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Articles 1 - 19 of 19
Full-Text Articles in Law
Beyond Law Enforcement: Camreta V. Greene, Child Protection Investigations, And The Need To Reform The Fourth Amendment Special Needs Doctrine, Josh Gupta-Kagan
Beyond Law Enforcement: Camreta V. Greene, Child Protection Investigations, And The Need To Reform The Fourth Amendment Special Needs Doctrine, Josh Gupta-Kagan
Faculty Publications
The Fourth Amendment “special needs” doctrine distinguishes between searches and seizures that serve the “normal need for law enforcement” and those that serve some other “special need,” excusing non-law enforcement searches and seizures from the warrant and probable cause requirements. The Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not those that threaten important non-criminal constitutional rights.
Child protection investigations illustrate the problem: Millions of times each year, state child protection authorities search families’ homes, and seize children for interviews about alleged maltreatment. Only a minority of these investigations involve an …
Policing Identity, Wayne A. Logan
Policing Identity, Wayne A. Logan
Scholarly Publications
Identity has long played a critical role in policing. Learning “who” an individual is not only affords police knowledge of possible criminal history, but also of “what” an individual might have done. To date, however, these matters have eluded sustained scholarly attention, a deficit that has assumed ever greater significance as government databases have become more comprehensive and powerful. Identity evidence, in short, has and continues to suffer from an identity crisis, which this Article seeks to remedy. The Article does so by first surveying the methods historically used by police to identify individuals, from nineteenth-century efforts to measure bodies …
Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert
Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert
Articles
Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s …
New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo
New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo
All Faculty Scholarship
No abstract provided.
The Supreme Court's Contemporary Silver Platter Doctrine, David C. Gray, Meagan Cooper, David Mcaloon
The Supreme Court's Contemporary Silver Platter Doctrine, David C. Gray, Meagan Cooper, David Mcaloon
Faculty Scholarship
In a line of cases beginning with United States v. Calandra, the Court has created a series of exceptions to the Fourth Amendment exclusionary rule that permit illegally seized evidence to be admitted in litigation forums collateral to criminal trials. This “collateral use” exception allows the government to profit from Fourth Amendment violations in grand jury investigations, civil tax suits, habeas proceedings, immigration removal procedures, and parole revocation hearings. In this essay we argue that these collateral use exceptions raise serious conceptual and practical concerns. The core of our critique is that the collateral use exception reconstitutes a version of …
Drawing Lines: Unrelated Probable Cause As A Prerequisite To Early Dna Collection, David H. Kaye
Drawing Lines: Unrelated Probable Cause As A Prerequisite To Early Dna Collection, David H. Kaye
Journal Articles
Swabbing the inside of a cheek has become part of the custodial arrest process in many jurisdictions. The majority view (thus far) is that routinely collecting DNA before conviction (and analyzing it, recording the results, and comparing them to DNA profiles from crime-scene databases) is consistent with Fourth Amendment protections against unreasonable searches and seizures. However, some judges and commentators have argued that DNA sampling in advance of a determination by a judge or grand jury of probable cause for the arrest or charge is unconstitutional. This essay shows that this demand is largely unfounded. Either warrantless, suspicionless DNA collection …
Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports
Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports
Journal Articles
Although few noticed the link between them, two Supreme Court cases decided in the same week last Term, Ashcroft v. al-Kidd and Camreta v. Greene, both involved the Fourth Amendment implications of detaining witnesses to a crime. Al-Kidd, an American citizen, was arrested under the federal material witness statute in connection with an investigation into terrorist activities, and Greene, a nine-year-old suspected victim of child abuse, was seized and interrogated at school by two state officials. The opinions issued in the two cases did little to resolve the constitutional issues that arise in witness detention cases, and in fact …
Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel R. Koslosky
Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel R. Koslosky
UF Law Faculty Publications
Many anti-terrorism measures are enacted with broad public support. There is often a general willingness on the part of the public to accept greater civil liberties deprivations in the face of a specific threat, or otherwise in times of general crisis, than would otherwise be the case. Sweeping anti-terrorism legislation is frequently crafted in reaction to the presence, or perceived presence, of immense, imminent danger. The medium and long-term consequences of the legislation may not fully be comprehended when political leaders and policymakers take swift action in the face strong public pressure in light of a recent terrorist attack or …
A Unified Theory For Seizures Of The Person, Ronald J. Bacigal
A Unified Theory For Seizures Of The Person, Ronald J. Bacigal
Law Faculty Publications
Perhaps there is something about the final stages of their careers that causes people to resolve conflicts by reconciling the seemingly irreconcilable. Albert Einstein spent the last days of his career searching for a unified field theory that would eliminate the contradictory laws governing relativity and quantum mechanics. Stephen Hawking has taken up this quest which has been renamed a search for the Theory of Everything. On a “slightly” more modest level, I find the later stages of my career drawing me toward formulating a unified theory governing seizures of the person. The challenge is to blend three different tests …
Predictive Policing And Reasonable Suspicion, Andrew Ferguson
Predictive Policing And Reasonable Suspicion, Andrew Ferguson
Articles in Law Reviews & Other Academic Journals
Predictive policing is a new law enforcement strategy to reduce crime by predicting criminal activity before it happens. Using sophisticated computer algorithms to forecast future events from past crime patterns, predictive policing has become the centerpiece of a new smart-policing strategy in several major cities. The initial results have been strikingly successful in reducing crime.This article addresses the Fourth Amendment consequences of this police innovation, analyzing the effect of predictive policing on the concept of reasonable suspicion. This article examines predictive policing in the context of the larger constitutional framework of “prediction” and the Fourth Amendment. Many aspects of current …
Making The Most Of United States V. Jones In A Surveillance Society: A Statutory Implementation Of Mosaic Theory, Christopher Slobogin
Making The Most Of United States V. Jones In A Surveillance Society: A Statutory Implementation Of Mosaic Theory, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In the Supreme Court's recent decision in United States v. Jones, a majority of the Justices appeared to recognize that under some circumstances aggregation of information about an individual through governmental surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion sometimes called "mosaic theory"-could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements-the issue raised in Jonesbut also with respect to the government's increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This article …
What Is The Essential Fourth Amendment?, Christopher Slobogin
What Is The Essential Fourth Amendment?, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In More Essential Than Ever: The Fourth Amendment in the Twenty-First Century, Stephen Schulhofer provides a strong, popularized brief for interpreting the Fourth Amendment as a command that judicial review precede all non-exigent police investigative actions that are more than minimally intrusive. This review points out a few places where Schulhofer may push the envelope too far or not far enough, but concludes that More Essential Than Ever is a welcome reminder for scholars and the public at large that the Fourth Amendment is a fundamental bulwark of constitutional jurisprudence and deserves more respect than the Supreme Court has given …
Why Crime Severity Analysis Is Not Reasonable, Christopher Slobogin, Jeffrey Bellin, Et Al.
Why Crime Severity Analysis Is Not Reasonable, Christopher Slobogin, Jeffrey Bellin, Et Al.
Vanderbilt Law School Faculty Publications
Jeffrey Bellin’s article, Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World, argues that the severity of the crime under investigation ought to be taken into account in assessing both the reasonableness of searches and whether a government action is a search in the first place. In pursuit of this objective, his article provides the best attempt to date at dealing with the difficult issue of separating serious from not-so serious crimes (he ends up with three categories—grave, serious and minor. He then makes the enticing argument that calibrating the degree of Fourth Amendment protection according …
Indecent Exposure: Do Warrantless Searches Of Cell Phones Violate The Fourth Amendment?, Amy Vorenberg
Indecent Exposure: Do Warrantless Searches Of Cell Phones Violate The Fourth Amendment?, Amy Vorenberg
Law Faculty Scholarship
This article argues that searches of student’s cell phone should require a warrant in most circumstances. The amount and personal nature of information on a smart phone warrants special Fourth Amendment protection. This issue is particularly relevant in the public school setting where administrators routinely confiscate phones from students caught using them in school. With more frequency, administrators are looking at the phones, scrolling through text messages and photos, and on some occasions, responding to text messages.
The U.S. Supreme Court in Safford v. Redding, acknowledges the special considerations that school children should be afforded in part because of the …
Reasonableness With Teeth: The Future Of Fourth Amendment Reasonableness Analysis, Cynthia Lee
Reasonableness With Teeth: The Future Of Fourth Amendment Reasonableness Analysis, Cynthia Lee
GW Law Faculty Publications & Other Works
This essay assesses the past, the present, and the future of Fourth Amendment reasonableness analysis. Part I focuses on the past. For much of the twentieth century, the Court embraced what is called the warrant preference view of the Fourth Amendment under which a search was considered reasonable if the government obtained a search warrant prior to the search or an exception to the warrant requirement applied. Part II focuses on the present. Even though it still treats as reasonable both searches conducted pursuant to a warrant and searches that fall within a well established exception to the warrant requirement, …
Is The Exclusionary Rule Dead?, Craig M. Bradley
Is The Exclusionary Rule Dead?, Craig M. Bradley
Articles by Maurer Faculty
In three recent decisions, Hudson v. Michigan, Herring v. United States, and last Term's Davis v. United States, the Supreme Court has indicated a desire to severely restrict the Fourth Amendment exclusionary rule. A majority of the Justices wants to limit its application to cases where the police have violated the Fourth Amendment purposely, knowingly, or recklessly, but not where they have engaged in "simple, isolated negligence" or where negligence is "attenuated" from the discovery of the evidence. They have further suggested that evidence should not be excluded where the police have behaved as reasonable policemen, using the approach from …
No More Chipping Away: The Roberts Court Uses An Axe To Take Out The Fourth Amendment Exclusionary Rule, Tracey Maclin, Jennifer Marie Rader
No More Chipping Away: The Roberts Court Uses An Axe To Take Out The Fourth Amendment Exclusionary Rule, Tracey Maclin, Jennifer Marie Rader
Faculty Scholarship
This article considers the current status of the Fourth Amendment exclusionary rule under the Roberts Court, as well as what the future holds for the rule. Despite Justice Kennedy’s 2006 declaration that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt,” this Article demonstrates why this is not the case. Kennedy’s statement is noteworthy and has been accorded substantial weight primarily because it was made at a time when it was thought that four Justices (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) were prepared to announce the demise of …
No More Chipping Away: The Roberts Court Uses An Axe To Take Out The Fourth Amendment Exclusionary Rule, Tracey Maclin, Jennifer Rader
No More Chipping Away: The Roberts Court Uses An Axe To Take Out The Fourth Amendment Exclusionary Rule, Tracey Maclin, Jennifer Rader
UF Law Faculty Publications
This article considers the current status of the Fourth Amendment exclusionary rule under the Roberts Court, as well as what the future holds for the rule. Despite Justice Kennedy’s 2006 declaration that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt,” this Article demonstrates why this is not the case. Kennedy’s statement is noteworthy and has been accorded substantial weight primarily because it was made at a time when it was thought that four Justices (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) were prepared to announce the demise of …
The Missed Opportunity Of United States V. Jones: Commercial Erosion Of Fourth Amendment Protection In A Post Google Earth World, Mary Graw Leary
The Missed Opportunity Of United States V. Jones: Commercial Erosion Of Fourth Amendment Protection In A Post Google Earth World, Mary Graw Leary
Scholarly Articles
The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages is a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it my merely announcing 24 hour surveillance. Similarly, the …