Law Commons^™

Countering Criminalization: Toward A Youth Development Approach To School Searches., Sarah Jane Forman

The Scholar: St. Mary's Law Review on Race and Social Justice

Public schools are supposed to be the foundation for American students’ civic education. Students do not only gain this education through the curriculum but also through extra-curricular political and legal socialization occurring in schools. Large metropolitan school districts face a myriad of serious challenges, including inadequate funding low literacy, high dropout rates, teen pregnancy, and legitimate school safety concerns. Instead of being educated in the manners of civility, students are treated as threats to public safety the minute they walk through the metal detector at the schoolhouse door. Citizen education devolves into ghetto education when schools adopt a prison-like culture. …

Students' Fourth Amendment Rights In Schools: Strip Searches, Drug Tests, And More, Emily Gold Waldman

Touro Law Review

No abstract provided.

Modern Police Practices: Arizona V. Gant's Illusory Restriction Of Vehicle Searches Incident To Arrest, Seth W. Stoughton

Faculty Publications

In 2009, the Supreme Court overturned thirty years of precedent with a decision that purported to dramatically cut back on the ability of law enforcement officers to conduct warrantless vehicle searches incident to the arrest of a vehicle occupant. Scholars and commentators celebrated Arizona v. Gant’s constraint of police, and subsequent scholarship has focused exclusively on peripheral concerns such as alternative justifications for warrantless searches and Gant’s effect on non-vehicle searches. This Note challenges the core assumption that Gant will substantially limit vehicle searches incident to arrest, contending that Gant is far more permissive than it appears. In most cases, …

Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe

Faculty Scholarship

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Border Searches In The Age Of Terrorism, Robert M. Bloom

Robert M. Bloom

This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns will likely have …

A Brave New World Of Stop And Frisk, Ronald J. Bacigal

Law Faculty Publications

In this article, the author Ron Bacigal discusses the editorials, The Shame of New York by Bob Herbert and Fighting Crime Where the Criminals Are by Heather MacDonald. These editorials were prompted by the New York City Police Department's release of figures regarding "stop and frisk" incidents within New York City.' MacDonald and Herbert reacted to the same statistical report by putting two very different spins on the raw data. While it's always helpful to compile empirical evidence, Bacigal suggests that we also need to look beyond the mere numbers. If you put aside anecdotal versions of encounters between minorities …

Driving Into Unreasonableness: The Driveway, The Curtilage, And Reasonable Expectations Of Privacy, Vanessa Rownaghi

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Arizona V. Gant: Decoding The Meaning Of Reasonable Belief, Geoffrey S. Corn

Geoffrey S. Corn

This article addresses the uncertainty created by the Supreme Court’s decision in Arizona v. Gant as to when police may search an automobile after the recent arrestee is secured and no longer able to access the vehicle. In Gant, the Court authorized such a search whenever the police have ‘reasonable belief’ evidence related to the crime of arrest may be in the automobile. However, the Court did not define the meaning of reasonable belief. This has led to various lower court interpretations, ranging from reasonable suspicion to probable cuase.

This article first explains why treating reasonable belief as synonymous with …

Schneckloth V. Bustamonte: History’S Unspoken Fourth Amendment Anomaly, Brian Gallini

School of Law Faculty Publications and Presentations

The officer walking the beat has numerous tools at her disposal to effectuate a warrantless search, the most popular of which is the consent search. Academics, courts, and the public appear skeptical of current consent search practices; so, how did we get here? Step back to 1969 when President Nixon appointed Warren Burger to replace Earl Warren as Chief Justice of the Supreme Court. At that time, many believed Burger’s “law and order” background foretold Miranda’s overruling. That never happened; a handful of commentators and historians therefore view the Burger Court’s criminal procedure decisions as anticlimactic. That view overlooks the …

Schneckloth V. Bustamonte: History’S Unspoken Fourth Amendment Anomaly, Brian Gallini

Brian Gallini

The Framers' Intent: John Adams, His Era, And The Fourth Amendment, Thomas K. Clancy

Indiana Law Journal

No abstract provided.

Supreme Court § 1983 Decisions-October 2008 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Death To Dying Declarations! The Case For Killing A Hearsay Exception, Samuel T. Bernier

Samuel T Bernier

No abstract provided.

Hey! You! Get Off Of My Cloud: Defining And Protecting The Metes And Bounds Of Privacy, Security, And Property In Cloud Computing, Timothy D. Martin

Timothy D Martin

Cloud computing is a growing force in today’s interconnected technological world. It allows people and organizations to purchase computing power and resources on an as-needed, pay-as-you-go basis. Users can employ it to satisfy modest needs, such as simple word-processing tasks, or to create large-scale enterprise applications delivered on the web. But cloud computing raises questions of functionality, security, confidentiality, ethics, enforcement, and data ownership. The lack of a clear body of law defining and regulating law enforcement’s access to electronic data and ability to prosecute related crimes creates other risks and erodes confidence in cloud computing. This paper begins with …

O.P.P.: How "Occupy's" Race-Based Privilege May Improve Fourth Amendment Jurisprudence For All, Lenese C. Herbert

Seattle University Law Review

This Article submits that Occupy’s race problem could, ironically, prove to be a solution if protesters grow more serious about exposing the injury of political subordination and systems of privilege that adhere to the criminal justice system. Privilege is a “systemic conferral of benefit and advantage [as a result of] affiliation, conscious or not and chosen or not, to the dominant side of a power system.” Accordingly, now that police mistreatment affects them personally, Occupy may finally help kill a fictitious Fourth Amendment jurisprudence that ignores oppression through improper policing based on racial stigma. Occupy may also help usher in …

Big Brother Is Watching: The Reality Show You Didn't Audition For, J. Amy Dillard

All Faculty Scholarship

In 1984, at the height of the Reagan-era war on drugs, the Supreme Court created a bright-line exception to Fourth Amendment protection by declaring that no person had a reasonable expectation of privacy in an area defined as an open field. When it created the exception, the Court ignored positive law and its own jurisprudence that the Fourth Amendment protects people, not places. The open fields doctrine allows law enforcement officers to enter posted, private areas that are not part of a house or its curtilage for brief surveillance. The Supreme Court has never “extended the open fields doctrine to …

Criminal Procedure And The Racial Profiling Issue For Professor Gates And Sergeant Crowley, L. Darnell Weeden

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Framing The Fourth, Tracey Maclin

Faculty Scholarship

History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.

Cuddihy’s historical analysis is unprecedented. As Justice O’Connor has described it, Cuddihy’s work is “one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken.” Cuddihy reviewed thousands …

Strands Of Privacy: Privacy Rights And Dna Sample Collection From Federal Criminal Defendants Charged With Felonies, Justin Dickerson

Justin Dickerson

On September 14, 2010, the Ninth Circuit held in United States v. Pool that the U.S. government can require federal defendants charged with felonies to provide a DNA sample as a condition of pre-trial release. The chain of rulings that led to this decision was set into motion in January 2009 when Jerry Arbert Pool was indicted in the Eastern District of California for possessing and receiving child pornography in violation of two federal statutes. Pool agreed to all of the court's bail conditions, except for one—Pool refused to provide a DNA sample. In his appeal to the Ninth Circuit, …

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

Hariqbal Basi

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 to …

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

Faculty Scholarship

No abstract provided.

Targeting, Command Judgment, And A Proposed Quantum Of Proof Component: A Fourth Amendment Lesson In Contextual Reasonableness, Geoffrey S. Corn

Geoffrey S. Corn

No decision by a military commander engaged in hostilities has more profound consequence than the decision to launch an attack. Pursuant to the law of armed conflict (LOAC), that decision must be based on the judgment that the object of attack – a person, place, or thing - qualifies as a lawful military objective. This judgment almost always sets in motion the application of deadly combat power, and routinely produces loss of life or grievous bodily injury, often times to individuals and property not the intended object of attack, but considered ‘collateral damage.’ In operational terms, this judgment determines whether …

The Fourth Amendment And Unwarranted Gps Surveillance: An Analysis Of The D.C. Circuit Court Of Appeals’ Decision In United States V. Maynard, Margaret C. Eveker

Saint Louis University Public Law Review

No abstract provided.

Arrest Efficiency And The Fourth Amendment, Song Richardson

Articles in Law Reviews & Other Academic Journals

In recent years, legal scholars have utilized the science of implicit social cognition to reveal how unconscious biases affect perceptions, behaviors, and judgments. Employing this science, scholars critique legal doctrine and challenge courts to take accurate theories of human behavior into account or to explain their failure to do so. Largely absent from this important conversation, however, are Fourth Amendment scholars. This void is surprising because the lessons of implicit social cognition can contribute much to understanding police behavior, especially as it relates to arrest efficiency or hit rates - the rates at which police find evidence of criminal activity …

Full-Body Scanners: Tsa's New "Optional" System For Airport Searches, Stuart A. Hindman

Student Articles and Papers

While the world of commercial air transportation has seen major improvements in many technologies over the last decade, nothing has caused a stir quite like the implementation of full-body scanners (FBS) as a one of the first lines of defense in aviation security at U.S. airports. FBS and “enhanced” pat-downs have been the source of much debate and scrutiny among passengers, flight crews, privacy rights groups, and federal authorities in charge of airport screening. The paper begins with a general overview of the law as it pertains to airport searches and privacy rights. In Part II, the technology behind the …

Unraveling The Exclusionary Rule: From Leon To Herring To Robinson - And Back?, David H. Kaye

Journal Articles

The Fourth Amendment exclusionary rule began to unravel in United States v. Leon. The facts were compelling. Why exclude reliable physical evidence from trial when it was not the constable who blundered, but “a detached and neutral magistrate” who misjudged whether probable cause was present and issued a search warrant? Later cases applied the exception for “good faith” mistakes to a police officer who, pursuing a grudge against a suspect, arrested and searched him and his truck on the basis of a false and negligent report from a clerk in another county of an outstand­ing arrest warrant. The California Supreme …

Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe

Articles in Law Reviews & Other Academic Journals

his is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

School Children And Parolees: Not So Special Anymore, Edwin Butterfoss

Faculty Scholarship

The Fourth Amendment special needs exception may be one of the Court’s most puzzling doctrines. Since its origin, the Court has struggled to define its limits and its place in the Court’s suspicionless search and seizure jurisprudence. At times the Court has suggested that the exception is the only route to upholding a search or seizure in the absence of individualized suspicion, while at other times it has stated that it is just one of a limited number of exceptions to the requirement of individualized suspicion. Historically, while the application of the special needs exception has been unpredictable, one thing …

Crime Mapping And The Fourth Amendment: Redrawing 'High Crime Areas', Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

This article addresses how “crime mapping” technology has the potential to reshape Fourth Amendment protections in designated “high crime areas.” In the past few years, the ability of police administrators to identify and officially label “high crime areas” has rapidly expanded. Geographic Information Systems (GIS) and crime mapping technology has simplified the collection and analysis of crime statistics. These GIS crime mapping technologies can produce almost perfect information about the level, rate, and geographic location of crimes in any given area.While effective policing tools, these technologies have constitutional consequences that are only now being considered. Under existing Supreme Court precedent, …