Law Commons^™

A New Test For The New Crime Exception, Colin Miller

Faculty Publications

The new crime exception to the Fourth Amendment exclusionary rule allows prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Unfortunately, as illustrated in this Article, courts largely have applied this new crime exception without any analytical framework or regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest.

By doing so, courts have allowed the new crime exception to swallow two …

The Empty Promise Of The Fourth Amendment In The Family Regulation System, Anna Arons

Faculty Publications

Each year, state agents search the homes of hundreds of thousands of families across the United States under the auspices of the family regulation system. Through these searches—required elements of investigations into allegations of child maltreatment in virtually every jurisdiction—state agents invade the home, the most protected space in Fourth Amendment jurisprudence. Accordingly, federal courts agree that the Fourth Amendment’s warrant requirement applies to family regulation home searches. But almost universally, the abstract recognition of Fourth Amendment protections runs up against a concrete expectation on the ground that state actors should have easy and expansive access to families’ homes. Legislatures …

The Fourth Amendment At Home, Thomas P. Crocker

Faculty Publications

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 …

Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Josh Gupta-Kagan

Faculty Publications

The Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue ruled in the 1990s and 2000s that T.L.O. applied to SRO-involved …

The Plausible And The Possible: A Bayesian Approach To The Analysis Of Reasonable Suspicion, W. David Ball

Faculty Publications

The United States Supreme Court uses the wrong approach to analyze reasonable suspicion. The Court asks whether, if criminal activity were afoot, an officer would be likely to see what she saw (e.g. furtive gestures or flight from police). The ultimate question we are interested in, however, is whether, given what the officer saw, her conclusion about criminal activity was reasonable. These two questions are different. Even if it is highly likely that an officer would make a set of observations when criminal activity is afoot, it does not follow that criminal activity is itself highly likely when an officer …

A Tactical Fourth Amendment, Brandon L. Garrett, Seth W. Stoughton

Faculty Publications

What rules regulate when police can kill? As ongoing public controversy over high-profile police killings drives home, the civil, criminal, and administrative rules governing police use of force all remain deeply contested. Members of the public may assume that police rules and procedures provide detailed direction for when officers can use deadly force. However, many agencies train officers to respond to threats according to a force “continuum” that does not provide hardedged rules for when or how police can use force or deadly force. Nor, as recent cases have illustrated, does a criminal prosecution under state law readily lend itself …

Carpenter Privacy Case Vexes Justices, While Tech Giant Microsoft Battles Government In Second U.S. Supreme Court Privacy Case With International Implications, Richard J. Peltz-Steele

Faculty Publications

Fall 2017 saw a major privacy case with international implications reach the U.S. Supreme Court this term, Carpenter v. United States. Now a second such case pits the Government against Big Tech in United States v. Microsoft. Carpenter is a criminal case involving federal seizure of cell phone location data from service providers. Arising under the “reasonable grounds” provision of the Stored Communications Act (SCA), the case accentuates Americans’ lack of constitutional protection for personal data in third-party hands, in contrast with emerging global privacy norms. The second major privacy case headed for Supreme Court decision in 2018 also arises …

Flagrant Police Abuse: Why Black Lives (Also) Matter To The Fourth Amendment, Joelle A. Moreno

Faculty Publications

No abstract provided.

The Pond Betwixt: Differences In The U.S.-Eu Data Protection/Safe Harbor Negotiation, Richard J. Peltz-Steele

Faculty Publications

This article analyzes the differing perspectives that animate US and EU conceptions of privacy in the context of data protection. It begins by briefly reviewing the two continental approaches to data protection and then explains how the two approaches arise in a context of disparate cultural traditions with respect to the role of law in society. In light of those disparities, Underpinning contemporary data protection regulation is the normative value that both US and EU societies place on personal privacy. Both cultures attribute modern privacy to the famous Warren-Brandeis article in 1890, outlining a "right to be let alone." But …

Dystopian Constitutionalism, Thomas P. Crocker

Faculty Publications

This article describes and defends the distinctive role and rich tradition of using contrastive dystopian states in constitutional theory and practice. As constitutional tradition going back to the founding, U.S. constitutional analysis was replete with arguments about what practices would lead to an undesirable state of tyranny. In more recent constitutional history, the use of contrasting examples of the “police state,” totalitarianism, or Orwellian references have been prevalent in Supreme Court opinions across doctrinal domains, most recently making a prominent appearance at oral argument in the Fourth Amendment case, United States v. Jones. In contrast to more comprehensive constitutional theories, …

Corporate Avatars And The Erosion Of The Populist Fourth Amendment, Avidan Cover

Faculty Publications

The current state of Fourth Amendment jurisprudence leaves it to technology corporations to challenge court orders, subpoenas, and requests by the government for individual users’ information. The third-party doctrine denies people a reasonable expectation of privacy in data they transmit through telecommunications and Internet service providers. Third-party corporations become, by default, the people’s corporate avatars. Corporate avatars, however, do a poor job of representing individuals’ interests. Moreover, vesting the Fourth Amendment’s government-oversight functions in corporations fails to cohere with the Bill of Rights’ populist history and the Framers’ distrust of corporations.

This article examines how the third-party doctrine proves unsupportable …

Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbulling Laws, Emily Suski

Faculty Publications

For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This …

Ubiquitous Privacy, Thomas P. Crocker

Faculty Publications

No abstract provided.

Policing Facts, Seth W. Stoughton

Faculty Publications

The United States Supreme Court’s understanding of police practices plays a significant role in the development of the constitutional rules that regulate officer conduct. As it approaches the questions of whether to engage in constitutional regulation and what form of regulation to adopt, the Court discusses the environment in which officers act, describes specific police practices, and explains what motivates officers. Yet the majority of the Court’s factual assertions are made entirely without support or citation, raising concerns about whether the Court is acting based on a complete and accurate perception. When it comes to policing facts, the Court too …

'Lonesome Road': Driving Without The Fourth Amendment, Lewis R. Katz

Faculty Publications

American states and municipalities have so many minor traffic regulations that every time a driver gets behind the wheel of a car he or she is likely to commit multiple violations. The violation of any traffic regulation empowers police officers to stop the vehicle, ticket and, in some states, arrest the motorist. Police are physically unable to stop and ticket, let alone arrest, every motorist committing a traffic violation. Instead, police are vested with unlimited discretion when choosing which motorists to stop, warn, ticket, or arrest. So long as there is probable cause for a traffic violation, courts will not …

Beyond Law Enforcement: Camreta V. Greene, Child Protection Investigations, And The Need To Reform The Fourth Amendment Special Needs Doctrine, Josh Gupta-Kagan

Faculty Publications

The Fourth Amendment “special needs” doctrine distinguishes between searches and seizures that serve the “normal need for law enforcement” and those that serve some other “special need,” excusing non-law enforcement searches and seizures from the warrant and probable cause requirements. The Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not those that threaten important non-criminal constitutional rights.

Child protection investigations illustrate the problem: Millions of times each year, state child protection authorities search families’ homes, and seize children for interviews about alleged maltreatment. Only a minority of these investigations involve an …

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, …

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 …

Safford Unified School District No. 1 V. Redding, And The Future Of School Strip Searches, Lewis R. Katz

Faculty Publications

Each year in America an unknown number of children in primary and secondary schools are strip searched by teachers and/or school administrators, forced to remove pants and shirts down to their underwear and sometimes forced to expose their breasts and genitals. In Safford Unified School District No. 1 v. Redding, 129 S.Ct. 2633 (29), the Supreme Court weighed in on the issue, finding that school officials violated the child’s Fourth Amendment rights during a strip search but reversing the Ninth Circuit and awarding the school officials qualified immunity not withstanding the ineptitude of the investigation. The Court purported to apply …

Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman

Faculty Publications

In Scott v. Harris (2007), the Supreme Court granted summary judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting summary judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to any interpretation …