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Fourth Amendment

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Full-Text Articles in Law

Computationally Assessing Suspicion, Wesley M. Oliver, Morgan A. Gray, Jaromir Savelka, Kevin D. Ashley May 2024

Computationally Assessing Suspicion, Wesley M. Oliver, Morgan A. Gray, Jaromir Savelka, Kevin D. Ashley

University of Cincinnati Law Review

Law enforcement officers performing drug interdiction on interstate highways have to decide nearly every day whether there is reasonable suspicion to detain motorists until a trained dog can sniff for the presence of drugs. The officers’ assessments are often wrong, however, and lead to unnecessary detentions of innocent persons and the suppression of drugs found on guilty ones. We propose a computational method of evaluating suspicion in these encounters and offer experimental results from early efforts demonstrating its feasibility. With the assistance of large language and predictive machine learning models, it appears that judges, advocates, and even police officers could …


Computationally Assessing Suspicion, Wesley M. Oliver May 2024

Computationally Assessing Suspicion, Wesley M. Oliver

Law Faculty Publications

Law enforcement officers performing drug interdiction on interstate highways have to decide nearly every day whether there is reasonable suspicion to detain motorists until a trained dog can sniff for the presence of drugs. The officers’ assessments are often wrong, however, and lead to unnecessary detentions of innocent persons and the suppression of drugs found on guilty ones. We propose a computational method of evaluating suspicion in these encounters and offer experimental results from early efforts demonstrating its feasibility. With the assistance of large language and predictive machine learning models, it appears that judges, advocates, and even police officers could …


The Mosaic Theory In Fourth Amendment Jurisprudence: The Last Bastion Of Privacy In A Camera-Surveilled World, Auggie Alvarado Apr 2024

The Mosaic Theory In Fourth Amendment Jurisprudence: The Last Bastion Of Privacy In A Camera-Surveilled World, Auggie Alvarado

St. Mary's Law Journal

No abstract provided.


The Post-Dobbs Reality: Privacy Expectations For Period-Tracking Apps In Criminal Abortion Prosecutions, Sophie L. Nelson Apr 2024

The Post-Dobbs Reality: Privacy Expectations For Period-Tracking Apps In Criminal Abortion Prosecutions, Sophie L. Nelson

Pepperdine Law Review

The Supreme Court’s decision to overturn Roe v. Wade and Planned Parenthood v. Casey in June 2022 was met with waves of both support and criticism throughout the United States. Several states immediately implemented or began drafting trigger laws that criminalize seeking and providing an abortion. These laws prompted several period-tracking app companies to encrypt their users’ data to make it more difficult for the government to access period- and pregnancy-related information for criminal investigations. This Comment explores whether the Fourth Amendment and U.S. privacy statutes protect users of period-tracking apps from government surveillance. More specifically, this Comment argues that …


Pretrial Commitment And The Fourth Amendment, Laurent Sacharoff Apr 2024

Pretrial Commitment And The Fourth Amendment, Laurent Sacharoff

Notre Dame Law Review

Today, the Fourth Amendment Warrant Clause governs arrest warrants and search warrants only. But in the founding era, the Warrant Clause governed a third type of warrant: the “warrant of commitment.” Judges issued these warrants to jail defendants pending trial. This Article argues that the Fourth Amendment Warrant Clause, with its oath and probable cause standard, should be understood today to apply to this third type of warrant. That means the Warrant Clause would govern any initial appearance where a judge first commits a defendant—a process that currently falls far short of fulfilling its constitutional and historical function. History supports …


Arrests: Legal And Illegal, Daniel Yeager Mar 2024

Arrests: Legal And Illegal, Daniel Yeager

Georgia State University Law Review

The Fourth Amendment prohibits unreasonable searches and seizures. An arrest—manifesting a police intention to transport a suspect to the stationhouse for booking, fingerprinting, and photographing—is a mode of seizure. Because arrests are so intrusive, they require roughly a fifty percent chance that an arrestable offense has occurred. Because nonarrest seizures (aka Terry stops), though no “petty indignity,” are less intrusive than arrests, they require roughly just a twenty-five percent chance that crime is afoot.

Any arrest not supported by probable cause is illegal. It would therefore seem to follow that any arrest supported by probable cause is legal. But it …


The Automated Fourth Amendment, Maneka Sinha Jan 2024

The Automated Fourth Amendment, Maneka Sinha

Emory Law Journal

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible.

Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …


The Unconstitutional Conditions Vacuum In Criminal Procedure, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro Jan 2024

The Unconstitutional Conditions Vacuum In Criminal Procedure, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

For more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to—and often do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court’s jurisprudence demonstrates that the doctrine …


Community Caretaking Exception Saves Lives . . . The Supreme Court Disagrees, Gabriella Lorenzo Jan 2024

Community Caretaking Exception Saves Lives . . . The Supreme Court Disagrees, Gabriella Lorenzo

Touro Law Review

As many are aware, the Fourth Amendment protects the people against unreasonable searches and seizures. A warrant is necessary for said activities. While there are a few exceptions to the warrant requirement, the Supreme Court recently held that the community caretaking exception does not extend to the home. Extending this exception to the home would allow police officers to enter and engage in functions that are unrelated to the investigation of a crime. Essentially, this exception would allow police to aid individuals and prevent serious, dangerous situations to protect the community. This Note discusses why the Supreme Court erred in …


A Loophole In The Fourth Amendment: The Government's Unregulated Purchase Of Intimate Health Data, Rhea Bhatia Jan 2024

A Loophole In The Fourth Amendment: The Government's Unregulated Purchase Of Intimate Health Data, Rhea Bhatia

Washington Law Review Online

Companies use everyday applications and personal devices to collect deeply personal information about a user’s body and health. While this “intimate health data” includes seemingly innocuous information about fitness activities and basic vitals, it also includes extremely private information about the user’s health, such as chronic conditions and reproductive health. However, consumers have no established rights over the intimate health data shared on their devices. Believing that these technologies are created for their benefit, consumers hand over the most intimate aspects of their lives through health-related applications relying on the promise that their data will remain private. Today, the intimate …


The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrine, Steven M. Goldstein -- Professor Of Law Jan 2024

The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrine, Steven M. Goldstein -- Professor Of Law

Vanderbilt Law Review

In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment’s prohibition of “unreasonable” seizures does not bar legally mistaken seizures because “[t]o be reasonable is not to be perfect.” Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be “exceedingly rare.” In a solo dissent, Justice Sotomayor fairly “wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized …


The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrin, Wayne A. Logan -- Professor Jan 2024

The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrin, Wayne A. Logan -- Professor

Vanderbilt Law Review

In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment's prohibition of "unreasonable" seizures does not bar legally mistaken seizures because "[t]o be reasonable is not to be perfect." Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be "exceedingly rare." In a solo dissent, Justice Sotomayor fairly "wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized …


The Modern Border: The Government Can Search . . . Anything?, Abigail Nusbaum Jan 2024

The Modern Border: The Government Can Search . . . Anything?, Abigail Nusbaum

FIU Law Review

The evolution of modern technology has introduced new obstacles in interpreting the Fourth Amendment’s application to searches of peoples’ effects. Specifically, the longstanding exception to the Fourth Amendment permitting searches at the international border in the absence of probable cause does not so neatly apply to forensic searches of cell phones. Consequently, a circuit split has emerged on two aspects of the issue: the scope of the border exception and the requisite level of suspicion within that exception. The Supreme Court should find that forensic cell phone searches at the international border implicate Fourth Amendment privacy interests, requiring the border …


Privacy Nicks: How The Law Normalizes Surveillance, Woodrow Hartzog, Evan Selinger, Johanna Gunawan Jan 2024

Privacy Nicks: How The Law Normalizes Surveillance, Woodrow Hartzog, Evan Selinger, Johanna Gunawan

Faculty Scholarship

Privacy law is failing to protect individuals from being watched and exposed, despite stronger surveillance and data protection rules. The problem is that our rules look to social norms to set thresholds for privacy violations, but people can get used to being observed. In this article, we argue that by ignoring de minimis privacy encroachments, the law is complicit in normalizing surveillance. Privacy law helps acclimate people to being watched by ignoring smaller, more frequent, and more mundane privacy diminutions. We call these reductions “privacy nicks,” like the proverbial “thousand cuts” that lead to death.

Privacy nicks come from the …


Just Extracurriculars?, Emily Gold Waldman Dec 2023

Just Extracurriculars?, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Extracurricular activities have been the battleground for a striking number of Supreme Court cases set at public schools, from cases involving speech to religion to drug testing. Indeed, the two most recent Supreme Court cases involving constitutional rights at public schools--Kennedy v. Bremerton School District (2022) and Mahanoy Area School District v. B.L. (2021)--both arose in the extracurricular context of school sports. Even so, the Supreme Court has never fully clarified the status of extracurricular activities themselves. Once a school offers an extracurricular activity, is participation merely a privilege? Does the fact that extracurricular activities are voluntary for students affect …


Breaking The Fourth's Wall: The Implications Of Remote Education For Students' Fourth Amendment Rights, Sallie Hatfield Nov 2023

Breaking The Fourth's Wall: The Implications Of Remote Education For Students' Fourth Amendment Rights, Sallie Hatfield

Vanderbilt Journal of Entertainment & Technology Law

As the COVID-19 pandemic forced both public K-12 and higher education institutions to transition to exclusively provide remote education, students’ homes and personal lives were exposed to the government like never before. Zoom classes and remote proctoring were suddenly the norm. Students and their families scrambled to create appropriate offices and classroom spaces in their homes, and many awkward and invasive scenarios soon followed. While many may have been harmlessly captured on camera, like classes that witness a student’s family eating lunch in the background or a dog on the couch, even these harmless instances have insidious implications for the …


You Can’T Teach Old Katz New Tricks: It’S Time To Revitalize The Fourth Amendment, Jeremy Connell Oct 2023

You Can’T Teach Old Katz New Tricks: It’S Time To Revitalize The Fourth Amendment, Jeremy Connell

University of Miami Law Review

For over half a century, the Court’s decision in Katz v. United States has been the lodestar for applying the Fourth Amendment. The Katz test has produced a litany of confusing and irreconcilable decisions in which the Court has carved exceptions into the doctrine and then carved exceptions into the exceptions. These decisions often leave lower courts with minimal guidance on how to apply the framework to new sets of facts and leave legal scholars and commenters befuddled and frustrated with the Court’s explanations for the rulings. The Court’s decision in Carpenter v. United States represents the apex of Katz’s …


Private Police Regulation And The Exclusionary Remedy: How Washington Can Eliminate The Public/Private Distinction, Jared Rothenberg Oct 2023

Private Police Regulation And The Exclusionary Remedy: How Washington Can Eliminate The Public/Private Distinction, Jared Rothenberg

Washington Law Review

Private security forces such as campus police, security guards, loss prevention officers, and the like are not state actors covered by the Fourth Amendment’s prohibition against unreasonable searches and seizures nor the Fifth Amendment’s Miranda protections. As members of the umbrella category of “private police,” these private law enforcement agents often obtain evidence, detain individuals, and elicit confessions in a manner that government actors cannot, which can then be lawfully turned over to the government. Though the same statutory law governing private citizens (assault, false imprisonment, trespass, etc.) also regulates private police conduct, private police conduct is not bound by …


Wrong Search At The Wrong Time: Keyword Search Warrants And The Fourth Amendment, Nicole Chan Oct 2023

Wrong Search At The Wrong Time: Keyword Search Warrants And The Fourth Amendment, Nicole Chan

Articles

This Note will advocate for the view that when presented with the issue, state and federal courts should establish that keyword search warrants are unconstitutional because they violate the Fourth Amendment. Keyword search warrants cannot meet the Fourth Amendment’s requirements of probable cause and particularity because the subjects of the search cannot be identified until after the search is completed. These warrants are unnecessary and have the potential of implicating millions of internet users who have no connection to a crime. This Note will contend that individuals have a reasonable expectation of privacy in their search history data, and that …


Reasonable In Time, Unreasonable In Scope: Maximizing Fourth Amendment Protections Under Rodriguez V. United States, Thomas Heiden Oct 2023

Reasonable In Time, Unreasonable In Scope: Maximizing Fourth Amendment Protections Under Rodriguez V. United States, Thomas Heiden

Washington Law Review

In Rodriguez v. United States, the Supreme Court held that a law enforcement officer may not conduct a drug dog sniff after the completion of a routine traffic stop because doing so extends the stop without reasonable suspicion in violation of the Fourth Amendment’s prohibition on unreasonable seizures. Tracing the background of Rodriguez from the Supreme Court’s landmark decision in Terry v. Ohio, this Comment argues that Rodriguez is best understood as a reaction to the continued erosion of Fourth Amendment protections in the investigative stop context. Based on that understanding, this Comment argues for a strict reading of Rodriguez, …


Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin Jul 2023

Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit Court of Appeals held that Aerial Investigation Research (AIR), Baltimore's aerial surveillance program, violated the Fourth Amendment because it was not authorized by a warrant. AIR was constitutionaly problematic, but not for the reason given by the Fourth Circuit. AIR, like many other technologically-enhanced policing programs that rely on closed-circuit television (CCTV), automated license plate readers and the like, involves the collection and retention of information about huge numbers ofpeople. Because individualized suspicion does not exist with respect to any of these people's information, an individual-specific warrant …


The United States Should Take A Page Out Of Canadian Law When It Comes To Privacy, Genetic And Otherwise, Ashley Rahaim Jun 2023

The United States Should Take A Page Out Of Canadian Law When It Comes To Privacy, Genetic And Otherwise, Ashley Rahaim

University of Miami Inter-American Law Review

Genetic information is intimate and telling data warranting privacy in public and private realms. The privacy protections offered in the United States and Canada vastly differ when it comes to genetic privacy. Search and seizure law mirrors the privacy gap in the countries, as well as their treatment of DNA database information.

This note explores the foreshadowing of the creation of genetic privacy laws and their varying levels of protection based on the way private information was treated by state actors through search and seizure caselaw, the creation of legal precedent, and the treatment of intimate personal data in the …


Per Curiam Signals In The Supreme Court's Shadow Docket, Zina Makar Jun 2023

Per Curiam Signals In The Supreme Court's Shadow Docket, Zina Makar

Washington Law Review

Lower courts and litigants depend a great deal on the Supreme Court to articulate and communicate signals regarding how to interpret existing doctrine. Signals are at their strongest and most reliable when they originate from the Court’s merits docket. More recently, the Court has been increasingly relying on its orders docket—colloquially referred to as its “shadow docket”—to communicate with lower courts by summarily reversing and correcting errors in interpretation without briefing or oral argument.

Over the past decade the Roberts Court has granted certiorari to summarily reverse a growing number of qualified immunity cases, issuing over a dozen unsigned per …


Are Third Parties Creating A Loophole For Police Investigations?, Alexandria N. Short May 2023

Are Third Parties Creating A Loophole For Police Investigations?, Alexandria N. Short

Northern Illinois Law Review Supplement

This article discusses the current case law and statutory law related to the privacy of information collected by third parties. At times, we see the private sector and law enforcement working together to solve crimes. However, that may not always be a good thing. This article offers a solution to these problems of uncertainty by suggesting a uniform code to regulate the private sector, or, in the alternative, a change to the Fourth Amendment that encompasses a more modern interpretation of the information that law enforcement should have access to.


Was Atwater V. Lago Vista Decided Correctly? The Fourth Amendment's Shadow And Simulacra Of Police Brutality And The American Dream, Charles Lincoln May 2023

Was Atwater V. Lago Vista Decided Correctly? The Fourth Amendment's Shadow And Simulacra Of Police Brutality And The American Dream, Charles Lincoln

Barry Law Review

No abstract provided.


A New Test For The New Crime Exception, Colin Miller May 2023

A New Test For The New Crime Exception, Colin Miller

Utah Law Review

The new crime exception to the Fourth Amendment exclusionary rule allows prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Unfortunately, as illustrated in this Article, courts largely have applied this new crime exception without any analytical framework or regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest.

By doing so, courts have allowed the new crime exception to swallow two …


The Ambiguity Of Probable Cause And Its Contentious Application By Police, Dave Sainte-Luce May 2023

The Ambiguity Of Probable Cause And Its Contentious Application By Police, Dave Sainte-Luce

College Honors Program

It is well documented how our country’s Criminal Justice System has a history of targeting people of color. A lot of this contention is derived from police officers’ behavior when interacting with individuals, yet officers only act upon the laws and legal policies that grant them authority, including probable cause. My thesis addresses the question, how does the fluid and ambiguous nature of probable cause leave the door open for officers to disproportionately target people of color in the United States? While focusing on vehicle, person, and property searches, I first define probable cause, building an understanding of exactly what …


The Fourth Amendment In A Digital Age: Defining Boundaries In Law Enforcement Surveillance Of The Home, Josh Hoffman, Jared Xia Apr 2023

The Fourth Amendment In A Digital Age: Defining Boundaries In Law Enforcement Surveillance Of The Home, Josh Hoffman, Jared Xia

Brigham Young University Prelaw Review

As our country enters a new digital age, emerging technologies have increased the ability of law enforcement to monitor American citizens more closely. The tracking of suspects through thermal imaging, video monitoring, and cell phone GPSs are just a few examples of the unlocked potential now available to investigating authorities. When directed at the home, these technologies allow for unprecedented encroachment of our most intimate sphere of daily life. With this accelerating prevalence of technology in surveillance practices comes the need to reassess what boundaries the Fourth Amendment defines for our privacy. This paper explores the application of the Reasonable …


Privacy And Property: Constitutional Concerns Of Dna Dragnet Testing, E. Wyatt Jones Apr 2023

Privacy And Property: Constitutional Concerns Of Dna Dragnet Testing, E. Wyatt Jones

Honors Projects

DNA dragnets have attracted both public and scholarly criticisms that have yet to be resolved by the Courts. This review will introduce a modern understanding of DNA analysis, a complete introduction to past and present Fourth and Fourteenth Amendment jurisprudence, and existing suggestions concerning similar issues in legal scholarship. Considering these contexts, this review concludes that a focus on privacy and property at once, with a particular sensitivity to the inseverable relationship between the two interests, is Constitutionally consistent with precedent and the most workable means of answering the question at hand.


A Square Double Helix In A Round Hole: Forensic Genetic Genealogy Searches And The Fourth Amendment, Matthew Sweat Mar 2023

A Square Double Helix In A Round Hole: Forensic Genetic Genealogy Searches And The Fourth Amendment, Matthew Sweat

Georgia State University Law Review

A forensic genetic genealogy search (FGGS) involves law enforcement’s use of consumer DNA databases to generate leads to solve cold cases. As a result of more modern technological processes, the DNA profiles kept in consumer databases are far more revealing than the DNA profiles stored in the FBI’s Combined DNA Index System (CODIS). Accordingly, each DNA profile in a consumer database can be used to identify hundreds of relatives related to the DNA’s contributor.

The government’s use of consumer DNA databases to locate the perpetrators of horrific, unsolved crimes has generated fans and critics. Supporters of FGGSs argue that, in …