Law Commons^™

Replacing The Exclusionary Rule: Fourth Amendment Violations As Direct Criminal Contempt, Ronald J. Rychlak

Chicago-Kent Law Review

The exclusionary rule, which bars from admission evidence obtained in violation of the Fourth Amendment's prohibition of unreasonable searches and seizures, is a bedrock of American law. It is highly controversial, but there seems to be no equally effective way to protect citizens' rights. This paper proposes that an admissibility standard be adopted that is in keeping with virtually every jurisdiction around the world other than the United States. Thus, before ruling evidence inadmissible, the court would consider the level of the constitutional violation, the seriousness of the crime, whether the violation casts substantial doubt on the reliability of the …

Criminal Law And Procedure, Michael T. Judge, Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.

Changing Tides: A Lesser Expectation Of Privacy In A Post 9-11world, Derek M. Alphran

derek m Alphran

Abstract: Derek Alphran, Associate Professor The War on Terror is changing society’s views about the Fourth Amendment. To what extent should the American public believe that privacy should be subject to greater restrictions for the greater good? Should the Katz test be viewed differently in light of concerns about the need for surveillance in light of post 9/11 domestic terrorist threats? What is a reasonable search under the today’s changing expectation of privacy. This article addresses these questions examines how the Katz standard has changed historically and examines whether the special needs exception should be expanded to include domestic terror …

Warshak: A Test Case For The Intersection Of Law Enforcement And Cyber Security, Michael C. Mcnerney

Michael C McNerney

Often times, the lines between criminal investigations and intelligence activities can become blurred. How far can a government agency go in gathering electronic information on an American citizen suspected of a crime? What implications are there for Americans suspected of terrorist activities? The American people want their government to have the tools to keep them safe but they also want to be free from unreasonable searches and seizures. There are many difficult questions but very little settled law on the subject. Although only a small piece of the puzzle, a recent decision by the Sixth Circuit in a case called …

Step Out Of The Car: License, Registration, And Dna Please, Brian Gallini

School of Law Faculty Publications and Presentations

No Arkansas appellate court has examined the constitutionality of the recently enacted House Bill 1473 – better known as “Juli’s Law” – which allows officers to take DNA samples from suspects arrested for capital murder, murder in the first degree, kidnapping, sexual assault in the first degree, and sexual assault in the second degree. This Essay contends that Juli’s Law violates the Fourth Amendment of the federal constitution. Part I highlights certain features of the statute and explores the rationale underlying its enactment. Part II discusses the only published decision upholding the practice of taking of DNA samples from certain …

The Google Dilemma, James Grimmelmann

James Grimmelmann

Web search is critical to our ability to use the Internet. Whoever controls search engines has enormous influence on all of us; whoever controls the search engines, perhaps, controls the Internet itself. This short essay (based on talks given in January and April 2008) uses the stories of five famous search queries to illustrate the conflicts over search and the enormous power Google wields in choosing whose voices are heard on the Internet.

The Language Of Consent In Police Encounters, Janice Nadler, J.D. Trout

Faculty Working Papers

In this chapter, we examine the nature of conversations in citizen-police encounters in which police seek to conduct a search based on the citizen's consent. We argue that when police officers ask a person if they can search, citizens often feel enormous pressure to say yes. But judges routinely ignore these pressures, choosing instead to spotlight the politeness and restraint of the officers' language and demeanor. Courts often analyze the language of police encounters as if the conversation has an obvious, context-free meaning. The pragmatic features of language influence behavior, but courts routinely ignore or deny this fact. Instead, current …

R. V. Ha: Upholding General Warrants Without Asking The Right Questions, Steve Coughlan

Articles, Book Chapters, & Popular Press

To date, in considering general warrants, courts have been failing even to think about a distinction which ought to be seen as essential. The distinction arises in connection with the requirement in section 487.01 (l)(c) of the Criminal Code that a general warrant is only available when no other provision in any statute could authorize the search. In R. v. Ha, reported ante p. 24, the Ontario Court of Appeal notes that: The simple fact is that there is no provision in the Code, the CDSA, or in any other federal statute that would authorize an unlimited number of covert …

The Framers' Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, Fabio Arcila, Jr.

Scholarly Works

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated for regulatory purposes. What attention has been paid concludes that the Framers were divided about how accessible search remedies should be. This Article explains why this conventional account is mostly wrong and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law. In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The …

Dangerously Sidestepping The Fourth Amendment: How Courts Are Allowing Third-Party Consent To Bypass Warrants For Searching Password-Protected Computer, David D. Thomas

Cleveland State Law Review

This Note sets forth that it is unacceptable for law enforcement to ignore the presence of passwords simply because they may not be immediately visible. Furthermore, it is contrary to the Fourth Amendment for law enforcement to rely on third parties who grant access to search the data without knowledge of the password to unlock the data. Principles hammered out over time for searches and seizures of physically locked objects can easily be transposed and extended to fit the virtual world while still providing people the protections of the Fourth Amendment.

How Accountability-Based Policing Can Reinforce - Or Replace - The Fourth Amendment Exclusionary Rule, David A. Harris

Articles

In Hudson v. Michigan, a knock-and-announce case, Justice Scalia's majority opinion came close to jettisoning the Fourth Amendment exclusionary rule. The immense costs of the rule, Scalia said, outweigh whatever benefits might come from it. Moreover, police officers and police departments now generally follow the dictates of the Fourth Amendment, so the exclusionary rule has outlived the reasons that the Court adopted it in the first place. This viewpoint did not become the law because Justice Kennedy, one member of the five-vote majority, withheld his support from this section of the opinion. But the closeness of the vote on …

Step Out Of The Car: License, Registration, And Dna Please, Brian Gallini

Brian Gallini