Law Commons^™

Fourth Amendment Stops, Arrests And Searches In The Context Of Qualified Immunity, Erwin Chemerinsky, Karen M. Blum

Touro Law Review

No abstract provided.

Court Of Appeals Of New York – People V. Hall, Christopher Shishko

Touro Law Review

No abstract provided.

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 …

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.

Policing Identity, Wayne A. Logan

Scholarly Publications

Identity has long played a critical role in policing. Learning “who” an individual is not only affords police knowledge of possible criminal history, but also of “what” an individual might have done. To date, however, these matters have eluded sustained scholarly attention, a deficit that has assumed ever greater significance as government databases have become more comprehensive and powerful. Identity evidence, in short, has and continues to suffer from an identity crisis, which this Article seeks to remedy. The Article does so by first surveying the methods historically used by police to identify individuals, from nineteenth-century efforts to measure bodies …

New Police Surveillance Technologies And The Good-Faith Exception: Warrantless Gps Tracker Evidence After United States V. Jones, Caleb Mason

Nevada Law Journal

No abstract provided.

Looking Through The Prism Of Privacy And Trespass: Smartphones And The Fourth Amendment, Saby Ghoshray

University of the District of Columbia Law Review

Technology in the twenty-first century has dramatically changed our lives, but the law has not kept pace with technological advances. The treatment of smartphones in Fourth Amendment jurisprudence is no exception. This is made evident by the increasingly scattered outcomes of litigation involving the privacy interests of smartphone owners.' As the cross-jurisdictional inconsistencies of judicial decisions applying the Fourth Amendment to smartphones mount, I am drawn to seek answers from two foundational pillars of the Supreme Court's search and seizure jurisprudence: protection against invasions of privacy and the bulwark against trespass.

The Drones Are Coming! Will The Fourth Amendment Stop The Threat To Our Privacy., Robert Molko

Robert Molko

The Drones are coming!

Will the Fourth Amendment Stop their Threat to our Privacy?

Local police have begun to use drones and are planning to expand their use of to survey communities for criminal activity.

On February 14, 2012, President Obama signed the “FAA Modernization and Reform Act of 2012″ into law; it requires the FAA to expedite the process to authorize both public and private use of drones in the national navigable airspace.

The Fourth Amendment of the U.S. Constitution protects our privacy from unreasonable intrusions by the government and we have come to depend on that.

Today, in …

Hold On: The Remarkably Resilient, Constitutionally Dubious "48-Hour Hold", Steven Mulroy

Steven Mulroy

This article discusses the surprisingly widespread, little-known practice of “48-hour holds,” where police detain a suspect without charge or access to bail for up to 48 hours to continue their investigation; at the end of 48 hours, they either charge or release him. Although it has not been discussed in the scholarly literature, the practice has occurred in a number of large local jurisdictions over the past few decades, and continues today in some of them. The “holds” often take place, admittedly or tacitly, without the probable cause needed to charge a defendant, and thus in violation of the Fourth …

Reforming Surveillance Law: The Swiss Model, Susan Freiwald, Sylvain Metille

Susan Freiwald

Reforming Surveillance Law: The Swiss Model

Susan Freiwald & Sylvain Métille

As implemented over the past twenty-six years, the Electronic Communications Privacy Act (ECPA), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law (CrimPC) regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This article compares the two approaches and argues that recent proposals to reform EPCA in a piecemeal fashion will not suffice. Instead, the Swiss CrimPC law presents a model for more fundamental reform of U.S. law.

This article is the first to analyze …

Contextual Expectations Of Privacy, Andrew Selbst

Andrew Selbst

Fourth Amendment search jurisprudence is nominally based on a “reasonable expectation of privacy,” but actual doctrine is detached from society’s conception of privacy. Courts rely on various binary distinctions: Is a piece of information secret or not? Was the observed conduct inside or outside? While often convenient, none of these binary distinctions can adequately capture the complicated range of ideas encompassed by “privacy.” Over the last decade, privacy theorists have begun to understand that a consideration of context is essential to a full understanding of privacy. Helen Nissenbaum’s theory of contextual integrity, which characterizes a right to privacy as the …

Eavesdropping Under New York And Federal Law: How New York Is Departing From Long-Standing Interpretations Mirroring Federal Law - People V. Rabb, Bailey Ince

Touro Law Review

No abstract provided.

Vehicle Checkpoints: The Ever-Expanding Array Of Purposes For Which A Vehicle May Be Stopped - People V. Gavenda, Jan Lucas

Touro Law Review

No abstract provided.

Roving Border Patrols In New York – Sometimes The Drug Smuggler Does Not Get Convicted: The Legal Limitations Regarding Vehicle Stops And Consent Searches Based Upon Reasonable Suspicion - People V. Banisadr, Robert Mitchell

Touro Law Review

No abstract provided.

Do Automobile Passengers Have A Legitimate Expectation Of Privacy? An Analysis Of Reasonable Expectation Under The Fourth Amendment - People V. Howard, Lisa Belrose

Touro Law Review

No abstract provided.

Breaking The Seal On White-Collar Criminal Search Warrant Materials , David Horan

Pepperdine Law Review

No abstract provided.

Wilson V. Layne: Increasing The Scope Of The Fourth Amendment Right To Privacy, Ashlea Wright

Pepperdine Law Review

No abstract provided.

Search And Seizure: New York Vs. Federal Approach - People V. Keita, Tillie S. Mirman

Touro Law Review

No abstract provided.

The Inevitable Discovery Rule - Justice Served Or Justice Thwarted? - People V. Pinckney, Danielle M. Hansen

Touro Law Review

No abstract provided.

It’S In The Bag: Voluntariness, Scope, And The Authority To Grant Consent - United States V. Harris, Daniel Fier

Touro Law Review

No abstract provided.

Eyephones: A Fourth Amendment Inquiry Into Mobile Iris Scanning, Christopher R. Jones

South Carolina Law Review

No abstract provided.

South Carolina Women Are Not Preexisting Conditions, Elizabeth A. Hoskins

South Carolina Law Review

No abstract provided.

Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert

Articles

Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s …

New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo

All Faculty Scholarship

No abstract provided.

Law, Dissonance And Remote Computer Searches, Susan W. Brenner

Susan Brenner

This article examines the rule dissonance that can arise when law enforcement officers from one jurisdiction, e.g., the United States, remotely search a computer in another jurisdiction, e.g., Russia. It explains that such a search occurred in 2000, when Federal Bureau of Investigation agents tricked two Russian cybercriminals to Seattle and tricked them into using laptops loaded with spyware to access their computer in Russia. The FBI agents then used the usernames and passwords the spyware recorded to access the Russian computer and download data, which was used to prosecute the Russians for violating U.S. cybercrime law. One moved to …

Pawing Their Way To The Supreme Court: The Evidence Required To Prove A Narcotic Detection Dog's Reliability, Monica Fazekas

Northern Illinois University Law Review

Historically, courts have given great deference to the anatomical scent detectors from which the canine’s heightened sense of smell derives. In 2005, the Supreme Court supported this position and held that a drug detection dog’s sniff did not constitute a search under the Fourth Amendment. The Court partially based its reasoning on the classification of the dog sniff as sui generis. With this holding, courts began admitting evidence of a drug detection dog’s alert to narcotics to constitute the requisite probable cause for an officer’s search. Virtually every circuit allows a canine alert to establish such probable cause by presenting …

A Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence, David C. Gray

David C. Gray

Much of the Supreme Court’s contemporary Fourth Amendment exclusionary rule jurisprudence is constructed upon an analytic mistake that H.L.A. Hart described in another context as a “spectacular non sequitur.” That path to irrelevance is paved by the Court’s recent insistence that the sole justification for excluding evidence seized in violation of the Fourth Amendment is the prospect of deterring law enforcement officers. This deterrence-only approach ignores or rejects more principled justifications that inspired the rule at its genesis and have sustained it through the majority of its history and development. More worrisome, however, is the conceptual insufficiency of deterrence considerations …

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

Renée M. Hutchins

No abstract provided.

Watching The Watchmen: The People's Attempt To Hold On-Duty Law Enforcement Officers Accountable For Misconduct And The Illinois Law That Stands In Their Way, Robert J. Tomei Jr.

Northern Illinois University Law Review

In the days when police brutality and public official corruption pump through the veins of society as a fermenting virus, a critical analysis of a controversial law curtailing efforts to intensify public awareness of government official transgressions is undertaken. In the great State of Illinois, legislative amendments to the Illinois Eavesdropping Act have established a moratorium on the audio recording, without prior consent, of any judge, state's attorney or law enforcement officer while in the performance of his or her official duties, regardless of whether or not the public official(s) had any objective, justifiable or reasonable expectation of privacy when …