Criminal Procedure Commons^™

Forensic Searches Of Electronic Devices And The Border Search Exception: Movement Toward Requirement For Particularized Suspicion, Marissa Pursel

Akron Law Review

Under current federal law, government agents at the national border have broad discretion to search a traveler seeking to enter or exit the United States. While these government agents would generally need a warrant to conduct the same search elsewhere, searches at the border do not require any degree of suspicion. The policy argument that protects this practice is national security, recognizing the border’s vulnerability to physical threats such as the transportation of contraband and dangerous weapons. Current federal policy, however, makes no distinction between the search of a traveler’s suitcase and the search of her smartphone. The Fourth and …

The Probationer, The Free Man, And The Fourth Amendment: Constitutional Protections For Those Who Have Served Their Sentences And Those Who Have Not, Rachel Ness-Maddox

Mercer Law Review

In Park v. State, the Georgia Supreme Court evaluated whether persons convicted of sexual offenses and subsequently classified as "sexually dangerous predator[s]" may be required to wear Global Positioning System (GPS) tracking devices after serving their full sentences, including fulfilling probation or parole requirements. The court held that, under the Fourth Amendment of the United States Constitution, such a requirement is invalid because it infringes on the right free people have against unreasonable searches and seizures executed by the state—no matter the crimes for which they were convicted or their status as registered sex offenders. However, the court made …

The Reasonableness And Unreasonableness Of Delays In Obtaining Search Warrants, Brianna N. Stanley

Mercer Law Review

Imagine a couple driving down the road and lawfully being stopped by police. Next, envision that traffic stop turning into an arrest and the couple's phones being seized, their vehicle being impounded, and their computer and tablet within the vehicle taken to the inventory room at the police department. If you are thinking this does not sound like anything out of the ordinary, you would be correct. However, imagine their defense attorney constantly asking for the phone, tablet, and computer to be given back to the couple so that evidence on these devices could be examined for their criminal case. …

The Indiscretion Of Friends: Fourth Amendment Concerns About The Ability To Predict A Person’S Online Social Activity By Monitoring Her Contacts, George M. Dery Iii

Minnesota Journal of Law, Science & Technology

No abstract provided.

Limited Privacy In “Pings:” Why Law Enforcement’S Use Of Cell-Site Simulators Does Not Categorically Violate The Fourth Amendment, Lara M. Mcmahon

Washington and Lee Law Review

This Note proposes four factors courts should consider when asked to determine whether law enforcement’s use of a cell-site simulator constituted a Fourth Amendment search. The first asks courts to consider whether the cell-site simulator surveillance infringed on a constitutionally protected area, such as the home. The second asks courts to consider the duration of the cell-site simulator surveillance. The third asks courts to consider whether the cell-site simulator surveillance was conducted actively or passively. The fourth asks courts to focus on the nature and depth of the information obtained as a result of the cell-site simulator surveillance. If, after …

International Impact Of The Clarifying Lawful Overseas Use Of Data (Cloud) Act And Suggested Amendments To Improve Foreign Relations, Jordan A. Klumpp

Georgia Journal of International & Comparative Law

No abstract provided.

State V. Pinkham: Erosion Of Meaningful Forth Amendment Protection For Vehicle Stops In Maine?, Roger M. Clement Jr.

Maine Law Review

In State v. Pinkham, the Maine Supreme Judicial Court, sitting as the Law Court, held that a police officer's stop of a motorist to inquire and advise about the motorist's improper-but not illegal-lane usage did not necessarily violate the Fourth Amendment's proscription against unreasonable seizures. The Pinkham decision is the first time that the Law Court has validated the stop of a moving vehicle in the absence of either a suspected violation of law or an imminent, ongoing threat to highway safety.
This Note considers whether the Law Court was correct in sustaining the police officer's stop of Ronald Pinkham. …

A Third-Party Doctrine For Digital Metadata, H. Brian Holland

Faculty Scholarship

For more than four decades, the third-party doctrine was understood as a bright-line, categorical rule: there is no legitimate privacy interest in any data that is voluntarily disclosed or conveyed to a third party. But this simple rule has dramatic effects in a world of ubiquitous networked computing, mobile technologies, and the commodification of information. The digital devices that facilitate our daily participation in modern society are connected through automated infrastructures that are designed to generate vast quantities of data, nearly all of which is captured, utilized, and stored by third-party service providers. Under a plain reading of the third-party …

Terms Of Service: The Use And Protection Of Genomic Information By Companies, Databases, And Law Enforcement, Sophia Kallas

Honors Program: Senior Projects (Public)

Private genomic companies have become a popular trend in the last two decades by providing customers with information regarding their ancestry and health risks. However, the profiles received from these companies can also be uploaded to public databases for various purposes, including locating other family members. Both testing companies and public databases have private interests, and both are at risk of law enforcement intervention for the purpose of forensic familial searching. There is little federal legislation protecting the privacy of an individual’s genetic profile. Consequently, it has been up to federal agencies, state laws, and judicial precedents to prevent the …

Revitalizing Fourth Amendment Protections: A True Totality Of The Circumstances Test In § 1983 Probable Cause Determinations, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The Article analyzes claims of police misconduct and false arrest, specifically addressing the issue of whether a police officer may ignore evidence of an affirmative defense, such as self-defense, when determining probable cause for an arrest. The inquiry most often arises in § 1983 civil claims for false arrest where the officer was aware of some evidence a crime had been committed, but was also aware of facts indicating the suspect had an affirmative defense to the crime observed. In extreme cases, the affirmative defense at issue is actually self-defense in response to the officer’s own unlawful conduct. As police …

People V. Buza: A Step In The Wrong Direction, Emily R. Pincin

Loyola of Los Angeles Law Review

No abstract provided.

Stingray Cell-Site Simulator Surveillance And The Fourth Amendment In The Twenty-First Century: A Review Of The Fourth Amendment In An Age Of Surveillance, And Unwarranted, Harvey Gee

St. John's Law Review

(Excerpt)

This Review discusses two timely and insightful books examining the changing relationship between privacy and the Fourth Amendment in the digital era. Part I discusses the tensions between the need to protect privacy rights and the slowly evolving legal landscape during a time of rapidly changing technology, to introduce David Gray’s The Fourth Amendment in an Age of Surveillance. His book explains how the Fourth Amendment, though embattled, can have a prominent role in twenty-first century discussions of privacy, technology, and surveillance. Gray’s analysis is engaged to broaden the conversation about Stingray technology. This section analyzes a sampling of …

Privacy, Eavesdropping, And Wiretapping Across The United States: Reasonable Expectation Of Privacy And Judicial Discretion, Carol M. Bast

Catholic University Journal of Law and Technology

One-party consent and all-party consent eavesdropping and wiretapping statutes are two broad pathways for legislation to deal with the problem of secret taping and some states protect conversation under state constitutions. Whether a conversation is protected against being taped as a private conversation is often gauged by the reasonable expectation of privacy standard. Judges in both all-party consent and one-party consent jurisdictions have had to use their leeway under the reasonable expectation of privacy standard to arrive at what at the time seemed to be the most appropriate solution, perhaps in doing so creating a case law exception.

The Fourth Amendment Inventory As A Check On Digital Searches, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Police and federal agents generally must obtain a warrant to search the tens of thousands of devices they seize each year. But once they have a warrant, courts afford these officers broad leeway to search the entire device, every file and folder, all metadata and deleted data, even if in search of only one incriminating file. Courts avow great reverence for the privacy of personal information under the Fourth Amendment but then claim there is no way to limit where an officer might find the target files, or know where the suspect may have hidden them.

These courts have a …

Recalibrating Suspicion In An Era Of Hazy Legality, Deborah Ahrens

Seattle University Law Review

After a century of employing varying levels of prohibition enforced by criminal law, the United States has entered an era where individual states are rethinking marijuana policy, and the majority of states have in some way decided to make cannabis legally available. This symposium Article will offer a description of what has happened in the past few years, as well as ideas for how jurisdictions can use the changing legal status of cannabis to reshape criminal procedure more broadly. This Article will recommend that law enforcement no longer be permitted use the smell of marijuana as a reason to search …

The Sativas And Indicas Of Proof: Why The Smell Of Marijuana Should Not Establish Probable Cause For A Warrantless Vehicle Search In Illinois, 53 Uic J. Marshall L. Rev. 187 (2020), Cece White

UIC Law Review

No abstract provided.

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Protecting Online Privacy In The Digital Age: Carpenter V. United States And The Fourth Amendment’S Third-Party Doctrine, Cristina Del Rosso, Carol M. Bast

Catholic University Journal of Law and Technology

The goal of this paper is to examine the future of the third-party doctrine with the proliferation of technology and the online data we are surrounded with daily, specifically after the Supreme Court’s decision in Carpenter v. United States. It is imperative that individuals do not forfeit their Constitutional guarantees for the benefit of living in a technologically advanced society. This requires an understanding of the modern-day functional equivalents of “papers” and “effects.”

Looking to the future, this paper contemplates solutions on how to move forward in this technology era by scrutinizing the relevancy of the third-party doctrine due …

In General Public Use: An Unnecessary Test In Fourth Amendment Searches Using Advanced Sensing Technology, Mike Petridis

Touro Law Review

No abstract provided.

The Origins And Legacy Of The Fourth Amendment Reasonableness Balancing Model, Kit Kinports

Faculty Scholarship

The overwhelming majority of the Supreme Court’s Fourth Amendment cases over the past fifty years have been resolved using a warrant presumption model, which determines the constitutionality of a search or seizure by asking whether law enforcement officials had probable cause and a warrant, or some exception to those requirements. But three decisions, beginning in 2001, mysteriously deviated from that approach and applied a reasonableness balancing model, upholding the searches in those cases after considering the totality of the circumstances and weighing the competing government interests against the defendant’s privacy interests. This balancing approach has justifiably been criticized as amorphous, …

Excessive Force: A Feasible Proximate Cause Approach, Latasha M. James

University of Richmond Law Review

Through an analysis of the statutory and case law surrounding the use of excessive force, this Comment will review how differentiating applications of the law have led to varying and sometimes unjust results. Jurisdictions differ regarding what pre-shooting conduct can be considered, what the “objective reasonableness” standard encompasses, and how tort law should impact this analysis. Therefore, this Comment works to provide a framework for the consistent application of the objective reasonableness standard. Part I reviews the proscribed levels of force, noting when the use of force becomes excessive, and discusses the tort concept of proximate cause and how the …

United States V. Touset, Katelyn James

NYLS Law Review

No abstract provided.

What Would Mlk Do?: A Civil Rights Model Of “Good Citizenship” In Criminal Procedure, Trevor George Gardner

Scholarship@WashULaw

Good citizenship and eager participation in police investigations would seem to fit hand-in-glove. The good citizen helps to enforce the criminal law, particularly if the physical safety of the citizenry is thought to be at risk. But as Bennett Capers argues in his essay, Criminal Procedure and the Good Citizen, this version of the good citizen—crafted and propagated by our nation’s highest court—falls into direct tension with the activist principles animating the Civil Rights Movement. For instance, Martin Luther King, Jr., insisted that the citizen not suffer from a cultural condition Capers describes as “too much respect for majoritarian …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Core Criminal Procedure, Steven Arrigg Koh

Faculty Scholarship

Constitutional criminal procedural rights are familiar to contemporary criminal law scholars and practitioners alike. But today, U.S. criminal justice may diverge substantially from its centuries-old framework when all three branches recognize only a core set of inviolable rights, implicitly or explicitly discarding others. This criminal procedural line drawing takes place when the U.S. criminal justice system engages in law enforcement cooperation with foreign criminal justice systems in order to advance criminal cases.

This Article describes the two forms of this criminal procedural line drawing. The first is a “core criminal procedure” approach, rooted in fundamental rights, that arises in the …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin

Faculty Scholarship

This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s …

To Knock Or Not To Knock? No-Knock Warrants And Confrontational Policing, Brian Dolan

St. John's Law Review

(Excerpt)

This Note proceeds in three parts. Part I begins by explaining what no-knock warrants are and why they are used. Part I then addresses recent state legislative efforts to reform no-knock warrant use and argues that these efforts, however well-intentioned, are insufficient. Part I will also provide a brief history of how no-knock warrant use developed and gives an overview of the current status of state law regarding no-knock warrants. Part II argues that, contrary to the arguments of no-knock proponents, elimination of no-knock warrants and strict adherence to the knock-and-announce requirement is a more effective way to ensure …

A Warrant Requirement Resurgence? The Fourth Amendment In The Roberts Court, Benjamin J. Priester

St. John's Law Review

(Excerpt)

Over many years, the United States Supreme Court has developed an extensive body of precedent interpreting and enforcing the provisions of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures by law enforcement agents conducting criminal investigations. Commonly called the “warrant requirement,” one key component of this case law operates to deem some police investigatory techniques to be unconstitutional unless they are conducted pursuant to a search warrant issued in advance by a judge. The terms of the doctrine and its exceptions also authorize other investigatory actions as constitutionally permissible without a search warrant. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.