Law Commons^™

Privacy Implications Of Smart Meters, Cheryl Dancey Balough

Chicago-Kent Law Review

Many people worry about the erosion of privacy in our society given developments in technology, but that loss of privacy may take a quantum leap as electric "smart meters" make it possible for strangers to know on a real-time basis what is occurring in our houses and apartments. Perhaps the greatest concern is that current laws and regulations do not fully protect us from this unprecedented threat to two of our most basic rights—to be left alone in our own homes and to control personal information. Utility companies across the country are replacing conventional electric meters with smart meters designed …

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi

Hariqbal Basi

Abstract- For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order …

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

San Diego International Law Journal

The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.

"One Free Swerve”?: Requiring Police To Corroborate Anonymous Tips In Order To Establish Reasonable Suspicion For Warrantless Seizure Of Alleged Drunk Drivers, Michael B. Kunz

Michael B Kunz

While the Supreme Court holds that warrantless searches and seizures are presumptively unreasonable, it has carved out exceptions to the warrant requirement that provide law enforcement officials flexibility with which to conduct their day-to-day investigations. However, in Florida v. J.L. the Court recognized a limit to one such exception by holding that reasonable suspicion cannot be based exclusively on a bare-boned anonymous tip. Nevertheless, the Court complicated this rule by hypothesizing that police might be able to act on a lesser showing of reliability when an anonymous tip alleges a sufficiently great danger. Relying on this abstract idea, a number …

Car Stops, Borders, And Profiling: The Hunt For Undocumented (Illegal?) Immigrants In Border Towns, Brian Gallini, Elizabeth Young

School of Law Faculty Publications and Presentations

The much-discussed Arizona immigration statute, SB 1070, continues an effort—this time at the legislative level—to broaden the discretionary power of law enforcement. Yet, a fascinating question lies at the base of the public’s pervasive criticism of the Act: where have all the critics been? Numerous Supreme Court cases already allow for law enforcement to engage in the very practice—racial and ethnic profiling premised on “reasonable suspicion”—that has incited the emotions of so many citizens nationwide.This Article therefore argues that the Arizona’s SB 1070, while notable for the public response to it, is merely emblematic of a much larger and systemic …

Car Stops, Borders, And Profiling: The Hunt For Undocumented (Illegal?) Immigrants In Border Towns, Brian Gallini, Elizabeth Young

Brian Gallini

Can The American People, Through Their Legislature, Determine What Remedy Should Be Available For Fourth Amendment Violations?, Kevin R. Pettrey

Kevin R Pettrey

The United States Supreme Court, in Hudson and Herring, has opened the door to possible alternative Fourth Amendment remedies. Due to these recent cases, Congress and the states may have room to maneuver legislatively to create a remedy of another kind. This article proposes a statute to serve as an alternative remedy and supports the statute's constitutionality through a careful analysis of Supreme Court jurisprudence on the Fourth Amendment and related topics.

Expanding The Scope Of The Good-Faith Exception To The Exclusionary Rule To Include A Law Enforcement Officer's Reasonable Reliance On Well-Settled Case Law That Is Subsequently Overruled, Ross Oklewicz

Articles in Law Reviews & Journals

In 2009, the Supreme Court handed down several important decisions on criminal procedure. Perhaps unanticipated at the time, two of those decisions have been read together by lower courts to reach dramatically different results. The emerging split has been sharp, bringing with it urgent calls for the Court to intervene.

Laying the foundation for the conflicting decisions was New York v. Belton, in which the Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” …

Stepping Out Of The Vehicle: The Potential Of Arizona V. Gant To End Automatic Searches Incident To Arrest Beyond The Vehicular Context, Angad Singh

Articles in Law Reviews & Journals

“Because the law says we can do it” was the response Officer Griffith offered when asked why officers searched Rodney Gant’s car when he was arrested for driving with a suspended license. Officer Griffith’s honest answer exemplifies the effect of prior Supreme Court decisions on search incident to arrest power in the vehicle context: that a vehicle search incident to arrest is a police entitlement divorced from any rationale whatsoever. Concerns for officer safety and preservation of evidence -- legal justifications that generally permit warrantless searches incident to arrest generally -- had been utterly abandoned by the Court in the …

Vehicle Search Incident To A Lawful Arrest: The New Two-Part Rule From Arizona V. Gant Misses The Mark, Alexander J. Geocaris

Northern Illinois University Law Review

This Note examines the recent Supreme Court decision of Arizona v. Gant and how it affects a vehicle search incident to a lawful arrest exception to the Fourth Amendment's warrant requirement. The rationales for a search incident to a lawful arrest were established by Chimel v. California to search the reachable area of an arrestee for an officer's safety and to prevent the destruction of evidence. In New York v. Belton, the Supreme Court established a bright-line rule that officers may search the passenger compartment of a vehicle as incident to a lawful arrest since the Court found that Chimel …

The Inviolate Home: Housing Exceptionalism In The Fourth Amendment, Stephanie M. Stern

All Faculty Scholarship

The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions. The focus on protection of the physical home has decreased doctrinal efficiency and coherence and derailed Fourth Amendment residential privacy from the core principle of intimate association. This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces …

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renee Mcdonald Hutchins

Journal Articles

For more than two months beginning in late December of 2005, police officers in New York State continuously monitored the location and movements of Scott Weaver's van using a surreptitiously attached global positioning system ("GPS") device, known as a "Qball."' The reason Weaver was targeted for police surveillance has never been disclosed. 2 In addition, law enforcement made no attempt to justify the heightened scrutiny of Weaver by seeking the pre-authorization of a warrant from a neutral magistrate.3 Rather, for sixty-five days, the police subjected Weaver to intense surveillance without oversight, interruption, or explanation. 4 More than a year after …

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins

University of Richmond Law Review

In this essay, I contend that when evaluating the constitutionality of enhanced surveillance devices, the existing test for assessing the occurrence of a Fourth Amendment search should be modified. Specifically, I suggest that intrusiveness should be unambiguously adopted by the Court as the benchmark for assessing and defining the existence of a search under the Fourth Amendment. Moreover, intrusiveness should be clearly defined to require an examination of two factors: the functionality of a challenged form of surveillance and the potential for disclosure created by the device.

Leashing The Internet Watchdog: Legislative Restraints On Electronic Surveillance In The U.S. And U.K., John P. Heekin

John P. Heekin

This article examines the legislative approaches undertaken by the United States and the United Kingdom to regulate the surveillance and interception of electronic communications. Drawing from the recognition of individual privacy in each country, the author explores the development and impact of statutory provisions enacted to accomplish effective oversight of the respective intelligence services. In the U.S., the shifting purposes and provisions of the Foreign Intelligence Surveillance Act of 1978 are tracked from implementation to its revisions following the terrorist attacks of September 11, 2001. Along that timeline, a distinct trend toward greater deference to Executive authority for electronic surveillance …

Neuroscience's New Techniques For Evaluating Future Dangerousness: Are We Returning To Lombroso's Biological Criminality, J. W. Looney

University of Arkansas at Little Rock Law Review

No abstract provided.

A Fourth Amendment For The Poor Alone: Subconstitutional Status And The Myth Of The Inviolate Home, Jordan C. Budd

Indiana Law Journal

For much of our nation's history, the poor have faced pervasive discrimination in the exercise of fundamental rights. Nowhere has the impairment been more severe than in the area of privacy. This Article considers the enduring legacy of this tradition with respect to the Fourth Amendment right to domestic privacy. Far from a matter of receding historical interest, the diminution of the poor's right to privacy has accelerated in recent years and now represents a powerful theme within the jurisprudence of poverty. Triggering this development has been a series of challenges to aggressive administrative practices adopted by localities in the …

I Swear: The History And Implications Of The Fourth Amendment’S “Oath Or Affirmation” Requirement, David S. Muraskin

David S Muraskin

This article seeks to reinvigorate the Fourth Amendment’s “Oath or affirmation” requirement. Fourth Amendment scholarship and jurisprudence typically dismiss the requirement as a mere procedural formality. However, reviewing pre-Revolution law and commentaries, early legal developments in the States, and the American justice manuals—treatises published by legal scholars to inform and influence judges and practitioners within the new nation—this article argues that the oath requirement is key to understanding and effectuating the Amendment’s purpose. The article demonstrates that the Amendment was partly motivated by a fear of how the Crown used its search and seizure power, as a primary investigatory tool …

Gant And The Good-Faith Exception, Karly A. Kauf

American University Criminal Law Brief

No abstract provided.

Foreign Surveillance And Incidental U.S. Communications: Concerns Of Amnesty V. Mcconnell, Tarik N. Jallad

Tarik N. Jallad

Even with the most recent amendments to the Foreign Intelligence Surveillance Act, questions still remain regarding the constitutional protections implicated during foreign and U.S. communications. In particular, Amnesty v. McConnell concerns the incidental U.S. communications that could be acquired during warrantless surveillance of a non-U.S. person overseas. While explicit Fourth Amendment protections are in place for U.S. citizens and permanent residents, the same is not true for the non-U.S. person located outside the nation’s borders. In conjunction with the 2008 Amendments Act, FISA attempts to adhere to the murky constitutional requirements demanded in this situation. However, some critics are not …

Veteran Police Officers And Three-Dollar Steaks: The Subjective/Objective Dimensions Of Probable Cause And Reasonable Suspicion, Kit Kinports

Journal Articles

This Article addresses two issues surrounding probable cause and reasonable suspicion that test the line between subjective and objective standards in Fourth Amendment jurisprudence: the extent to which a particular police officer’s training and experience ought to be considered in measuring probable cause and reasonable suspicion, and the relevance of the officer’s subjective beliefs about the presence of a weapon in assessing the reasonable suspicion required to justify a frisk. Although both questions have split the lower courts and remain unresolved by the Supreme Court, the majority of courts treat them inconsistently, recognizing the importance of an officer’s training, experience, …

Herring V. United States: Mapp's "Artless" Overruling?, Michael Vitiello

Nevada Law Journal

The central thesis of this essay is that, consistent with the “art of overruling,” the Court could have limited Mapp, for example, by extending the good-faith reasonable mistake rationale that animates cases like United States v. Leon. As developed below, the facts of Herring are quite similar to the facts of other cases where the Court upheld police conduct that, although erroneous, seemed reasonable; accordingly, excluding the illegally obtained evidence had no value as a deterrent of future conduct in light of the reasonableness of the police officer's mistake. However, Herring goes much further and points towards a much greater …

The Political Fourth Amendment, Thomas P. Crocker

Faculty Publications

The Political Fourth Amendment builds on Justice Ginsburg's recent dissent in Herring v. United States to argue for a "more majestic conception" of the Fourth Amendment focused on protecting political liberty. To put the point dramatically, we misread the Fourth Amendment when we read it exclusively as a criminal procedure provision focused entirely on either regulating police or protecting privacy. In order to see the Fourth Amendment as contributing to the Constitution's protections for political liberty, and not simply as an invitation to regulate police practice, we must take seriously the fact that the Fourth Amendment's textual purpose is to …

Erie And Federal Criminal Courts, Wayne A. Logan

Scholarly Publications

Today, low-level state and local criminal laws figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms). While police resort to such laws as pretexts to stop and arrest individuals has been frequently addressed, this article provides the first analysis of how federal courts actually interpret and apply the laws. In doing so, the article reveals a surprising reality, long dismissed as a doctrinal impossibility: federal judicial use of the analytic framework of Erie v. Tompkins to resolve criminal cases.

As the article …

The Death Of Suspicion, Fabio Arcila Jr.

Scholarly Works

This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in …

Discipline In Schools After Safford Unified School District #1 V. Redding, Dennis D. Parker

NYLS Law Review

No abstract provided.

Government Dragnets, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article examines group-focused police investigation techniques - for instance, roadblocks, drug testing programs, area or industry-wide health and safety inspections, data mining, and camera surveillance - a phenomenon referred to as "government dragnets" because these general searches and seizures attempt to cull out bad actors through ensnaring a much larger number of individuals who are innocent of any wrongdoing. The courts have imposed few limitations on dragnets. Recent commentary has either advocated an even more laissez-faire attitude toward these group search and seizures or, at the other end of the spectrum, proposed schemes that would make most of them …

Reconceiving The Fourth Amendment And The Exclusionary Rule, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Who Is Secure?: A Framework For Arizona V. Gant, David S. Chase

Fordham Law Review

In April 2009, the U.S. Supreme Court in Arizona v. Gant narrowed the scope of an automobile search incident to arrest. Prior to Gant, officers were permitted to search the entire automobile passenger compartment incident to the arrest of a vehicle occupant for any offense. The Gant Court rejected this broad interpretation and limited officers’ ability to search to two circumstances: (1) when an arrestee is unsecured and within reaching distance of the vehicle or (2) when it is reasonable for officers to believe the vehicle might contain evidence related to the crime of the arrest. The Gant decision raises …

Substitution Effects: A Problematic Justification For The Third-Party Doctrine Of The Fourth Amendment, Blake Ellis Reid

Publications

In the past half-century, the Supreme Court has crafted a vein of jurisprudence virtually eliminating Fourth Amendment protection in information turned over to third parties - regardless of any subjective expectation of privacy or confidentiality in the information on the part of the revealer. This so-called “third-party” doctrine of the Fourth Amendment has become increasingly controversial in light of the growing societal reliance on the Internet in the United States, where nearly every transaction requires a user to turn information over to at least one third party: the Internet service provider (“ISP”).

Citing the scholarship that has criticized the third-party …

Mapp V. Ohio's Unsung Hero: The Suppression Hearing As Morality Play, Scott E. Sundby

Articles

No abstract provided.