Law Commons^™

Revising Reasonableness In The Cloud, Ian Walsh

Washington Law Review

Save everything—just in case––and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such …

Saving America’S Privacy Rights: Why Carpenter V. United States Was Wrongly Decided And Why Courts Should Be Promoting Legislative Reform Rather Than Extending Existing Privacy Jurisprudence, David Stone

St. Mary's Law Journal

Privacy rights are under assault, but the Supreme Court’s judicial intervention into the issue, starting with Katz v. United States and leading to the Carpenter v. United States decision has created an inconsistent, piecemeal common law of privacy that forestalls a systematic public policy resolution by Congress and the states. In order to reach a satisfactory and longlasting resolution of the problem consistent with separation of powers principles, the states should consider a constitutional amendment that reduces the danger of pervasive technologyaided surveillance and monitoring, together with a series of statutes addressing each new issue posed by technological change as …

Cell Phones Are Orwell's Telescreen: The Need For Fourth Amendment Protection In Real-Time Cell Phone Location Information, Matthew Devoy Jones

Cleveland State Law Review

Courts are divided as to whether law enforcement can collect cell phone location information in real-time without a warrant under the Fourth Amendment. This Article argues that Carpenter v. United States requires a warrant under the Fourth Amendment prior to law enforcement’s collection of real-time cell phone location information. Courts that have required a warrant prior to the government’s collection of real-time cell phone location information have considered the length of surveillance. This should not be a factor. The growing prevalence and usage of cell phones and cell phone technology, the original intent of the Fourth Amendment, and United States …

Forensic Border Searches After Carpenter Require Probable Cause And A Warrant, Christopher I. Pryby

Michigan Law Review

Under the border search doctrine, courts have upheld the federal government's practice of searching people and their possessions upon entry into or exit from the United States, without any requirement of suspicion, as reasonable under the Fourth Amendment. Since the advent of electronic devices with large storage capacities, courts have grappled with whether this definition of reasonableness continues to apply. So far, courts have consistently characterized “nonforensic” border inspections of electronic devices (for example, paging through photos on a phone) as “routine” searches that, like inspecting luggage brought across international lines, require no suspicion. But there is a circuit split …

Hotline Ping: Harmonizing Contemporary Cell Phone Technology With Traditional Fourth Amendment Protections, Brianne M. Chevalier

Roger Williams University Law Review

No abstract provided.

Cause To Believe What? The Importance Of Defining A Search's Object--Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the mere evidence rule in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the object of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search might lead to evidence of wrongdoing triggers a very different inquiry than probable cause to believe that a search will produce evidence of criminal activity. The failure to address the constraints that should be imposed on …

Bringing Clarity To Administrative Search Doctrine: Distinguishing Dragnets From Special Subpopulation Searches, Eve Brensike Primus

Articles

Anyone who has been stopped at a sobriety checkpoint, screened at an international border, scanned by a metal detector at an airport or government building, or drug tested for public employment has been subjected to an administrative search or seizure. Searches of public school students, government employees, and probationers are characterized as administrative, as are business inspections and-increasingly-wiretaps and other searches used in the gathering of national security intelligence. In other words, the government conducts thousands of administrative searches every day. None of these searches requires either probable cause or a search warrant. Instead, courts evaluating administrative searches need only …

Disentangling Administrative Searches, Eve Brensike Primus

Articles

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …

Do We Need A New Fourth Amendment?, Orin S. Kerr

Michigan Law Review

Slobogin's book offers a new conceptualization of the Fourth Amendment rooted in what he calls the proportionality principle: An investigative technique should be permitted under the Constitution only if the strength of the government's justification for the technique is roughly proportionate to the level of intrusion it causes . Slobogin roots this principle in Terry v. Ohio and its pragmatic balancing of law-enforcement and privacy interests. To determine how much justification the Fourth Amendment requires, Slobogin argues, courts should assess the intrusiveness of the investigatory technique and then set a proportionate threshold of proof that the government must show. The …

The 'High Crime Area' Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis, Andrew Ferguson, Damien Bernache

Articles in Law Reviews & Other Academic Journals

This article proposes a legal framework to analyze the "high crime area" concept in Fourth Amendment reasonable suspicion challenges.Under existing Supreme Court precedent, reviewing courts are allowed to consider that an area is a "high crime area" as a factor to evaluate the reasonableness of a Fourth Amendment stop. See Illinois v. Wardlow, 528 U.S. 119 (2000). However, the Supreme Court has never defined a "high crime area" and lower courts have not reached consensus on a definition. There is no agreement on what a "high-crime area" is, whether it has geographic boundaries, whether it changes over time, whether it …

Privacy And The Criminal Arrestee Or Suspect: In Search Of A Right, In Need Of A Rule, Sadiq Reza

Articles & Chapters

Criminal accusation stigmatizes. Merely having been accused of a crime lasts in the public eye, damaging one's reputation and threatening current and future employment, relationships, social status, and more. But vast numbers of criminal cases are dismissed soon after arrest, and countless accusations are unfounded orunprovable. Nevertheless, police officers and prosecutors routinely name criminal accusees to the public upon arrest or suspicion, with no obligation to publicize a defendant's exoneration, or the dismissal of his case, or a decision not to file charges against him at all. Other individuals caught up in the criminal process enjoy protections against the public …

Privacy And The Criminal Arrestee Or Suspect: In Search Of A Right, In Need Of A Rule, Sadiq Reza

Faculty Scholarship

Criminal accusation stigmatizes. Merely having been accused of a crime lasts in the public eye, damaging one's reputation and threatening current and future employment, relationships, social status, and more. But vast numbers of criminal cases are dismissed soon after arrest, and countless accusations are unfounded or unprovable. Nevertheless, police officers and prosecutors routinely name criminal accusees to the public upon arrest or suspicion, with no obligation to publicize a defendant's exoneration, or the dismissal of his case, or a decision not to file charges against him at all. Other individuals caught up in the criminal process enjoy protections against the …

Constitutional Posture Of Canine Sniffs, Lina Shahin

Touro Law Review

No abstract provided.

Anticipatory Search Warrants: The Supreme Court's Opportunity To Reexamine The Framework Of The Fourth Amendment, David P. Mitchell

Vanderbilt Law Review

The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures," and provides that "no War-rants shall issue, but upon probable cause."' Although its language is relatively clear, the application of the Fourth Amendment has created more controversy than the application of perhaps any other constitutional amendment.' Given the questions raised by a police-endorsed practice of anticipatory search warrants,' the search and seizure debate is far from over.

An anticipatory search warrant is a warrant based on a showing of probable cause that particular evidence of a crime will exist at a specific location in the future. Challenges …