Law Commons^™

Searching For A Needle In A Haystack: The Constitutionality Of Police Dna Dragnets, Sepideh Esmaili

Chicago-Kent Law Review

DNA dragnets—the mass warrantless DNA testing of individuals whom authorities have neither probable cause nor reasonable suspicion to believe perpetrated a crime, but who merely live or work near a crime scene—have increasingly been used by police departments in a desperate attempt to solve puzzling crimes. The lack of success and the Fourth Amendment constitutional concerns raised by DNA dragnets, however, lead this practice to be suspect. Under the Fourth Amendment, all searches of an individual must be reasonable. The reasonableness of any search typically depends on the government obtaining a warrant prior to the search. While there are well-established …

Fourth Amendment Searches Of The Home In Florida: State V. Rabb: Has The Florida Fourth District Court Of Appeals Barked Up The Wrong Tree? , Anthony Michael Stella

ExpressO

The use of drug dogs in the United States began in 1970 when the United States Customs started using dog sniffs to detect the presence of contraband. This practice raised the Fourth Amendment issue of whether the use of a dog sniff required probable cause and a warrant. In United States v. Place, the United States Supreme Court found that a dog sniff is not a Fourth Amendment search because it is “less intrusive than a typical search” and because it reveals only “the presence or absence of narcotics.” Since that decision, some State courts have interpreted their constitutions to …

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Reviving The Nixon Doctrine: Nsa Spying, The Commander-In-Chief, And Executive Power In The War On Terror, David Cole

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Liberal Assault On The Fourth Amendment, Christopher Slobogin

ExpressO

The Liberal Assault on the Fourth Amendment Christopher Slobogin As construed by the Supreme Court, the Fourth Amendment’s reasonableness requirement regulates overt, non-regulatory government searches of homes, cars, and personal effects–-and virtually nothing else. This essay is primarily about how we got to this point. It is fashionable to place much of the blame for today’s law on the Warren Court’s adoption of the malleable expectation of privacy concept as the core value protected by the Fourth Amendment. But this diagnosis fails to explain why even the more liberal justices have often gone along with many of the privacy-diminishing holdings …

Searches And The Misunderstood History Of Suspicion And Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Reasonable Expectations Of Privacy And Novel Search Technologies: An Economic Approach, Steven Penney

ExpressO

The “reasonable expectation of privacy” test, which defines the scope of constitutional protection from governmental privacy intrusions in both the United States and Canada, is notoriously indeterminate. This indeterminacy stems in large measure from the tendency of judges to think of privacy in non-instrumentalist terms. This “moral” approach to privacy is normatively questionable, and it does a poor job of identifying the circumstances in which privacy should prevail over countervailing interests, such as the deterrence of crime.

In this paper, I develop an alternative, economically-informed approach to the reasonable expectation of privacy test. In contrast to the moral approach, which …

Reflections On Standing: Challenges To Searches And Seizures In A High Technology World, José F. Anderson

All Faculty Scholarship

Among the profound issues that surround constitutional criminal procedure is the obscure often overlooked issue of who has standing to challenge an illegal search, seizure or confession. Privacy interests are often overlooked because without a legal status that allows a person to complain in court, there is no way to challenge whether one is constitutionally protected from personal invasions. Standing is that procedural barrier often imposed to prevent a person in a case from objecting to improper police conduct because of his or her relationship of ownership, proximity, location, or interest in an item searched or a thing seized. Although …

The Constitutionality Of The Nsa Surveillance Program: A Letter To The House Judiciary Committee, John Eastman

John C. Eastman

Following the December 2005 disclosure by the New York Times of a highly-classified National Security Agency surveillance program that was authorized by President Bush shortly after the September 11, 2001 terrorist attacks on the United States, there has been a great national debate, both scholarly and popular, about the legality of the program. Opponents claim that it violates the FISA statute's requirement that executive branch officials first obtain a warrant before conducting surveillance on enemy communications that originate or terminate in the United States itself. They also claim that, even if FISA statute was implicitly amended by the post-9/11 Authorization …

Subway Searches: Which Exception To The Warrant And Probable Cause Requirements Applies To Suspicionless Searches Of Mass Transit Passengers To Prevent Terrorism?, Charles J. Keeley Iii

Fordham Law Review

No abstract provided.

Say Hello And Wave Goodbye: The Legitimacy Of Plain View Seizures At The Threshold Of The Home, Evan B. Citron

Fordham Law Review

No abstract provided.

Is Data Mining Ever A Search Under Justice Stevens's Fourth Amendment?, Joseph T. Thai

Fordham Law Review

No abstract provided.

Down To The Wire: Assessing The Constitutionality Of The National Security Agency's Warrantless Wiretapping Program: Exit The Rule Of Law, Fletcher N. Baldwin Jr., Robert B. Shaw

UF Law Faculty Publications

The article discusses the constitutionality of warrantless wiretapping surveillance by the National Security Agency (NSA) on U.S. citizens. The wiretapping program existed weeks after the September 11, 2001 attacks, on the justification that Congress authorized the president to wiretap U.S. citizens without a warrant, and that the president had inherent authority as commander-in-chief. But it is argued that Congress did not expressly authorize the president to conduct warrantless wiretapping and that he does not have such inherent authority.

We intend this Article to be a commentary on the constitutionality of the NSA wiretapping program solely as it relates to the …

The Fourth Amendment: Internal Revenue Code Or A Body Of Principles?, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

The Supreme Court has made the body of Fourth Amendment law too complicated, inconsistent, and confusing. Prior to Mapp v. Ohio, in 1961, the Court focused its attention on federal law enforcement and devoted less of its docket to criminal procedure cases. After Mapp, the Court was called upon to review state cases and forced to deal with the myriad of state law enforcement issues that inevitably arise. Since Mapp, the Court has made the meaning of the relatively few words that constitute the Fourth Amendment extremely complicated, so that the total body of Fourth Amendment law has begun to …

A Taxonomy Of Privacy, Daniel J. Solove

GW Law Faculty Publications & Other Works

Privacy is a concept in disarray. Nobody can articulate what it means. As one commentator has observed, privacy suffers from an embarrassment of meanings. Privacy is far too vague a concept to guide adjudication and lawmaking, as abstract incantations of the importance of privacy do not fare well when pitted against more concretely-stated countervailing interests.

In 1960, the famous torts scholar William Prosser attempted to make sense of the landscape of privacy law by identifying four different interests. But Prosser focused only on tort law, and the law of information privacy is significantly more vast and complex, extending to Fourth …

Mapp V. Ohio: The First Shot Fired In The Warren Court's Criminal Procedure 'Revolution', Yale Kamisar

Book Chapters

Although Earl Warren ascended to the Supreme Court in 1953, when we speak of the Warren Court's "revolution" in American criminal procedure we really mean the movement that got underway half-way through the Chief Justice's sixteen-year reign. It was the 1961 case of Mapp v. Ohio, overruling Wolf v. Colorado and holding that the state courts had to exclude illegally seized evidence as a matter of federal constitutional law, that is generally regarded as having launched the so-called criminal procedure revolution.