Law Commons^™

The Jones Trespass Doctrine And The Need For A Reasonable Solution To Unreasonable Protection, Geoffrey Corn

Arkansas Law Review

Each day that Houston drivers exit from Interstate 45 to drive to downtown Houston, they pass an odd sight. Nestled within some bushes is an encampment of tents. This encampment is very clearly located on public property adjacent to the interstate highway, and equally clearly populated by homeless individuals. While local police ostensibly tolerate this presence, at least temporarily, the sight frequently evokes an image in my mind of a police search of those tents. This thought is especially prominent on the days I am driving to my law school, South Texas College of Law Houston, to teach my federal …

Ring, Amazon Calling: The State Action Doctrine & The Fourth Amendment, Grace Egger

Washington Law Review Online

Video doorbells have proliferated across the United States and Amazon owns one of the most popular video doorbell companies on the market—Ring. While many view the Ring video doorbell as useful technology that protects the home and promotes safer neighborhoods, the product reduces consumer privacy without much recourse. For example, Ring partners with cities and law enforcement agencies across the United States thereby creating a mass surveillance network in which law enforcement agencies can watch neighborhoods and access Ring data without the user’s knowledge or consent. Because Amazon is not a state actor, it is able to circumvent the due …

Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr.

Seattle University Law Review

This essay posits that Justice Sotomayor is the Court’s chief defender of the Fourth Amendment and the cherished values it protects. She has consistently defended Fourth Amendment freedoms—in majority, concurring, and especially in dissenting opinions. Part I recounts a few of her majority opinions in Fourth Amendment cases. Part II examines her concurring opinion in United States v. Jones. Part III examines several of her dissenting opinions in Fourth Amendment cases. A review of these opinions demonstrates what should be clear to any observer of the Supreme Court: Justice Sotomayor consistently defends Fourth Amendment principles and values.

Preservation Requests And The Fourth Amendment, Armin Tadayon

Seattle University Law Review

Every day, Facebook, Twitter, Google, Amazon, ridesharing companies, and numerous other service providers copy users’ account information upon receiving a preservation request from the government. These requests are authorized under a relatively obscure subsection of the Stored Communications Act (SCA). The SCA is the federal statute that governs the disclosure of communications stored by third party service providers. Section 2703(f) of this statute authorizes the use of “f” or “preservation” letters, which enable the government to request that a service provider “take all necessary steps to preserve records and other evidence in its possession” while investigators seek valid legal process. …

The Fourth Amendment At Home, Thomas P. Crocker

Indiana Law Journal

A refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due …

Symposium: Pandemics And The Constitution: Pandemic Surveillance - The New Predictive Policing, Michael Gentithes, Harold J. Krent

ConLawNOW

As the fight against the coronavirus pandemic continues, state governments are considering more invasive surveillance to determine who has been exposed to the virus and who is most likely to catch the virus in the future. Widespread efforts to test temperatures have been initiated; calls for contact tracing have increased; and plans have been revealed to allow only those testing positive for the virus’s antibodies (who presumably now are immune) to return to work and travel. Such fundamental liberties may now hinge on the mere probabilities that one may catch the disease or be immune from it.

To assess the …

The Constitutionality Of Abortion, John M. Nerney

Senior Honors Theses

The purpose of this study is to determine whether abortion is constitutional under the Fourth Amendment. Essentially, the Supreme Court used what is known as the “right to privacy” which they created using the First, Fourth, Fifth and Ninth Amendments finding penumbras of the Bill of Rights, and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. This study addresses the history of the right to privacy and tries to show that the Supreme Court stretched the meaning of these Amendments beyond what the founders of the Constitution intended. This study analyzed the application of …

Peffer V. Stephens: Probable Cause, Searches And Seizures Within The Home, And Why Using Technology Should Not Open Your Front Door, Shane Landers

Texas A&M Law Review

The Fourth Amendment provides for the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Search warrants may only be issued upon a finding of probable cause. This core tenet of our constitutional republic becomes progressively flexible with every development in Fourth Amendment interpretation. In Peffer v. Stephens, the United States Court of Appeals for the Sixth Circuit delivered the latest blow to constitutional rights that restrict the State from engaging in unprincipled searches. In an issue of first impression, the Sixth Circuit held that a criminal defendant’s alleged use …

Symposium: Pandemics And The Constitution: Why The Special Needs Doctrine Is The Most Appropriate Fourth Amendment Theory For Justifying Police Stops To Enforce Covid-19 Stay-At-Home Orders, Henry F. Fradella

ConLawNOW

Despite the fact that the steps the federal and state governments take to curtail the spread of the viral infection are presumably taken in the best interest of public health, governmental actions and actors must comply with the U.S. Constitution even during a pandemic. Some public health measures, such as stay-at-home orders, restrict the exercise of personal freedoms ranging from the rights to travel and freely associate to the ability to gather in places of worship for religious services. This Essay explores several completing doctrines that might justify the authority of law enforcement to stop people who are out of …

Hash It Out: Fourth Amendment Protection Of Electronically Stored Child Exploitation, Rebekah A. Branham

Akron Law Review

Few courts have addressed whether ISP’s use of hash-based evaluation violates an individual’s Fourth Amendment rights. In 2018, the Fifth Circuit was presented with this issue in United States v. Reddick. The defendant is Reddick uploaded files to the cloud-sharing server Microsoft SkyDrive. Thereafter PhotoDNA, a computer software program that uses hashing, automatically reviewed the hash values of those files and compared them against its database of known child pornography hash values. PhotoDNA detected a hash value match between the defendant’s photos and the database. It then created a “CyberTip,” sending the files and users information to the NCMEC. …

Dna Is Different: An Exploration Of The Current Inadequacies Of Genetic Privacy Protection In Recreational Dna Databases, Jamie M. Zeevi

St. John's Law Review

(Excerpt)

Part I of this Note discusses the fundamental science behind DNA and defines and explains the process of familial DNA searching. Part I also discusses how Carpenter v. United States provides a framework to begin thinking about the unique nature of DNA and privacy implications for its use, and why the revealing nature of this type of data warrants protection. Part II of this Note delves into the lack of constitutional and statutory protections for DNA in recreational DNA databases. First, Part II explains that traditional Fourth Amendment concepts, like search warrants, probable cause, reasonable expectation of privacy, third-party …

Kansas V. Glover And The Issue Of Reasonable Suspicion, Zach Kumar

Duke Journal of Constitutional Law & Public Policy Sidebar

It is settled law that an officer may initiate a traffic stop when there is articulable and reasonable suspicion that the person stopped has committed, is committing, or is about to commit a crime. In Kansas v. Glover, the Supreme Court has an opportunity to clarify what constitutes “reasonable suspicion.” The Court will determine whether it is reasonable for an officer to seize a vehicle if the registered owner has a revoked license and there is no information to suggest that the person driving is not the owner of the car. This Commentary argues that the Court should uphold …

Unlimited Data Search Plan: Warrantless Border Search Of Mobile Device Data Likely Unconstitutional For Violating The Fundamental Right To Informational Privacy, Atanu Das

St. John's Law Review

(Excerpt)

Part I of this Article discusses a case in which a United States citizen was subject to an unconstitutional warrantless border search of his mobile device data. Part II explains the history and current state of Supreme Court jurisprudence of the border search exception doctrine. Part III explains the way in which Supreme Court jurisprudence finds the right to informational privacy for mobile device data to be a fundamental right. Part IV discusses the reluctance of some legal commentators to find that a governmental intrusion on the right to informational privacy is subject to strict scrutiny. Part V finds …

A New Era: Digital Curtilage And Alexa-Enabled Smart Home Devices, Johanna Sanchez

Touro Law Review

No abstract provided.

The Purpose Paradox: A Linguistic Dilemma Within Fourth Amendment Jurisprudence, Luke Belflower

Mitchell Hamline Law Review

No abstract provided.

United States V. Touset, Katelyn James

NYLS Law Review

No abstract provided.

Protecting Online Privacy In The Digital Age: Carpenter V. United States And The Fourth Amendment’S Third-Party Doctrine, Cristina Del Rosso, Carol M. Bast

Catholic University Journal of Law and Technology

The goal of this paper is to examine the future of the third-party doctrine with the proliferation of technology and the online data we are surrounded with daily, specifically after the Supreme Court’s decision in Carpenter v. United States. It is imperative that individuals do not forfeit their Constitutional guarantees for the benefit of living in a technologically advanced society. This requires an understanding of the modern-day functional equivalents of “papers” and “effects.”

Looking to the future, this paper contemplates solutions on how to move forward in this technology era by scrutinizing the relevancy of the third-party doctrine due …

The Fourth Amendment Inventory As A Check On Digital Searches, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Police and federal agents generally must obtain a warrant to search the tens of thousands of devices they seize each year. But once they have a warrant, courts afford these officers broad leeway to search the entire device, every file and folder, all metadata and deleted data, even if in search of only one incriminating file. Courts avow great reverence for the privacy of personal information under the Fourth Amendment but then claim there is no way to limit where an officer might find the target files, or know where the suspect may have hidden them.

These courts have a …

Recalibrating Suspicion In An Era Of Hazy Legality, Deborah Ahrens

Seattle University Law Review

After a century of employing varying levels of prohibition enforced by criminal law, the United States has entered an era where individual states are rethinking marijuana policy, and the majority of states have in some way decided to make cannabis legally available. This symposium Article will offer a description of what has happened in the past few years, as well as ideas for how jurisdictions can use the changing legal status of cannabis to reshape criminal procedure more broadly. This Article will recommend that law enforcement no longer be permitted use the smell of marijuana as a reason to search …