Law Commons^™

Knowledge And Fourth Amendment Privacy, Matthew Tokson

Northwestern University Law Review

This Article examines the central role that knowledge plays in determining the Fourth Amendment’s scope. What people know about surveillance practices or new technologies often shapes the “reasonable expectations of privacy” that define the Fourth Amendment’s boundaries. From early decisions dealing with automobile searches to recent cases involving advanced information technologies, courts have relied on assessments of knowledge in a wide variety of Fourth Amendment contexts. Yet the analysis of knowledge in Fourth Amendment law is rarely if ever studied on its own.

This Article fills that gap. It starts by identifying the characteristics of Fourth Amendment knowledge. It finds, …

Policing Criminal Justice Data, Wayne A. Logan, Andrew Guthrie Ferguson

Scholarly Publications

No abstract provided.

Policing As Administration, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court's special needs jurisprudence (practices that this Article calls "panvasive"). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors-as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection-they should have to engage in notice-and-comment rulemaking or a similar democratically …

"Reasonable" Police Mistakes: Fourth Amendment Claims And The "Good Faith" Exception After Heien, Karen Mcdonald Henning

St. John's Law Review

(Excerpt)

Given Heien’s distinction between the standard under the Fourth Amendment and the standard for qualified immunity, we are left after Heien with the conclusion that the concept of “objectively reasonable” conduct varies depending on the type of claim the Court is addressing. In particular, Heien leaves open both the question of what constitutes a reasonable mistake of law for Fourth Amendment purposes and the question of how that answer relates to the good faith exception to the exclusionary rule. This Article explores these questions. Part I examines how the Court has increased its tolerance of police mistakes, both in …

Cops On Trial: Did Fourth Amendment Case Law Help George Zimmerman’S Claim Of Self-Defense?, Josephine Ross

Seattle University Law Review

When police kill unarmed civilians, prosecutors and grand juries often decline to bring criminal charges. Even when police officers are indicted, they are seldom convicted at trial. There are many reasons why police are rarely convicted for violent acts. Commentators have criticized the inherent conflict of interest for prosecutors who decide whether to bring charges and the fact that police are investigating their own. However, this article considers another way that police may be treated differently than other people suspected of committing violent crimes. The Fourth Amendment, designed to protect civilians from overzealous officers, now helps insulate police suspected of …

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

Cell Phone Searches After Riley: Establishing Probable Cause And Applying Search Warrant Exceptions, Erica L. Danielsen

Pace Law Review

Part I of this note discusses the Fourth Amendment’s protection against unreasonable search and seizures and its probable cause requirement. The Fourth Amendment’s text remains the same since its enactment. However, interpretation of the Fourth Amendment continues to evolve in order to stay current with society. Interpretation of the Fourth Amendment also varies based on state constitutional law since states can provide its citizens with greater protection than the United States Constitution. This is why the United States Supreme Court, federal district courts, and state courts have all undergone thorough Fourth Amendment analyses when applying the true meaning of the …

Cellphones, Stingrays, And Searches! An Inquiry Into The Legality Of Cellular Location Information, Jeremy H. D'Amico

University of Miami Law Review

Can the Fourth Amendment protect an individual’s right privacy by preventing the disclosure of her location through cell site location information? Does it currently? Should it? Many court opinions answer these questions in both the affirmative and the negative. The rationale underlying each conclusion is disparate. Some rely on statutory regimes, others rely on the United States Supreme Court’s interpretation of reasonableness. However, Cell Site Location Information is a technology that requires uniformity in its interpretation. This note investigates the different interpretations of the Fourth Amendment as it relates to Cell Site Location Information. It explains the technology behind Cell …

That ‘70s Show: Why The 11th Circuit Was Wrong To Rely On Cases From The 1970s To Decide A Cell-Phone Tracking Case, David Oscar Markus, Nathan Freed Wessler

University of Miami Law Review

In light of society's increasing reliance on technology, this article explores a critical question – that of the Fourth Amendment’s protection over privacy in the digital age. Specifically, this article addresses how the law currently fails to protect the privacy of one’s cell phone records and its ramifications. By highlighting the antiquated precedent leading up to the Eleventh Circuit’s ruling in United States v. Davis, this article calls on the judiciary to find a more appropriate balance for protecting the right to privacy in a modern society.

Newsroom: Goldstein On Drug Databases 6-27-2016, Sheri Qualters, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

“Criminal Records” - A Comparative Approach, Sigmund A. Cohn

Georgia Journal of International & Comparative Law

No abstract provided.

Madison At Fort Meade: Checks, Balances, And The Nsa, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Closing The Gap Between What Is Lawful And What Is Right In Police Use Of Force Jurisprudence By Making Police Departments More Democratic Institutions, Jonathan M. Smith

Michigan Journal of Race and Law

On August 9, 2014, Michael Brown was shot to death in Ferguson, Missouri, by police officer Darren Wilson. Members of the Ferguson community rose up in response. Protests demanding that police violence against African Americans cease and that accountability for police misconduct be addressed erupted across the country, and they have not subsided since. Incidents in Baltimore, Maryland; Chicago, Illinois; WallerCounty, Texas; and elsewhere have kept the movement alive. The mass media, the political elite, and the White middle class woke up to a reality that had been long known to communities of color – force is used disproportionately against …

Fourth Amendment Remedies As Rights: The Warrant Requirement, David Gray

David C. Gray

The constitutional status of the warrant requirement is hotly debated. Critics argue that neither the text nor history of the Fourth Amendment support a warrant requirement. Also questioned is the warrant requirement’s ability to protect Fourth Amendment interests. Perhaps in response to these concerns, the Court has steadily degraded the warrant requirement through a series of widening exceptions. The result is an unsatisfying jurisprudence that fails on both conceptual and practical grounds.

These debates have gained new salience with the emergence of modern surveillance technologies such as stingrays, GPS tracking, drones, and Big Data. Although a majority of the Court …

On The 'Considered Analysis' Of Collecting Dna Before Conviction, David H. Kaye

David Kaye

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland's highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Chief Justice Roberts stayed the Maryland judgment, writing that "given the considered analysis of courts on the other side …

Maryland V. King: Per Se Unreasonableness, The Golden Rule, And The Future Of Dna Databases, David H. Kaye

David Kaye

In Maryland v. King, the Supreme Court applied a balancing test to uphold a Maryland statute mandating preconviction collection and analysis of DNA from individuals charged with certain crimes. The DNA profiles are limited to an inherited set of DNA sequences that are not known to be functional and that are tokens of individual identity. This invited online essay examines two aspects of an article on the case by Professor Erin Murphy. I question the claim that the case is pivotal in a conceivable abandonment of the per se rule that warrantless, suspicionless searches are unconstitutional unless they fall …

Supreme Court, New York County, Kellogg V. Travis, Donna A. Napolitano

Touro Law Review

No abstract provided.

Supreme Court, Kings County, People V. Ortiz, Robert Kronenberg

Touro Law Review

No abstract provided.

Supreme Court, Kings County, People V. Butler, Robert B. Kronenberg

Touro Law Review

No abstract provided.

Court Of Appeals, People V. Robinson, Jonathan Janofsky

Touro Law Review

No abstract provided.

Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried

David Kaye

DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been neglected.At the investigative stage, courts have barely begun to focus on the legal limitations on the power of the police to obtain samples directly from suspects and to use the data from DNA samples in various ways. Issues such as the propriety of "DNA dragnets" (in which large numbers of individuals in a geographic area …

Dna Identification Databases: Legality, Legitimacy, And The Case For Population-Wide Coverage, David H. Kaye, Michael E. Smith

David Kaye

Over the past decade, law enforcement authorities have amassed huge collections of DNA samples and the identifying profiles derived from them. Large DNA databanks routinely help to identify the guilty and to exonerate the innocent, but as the databanks grow, so do fears about civil liberties. Perhaps the most controversial policy issue in the creation of these databases is the question of coverage: Whose DNA profiles should be stored in them? The possibilities extend from convicted violent sex offenders to all convicted felons, to everyone arrested, to the entire population. This Article questions the rationales for drawing the line at …

United States District Court, Southern District Of New York, People For The Ethical Treatment Of Animals V. Giuliani, Melissa Murphy

Touro Law Review

No abstract provided.

Much Ado About Some Things: Fourth Amendment Rulings Dominate The Supreme Court’S Criminal Law Decisions In The 2000 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

Birchfield V. North Dakota:Why The United States Supreme Court Should Rely On Riley V. California To Hold That Criminalizing A Suspect’S Refusal To Consent To A Warrantless Blood Test Violates The Fourth Amendment, Adam Lamparello, Cynthia Swann

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Search And Seizures As Applied To Changing Digital Technologies: A Look At Pole Camera Surveillance, Tiffany M. Russo

Seton Hall Circuit Review

No abstract provided.

The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports

Kit Kinports

This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question whether …

Newsroom: A True Original(Ist) 02-15-2016, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Small Data Surveillance V. Big Data Cybersurveillance, Margaret Hu

Margaret Hu

This Article highlights some of the critical distinctions between small data surveillance and big data cybersurveillance as methods of intelligence gathering. Specifically, in the intelligence context, it appears that “collect-it-all” tools in a big data world can now potentially facilitate the construction, by the intelligence community, of other individuals' digital avatars. The digital avatar can be understood as a virtual representation of our digital selves and may serve as a potential proxy for an actual person. This construction may be enabled through processes such as the data fusion of biometric and biographic data, or the digital data fusion of the …

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

Howard M Wasserman

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 …