wayne A. Logan

Scholarly Publications

Today, low-level state and local criminal laws figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms). While police resort to such laws as pretexts to stop and arrest individuals has been frequently addressed, this article provides the first analysis of how federal courts actually interpret and apply the laws. In doing so, the article reveals a surprising reality, long dismissed as a doctrinal impossibility: federal judicial use of the analytic framework of Erie v. Tompkins to resolve criminal cases.

As the article …

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, …

Fourth Amendment Remedial Equilibration: A Comment On Herring V. United States And Pearson V. Callahan, David B. Owens

Articles

In two recent decisions, the Supreme Court addressed remedies under the Fourth Amendment by assuming that this remedial construction did not alter the value of the underlying right meant to be protected by the Constitution. First, in Herring v. United States, the court broadened exceptions to the exclusionary rule and implied that suppression may not be required for "negligent" errors generally. Then, in Pearson v. Callahan, the Court abandoned it's "battle-of-order" rule - which required courts to consider the right before inquiring whether that right was "clearly established" at the time of the violation - when considering qualified …

Reconceiving The Fourth Amendment And The Exclusionary Rule, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

The Death Of Suspicion, Fabio Arcila Jr.

Scholarly Works

This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in …

Substitution Effects: A Problematic Justification For The Third-Party Doctrine Of The Fourth Amendment, Blake Ellis Reid

Publications

In the past half-century, the Supreme Court has crafted a vein of jurisprudence virtually eliminating Fourth Amendment protection in information turned over to third parties - regardless of any subjective expectation of privacy or confidentiality in the information on the part of the revealer. This so-called “third-party” doctrine of the Fourth Amendment has become increasingly controversial in light of the growing societal reliance on the Internet in the United States, where nearly every transaction requires a user to turn information over to at least one third party: the Internet service provider (“ISP”).

Citing the scholarship that has criticized the third-party …

Mapp V. Ohio's Unsung Hero: The Suppression Hearing As Morality Play, Scott E. Sundby

Articles

No abstract provided.

Government Dragnets, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article examines group-focused police investigation techniques - for instance, roadblocks, drug testing programs, area or industry-wide health and safety inspections, data mining, and camera surveillance - a phenomenon referred to as "government dragnets" because these general searches and seizures attempt to cull out bad actors through ensnaring a much larger number of individuals who are innocent of any wrongdoing. The courts have imposed few limitations on dragnets. Recent commentary has either advocated an even more laissez-faire attitude toward these group search and seizures or, at the other end of the spectrum, proposed schemes that would make most of them …

Fourth Amendment Pragmatism, Daniel J. Solove

GW Law Faculty Publications & Other Works

In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) The Coverage Question - Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question - How should the Fourth Amendment regulate this form …

Picture This: Body Worn Video Devices ('Head Cams') As Tools For Ensuring Fourth Amendment Compliance By Police, David A. Harris

Articles

A new technology has emerged with the potential to increase police compliance with the law and to increase officers’ accountability for their conduct. Called “body worn video” (BWV) or “head cams,” these devices are smaller, lighter versions of the video and audio recording systems mounted on the dash boards of police cars. These systems are small enough that they consist of something the size and shape of a cellular telephone earpiece, and are worn by police officers the same way. Recordings are downloaded directly from the device into a central computer system for storage and indexing, which protects them from …