Law Commons^™

The Fourth Amendment's Constitutional Home, Gerald S. Dickinson

Articles

The home enjoys omnipresent status in American constitutional law. The Bill of Rights, peculiarly, has served as the central refuge for special protections to the home. This constitutional sanctuary has elicited an intriguing textual and doctrinal puzzle. A distinct thread has emerged that runs through the first five amendments delineating the home as a zone where rights emanating from speech, smut, gods, guns, soldiers, searches, sex, and self-incrimination enjoy special protections. However, the thread inexplicably unravels upon arriving at takings. There, the constitutional text omits and the Supreme Court’s doctrine excludes a special zone of safeguards to the home. This …

Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David A. Harris, David Rudovsky

Articles

The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of …

Whren's Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr.

Articles

This article is adapted from remarks presented at CWRU Law School's symposium marking the 20th anniversary of Whren v. United States. The article critiques Whren’s constitutional methodology and evident willful blindness to issues of social psychology, unconscious bias, and the lengthy American history of racialized conceptions of crime and criminalized conceptions of race. The article concludes by suggesting a possible path forward: reconceptualizing racially motivated pretextual police encounters as a badge or incident of slavery under the Thirteenth Amendment issue rather than as abstract Fourth or Fourteenth Amendment issues.

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 …

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 …

A Thirteenth Amendment Framework For Combating Racial Profiling, William M. Carter Jr.

Articles

Law enforcement officers’ use of race to single persons out for criminal suspicion (“racial profiling”) is the subject of much scrutiny and debate. This Article provides a new understanding of racial profiling. While scholars have correctly concluded that racial profiling should be considered a violation of the Fourth Amendment, the Fourteenth Amendment’s Equal Protection Clause, and existing federal statutes, this Article contends that the use of race as a proxy for criminality is also a badge and incident of slavery in violation of the Thirteenth Amendment.

Racial profiling is not only a denial of the right to equal treatment, but …

Car Wars: The Fourth Amendment's Death On The Highway, David A. Harris

Articles

In just the past few terms, the Supreme Court has issued several decisions that have increased police discretion to stop and question drivers and passengers and search both these persons and their vehicles. These cases are only the latest in a line that has slowly but surely made it ever easier for police to do these things without being concerned with procedural or constitutional obstacles.

This article traces the history of those cases, and argues that, however much protection the Fourth Amendment might accord to an ordinary citizen in his or her home or even walking down the street, it …

Has The Pennsylvania Superior Court Misread Terry & Adams?, Robert Berkley Harper

Scholarship

Recent decisions by the Pennsylvania Superior Court relating to fourth amendment search and seizure issues are criticized in this article as being contrary to authoritative decisions of the United States Supreme Court. The author traces the development in the superior court of an intermediate response doctrine, whereby the authority of police officers to stop and frisk suspects on grounds amounting to less than probable cause is greatly enhanced. It is suggested that such authority is at odds with the United States Constitution and thereby poses a threat to the freedom of all citizens of the Commonwealth of Pennsylvania.

Political Surveillance And The Fourth Amendment, Alan Meisel

Articles

The United States District Court case has left the scope of the warrant protection of the fourth amendment considerably clearer and broader. The door left ajar in Katz has been firmly fastened shut by the Court leaving only the traditional exceptions to the warrant requirement, which are based upon practical necessity, and the still unconfronted question of the power of the executive to conduct warrantless surveillances of foreign agents in national security cases." It is also clear that courts are no less competent to evaluate the appropriateness of a search and seizure in an internal security case than in a …