Law Commons^™

Civil Arrest? (Another) St. Louis Case Study In Unconstitutionality, Mae Quinn, Eirik Cheverud

Journal Articles

This Article advances a simple claim in need of enforcement in this country right now: no person may be arrested for an alleged violation of civil, as opposed to criminal, law. Indeed, courts have long interpreted the Fourth Amendment as prohibiting arrest except when probable cause exists to believe that a crime has been committed and that the defendant is the person who committed the crime. However, in many places police take citizens into custody without a warrant for the non-criminal conduct of allegedly breaking civil laws. This unfortunate phenomenon received national attention in St. Louis, Missouri following the death …

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Articles

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. The original constitutional taint disappears in the wash.

Courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. …

Whither Reasonable Suspicion: The Supreme Court's Functional Abandonment Of The Reasonableness Requirement For Fourth Amendment Seizures, Steven P. Grossman

All Faculty Scholarship

Although the United States Supreme Court’s approach to issues governing application of the probable cause requirement of the Fourth Amendment has mutated over the years, at least one aspect of its approach has remained constant. Before information leading to probable cause or its lesser iteration of reasonable suspicion is found to exist, the government must demonstrate in some meaningful way the reliability of the person providing the information or of the information itself. Lacking such reliability, no search or seizure based on probable cause or reasonable suspicion is permitted. In its recent decision in Navarette v. California, the Court largely …

Riley V. California And The Beginning Of The End For The Third-Party Search Doctrine, David A. Harris

Articles

In Riley v. California, the Supreme Court decided that when police officers seize a smart phone, they may not search through its contents -- the data found by looking into the call records, calendars, pictures and so forth in the phone -- without a warrant. In the course of the decision, the Court said that the rule applied not just to data that was physically stored on the device, but also to data stored "in the cloud" -- in remote sites -- but accessed through the device. This piece of the decision may, at last, allow a re-examination 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.

Police Reform And The Judicial Mandate, Julian A. Cook

Scholarly Works

In response to a crisis that threatens his tenure as Mayor of Chicago, Rahm Emanuel announced in December 2015 reform measures designed to curb aggressive police tactics by the Chicago Police Department (CPD). The reform measures are limited, but aim to reduce deadly police-citizen encounters by arming the police with more tasers, and by requiring that officers undergo deescalation training. Though allegations of excessive force have plagued the department for years, the death of Laquan McDonald, an African-American teenager who was fatally shot by Jason Van Dyke, a white officer with the CPD, was the impetus for the Mayor’s reforms. …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook

Scholarly Works

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Cutting Cops Too Much Slack, Wayne A. Logan

Scholarly Publications

Police officers can make mistakes, which, for better or worse, the U.S. Supreme Court has often seen fit to forgive. Police, for instance, can make mistakes of fact when assessing whether circumstances justify the seizure of an individual or search of a residence; they can even be mistaken about the identity of those they arrest. This essay examines yet another, arguably more significant context where police mistakes are forgiven: when they seize a person based on their misunderstanding of what a law prohibits.

Government Retention And Use Of Unlawfully Secured Dna Evidence, Wayne A. Logan

Scholarly Publications

No abstract provided.

Big Data And Predictive Reasonable Suspicion, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics …

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

All Faculty Scholarship

With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the …

Why So Contrived? Fourth Amendment Balancing, Per Se Rules, And Dna Databases After Maryland V. King, David H. Kaye

Journal Articles

In Maryland v. King, 133 S. Ct. 1958 (2013), the Supreme Court narrowly upheld the constitutionality of routine collection and storage of DNA samples and profiles from arrestees. In doing so, it stepped outside the usual framework that treats warrantless searches as per se unconstitutional unless they fall within specified exceptions to the warrant and probable cause requirements. Instead, the Court balanced various individual and state interests. Yet, as regards the state interests, the Court confined this direct balancing analysis to the perceived value of using DNA to inform certain pretrial decisions. Oddly, it avoided relying directly on DNA’s …

Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports

Journal Articles

This piece argues that the Supreme Court's April 2014 decision in Navarette v. Calfornia, like last Term's opinion in Florida v. Harris, deviates from longstanding Supreme Court precedent treating probable cause and reasonable suspicion as totality-of-the-circumstances tests. Instead, these two recent rulings essentially rely on rigid rules to define probable cause and reasonable suspicion. The article criticizes the Court for selectively endorsing bright-line tests that favor the prosecution, and argues that both decisions generate rules that oversimplify and therefore tend to be overinclusive.

After The Cheering Stopped: Decriminalization And Legalism's Limits, Wayne A. Logan

Scholarly Publications

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon. Despite enjoying broad political support, the decriminalization movement has however failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for …

Nuance, Technology, And The Fourth Amendment: A Response To Predictive Policing And Reasonable Suspicion, Fabio Arcila Jr.

Scholarly Works

In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.

Juries And The Criminal Constitution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal …

School Surveillance And The Fourth Amendment, Jason P. Nance

UF Law Faculty Publications

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

The Dog Days Of Fourth Amendment Jurisprudence, Kit Kinports

NULR Online

No abstract provided.

Florence V. Board Of Chosen Freeholders: Maintaining Jail Security While Stripping Detainees Of Their Constitutional Rights, Nina Gleiberman

Maryland Law Review Online

No abstract provided.

On The 'Considered Analysis' Of Collecting Dna Before Conviction, David H. Kaye

Journal Articles

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland's highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Chief Justice Roberts stayed the Maryland judgment, writing that "given the considered analysis of courts on the other side …

Maryland V. King: Per Se Unreasonableness, The Golden Rule, And The Future Of Dna Databases, David H. Kaye

Journal Articles

In Maryland v. King, the Supreme Court applied a balancing test to uphold a Maryland statute mandating preconviction collection and analysis of DNA from individuals charged with certain crimes. The DNA profiles are limited to an inherited set of DNA sequences that are not known to be functional and that are tokens of individual identity. This invited online essay examines two aspects of an article on the case by Professor Erin Murphy. I question the claim that the case is pivotal in a conceivable abandonment of the per se rule that warrantless, suspicionless searches are unconstitutional unless they fall …

The Dog Days Fourth Amendment Jurisprudence, Kit Kinports

Journal Articles

This Article discusses Florida v. Harris and Florida v. Jardines, the two Fourth Amendment drug dog opinions issued by the Supreme Court earlier this year. Together the cases hold that a narcotics detection dog effects a “search” when it intrudes on a constitutionally protected area in order to collect evidence, but that the dog’s positive alert is generally sufficient to support a finding of probable cause. The piece argues that both cases essentially generate a bright-line rule, thereby deviating from precedent that favored a more amorphous standard considering all the surrounding circumstances. Like many purportedly clear rules, the ones …

Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports

Journal Articles

This Article discusses the Supreme Court’s use of the concepts of culpability and deterrence in its Fourth Amendment jurisprudence, in particular, in the opinions applying the good-faith exception to the exclusionary rule. The contemporary Court sees deterrence as the exclusionary rule’s sole function, and the Article begins by taking the Court at its word, evaluating its exclusionary rule case law on its own terms. Drawing on three different theories of deterrence – economic rational choice theory, organizational theory, and the expressive account of punishment – the Article analyzes the mechanics by which the exclusionary rule deters unconstitutional searches and questions …

Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan

Scholarly Publications

This essay discusses the Supreme Court’s 2012 decision in Florence v. Board of Chosen Freeholders allowing strip searches of minor offense arrestees without any suspicion that they possess a weapon or contraband. After summarizing the Court’s holding, the essay explores how Florence builds upon prior caselaw affording police virtually unlimited discretionary authority to execute warrantless arrests, and the unlikelihood that institutional limits will be placed on the strip search authority of corrections officials.

The Exclusionary Rule: Is It On Its Way Out? Should It Be?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This symposium, comprising six articles in addition to this one, was triggered by a spate of Supreme Court opinions occurring over the last seven years, all of which raise the two questions in the title to this article (which is also the title of the symposium). Since 1974, when United States v. Calandra definitively established deterrence as the primary objective of the suppression remedy, the Court has nibbled away at the exclusionary rule from a number of different directions. But the Court's decisions in Hudson v. Michigan (2006), Herring v. United States (2009), and Davis v. United States (2011) reveal …

Across The Hudson: Taking The Stop And Frisk Debate Beyond New York City, David A. Harris

Articles

This article presents the results of a survey conducted by the author of 56 police departments across the country concerning the practice of data collection on stop and frisk practices of those police departments. These results are discussed against the backdrop of the debate on stop and frisk, examined in this article through a review of the legal basis for the practice and its use by police departments. The article then argues that greater data collection efforts in places other than New York City, where such efforts have been more robust than elsewhere, could broaden and deepen the debate on …

Fighting Cybercrime After United States V. Jones, David C. Gray, Danielle Keats Citron, Liz Clark Rinehart

Faculty Scholarship

In a landmark non-decision last term, five Justices of the United States Supreme Court would have held that citizens possess a Fourth Amendment right to expect that certain quantities of information about them will remain private, even if they have no such expectations with respect to any of the information or data constituting that whole. This quantitative approach to evaluating and protecting Fourth Amendment rights is certainly novel and raises serious conceptual, doctrinal, and practical challenges. In other works, we have met these challenges by engaging in a careful analysis of this “mosaic theory” and by proposing that courts focus …

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

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 …

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 …