Law Commons^™

Indefinite Material Witness Detention Without Probable Cause: Thinking Outside The Fourth Amendment, Michael Greenberger

Faculty Scholarship

A constitutional issue recently addressed by the United States Court of Appeals for the Second Circuit in United States v. Awadallah, 349 F.3d 42 (2003), has not received the widespread attention of high-profile litigation concerning the Justice Department's other controversial counter-terrorism policies. It is equally important. The issue arises out of Attorney General Ashcroft's announcement shortly after the terrorist attacks of September 11, 2001 that the aggressive detention of material witnesses [was] vital to preventing, disrupting or delaying new attacks. Since that time, the Department of Justice has used the federal material witness statute (18 U.S.C. Section 3144) to …

Protecting The Citizen Whilst He Is Quiet: Suspicionless Searches, Special Needs And General Warrants, Scott E. Sundby

Articles

No abstract provided.

Reappraising T.L.O.'S Special Needs Doctrine In An Era Of School-Law Enforcement Entanglement, Joshua Gupta-Kagan

Faculty Scholarship

This essay presents one doctrinal method for lawyers to defend children accused of criminal charges in juvenile or adult court: attacking the applicability of the nearly twenty-year old case, New Jersey v. T.L.O. to most school searches. T.L.O. established a lower standard for searches of students by school officials, but it explicitly did not decide what standard the government must meet to justify school searches performed by police officers, creating a doctrinal starting point for advocates to raise challenges to searches involving police. More fundamentally, the T.L.O. Court based its decision on the presumption that firm gates separate public school …

Special Needs And Special Deference: Suspicionless Civil Searches In The Modern Regulatory State, Fabio Arcila

Scholarly Works

This Article examines the Supreme Court’s application of the "special needs" principle, which is part of its Fourth Amendment search and seizure jurisprudence, with an emphasis on suspicionless searches. It argues that both courts and commentators have insufficiently acknowledged the tension between the modern regulatory state, which is significantly dependent upon such searches, and adequately protecting liberty interests. The commentators who criticize the Court’s deference ignore that a deferential approach can be justified. Suspicionless civil searches, for example, are not necessarily incompatible with original intent. Moreover, the many proposals for reforming suspicionless civil search jurisprudence, such as reinvigorating the individualized …

Raiding Islam: Searches That Target Religious Institutions, John G. Douglass

Law Faculty Publications

On the morning of March 20, 2002, while television cameras recorded the events for the evening news, dozens of federal agents entered and searched the offices of several Islamic educational and religious organizations in Northern Virginia. The agents were searching, it appears, for evidence that those organizations contributed money to international groups known to have sponsored terrorist acts. By most public accounts, the targeted institutions were regarded as moderate and progressive voices in American Islam. For that reason, the searches sent shock waves through the American Muslim community. Muslims who had supported the Administration's domestic war on terrorism began to …

The Digital Person: Technology And Privacy In The Information Age (Introduction), Daniel J. Solove

GW Law Faculty Publications & Other Works

THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE (ISBN: 0814798462) (NYU Press 2004) explores the social, political, and legal implications of the collection and use of personal information in computer databases. In the Information Age, our lives are documented in digital dossiers maintained by hundreds (perhaps thousands) of businesses and government agencies. These dossiers are composed of bits of our personal information, which when assembled together begin to paint a portrait of our personalities. The dossiers are increasingly used to make decisions about our lives - whether we get a loan, a mortgage, a license, or a job; …

Consent Engendered: A Feminist Critique Of Consensual Fourth Amendment Searches, Dana Raigrodski

Articles

As I will argue, the Court's consent-to-search cases are driven by this patriarchal ideology to maintain social structures of power disparities and to perpetuate the subordination of women, minorities, and other disempowered members of society.

We need to acknowledge the power and submission paradigm that underlies police-citizen encounters and to scrutinize the entire notion of consent. In order to confront both power and consent, I will turn to feminist critique of consent, particularly in the area of rape, and to feminist writings about choice and agency. Based on these writings I will argue that by distinguishing coerced consent to a …

A Thirteenth Amendment Framework For Combating Racial Profiling, William M. Carter Jr.

Articles

Law enforcement officers’ use of race to single persons out for criminal suspicion (“racial profiling”) is the subject of much scrutiny and debate. This Article provides a new understanding of racial profiling. While scholars have correctly concluded that racial profiling should be considered a violation of the Fourth Amendment, the Fourteenth Amendment’s Equal Protection Clause, and existing federal statutes, this Article contends that the use of race as a proxy for criminality is also a badge and incident of slavery in violation of the Thirteenth Amendment.

Racial profiling is not only a denial of the right to equal treatment, but …

Unconstitutional Police Searches And Collective Responsibility, Bernard E. Harcourt

Faculty Scholarship

Then the police officer told the suspect, without just cause, "I bet you are hiding [drugs] under your balls. If you have drugs under your balls, I am going to fuck your balls up."

Jon Gould and Stephen Mastrofski document astonishingly high rates of unconstitutional police searches in their groundbreaking article, "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution." By their conservative estimate, 30% of the 115 police searches they studied – searches that were conducted by officers in a department ranked in the top 20% nationwide, that were systematically observed by trained field observers, and that were coded …