Criminal Procedure Commons^™

The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend …

The Need To Overrule Mapp V. Ohio, William T. Pizzi

Publications

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious …

How United States V. Jones Can Restore Our Faith In The Fourth Amendment, Erica Goldberg

School of Law Faculty Publications

United States v. Jones, issued in January of this year, is a landmark case that has the potential to restore a property-based interpretation of the Fourth Amendment to prominence. In 1967, the Supreme Court abandoned its previous Fourth Amendment framework, which had viewed the prohibition on unreasonable searches in light of property and trespass laws, and replaced it with a rule protecting the public’s reasonable expectations of privacy. Although the Court may have intended this reasonable expectations test to provide more protection than a test rooted in property law, the new test in fact made the Justices’ subjective views about …

Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran

Articles

Back when there was a Soviet Union, foreign intelligence officers would anxiously await the May Day parade in Moscow to see who would be standing next to the chairman of the Communist Party and who would be missing from the reviewing platform altogether. Since the Soviet government and the statecontrolled press published very little about what was really going on in the halls of state power, this was considered the most reliable way to determine who was in or out of favor and, by extension, how the domestic and foreign policies of the world's second most powerful country were likely …

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 …

Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe

Scholarly Articles in Law Reviews & Journals

his is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Crime Mapping And The Fourth Amendment: Redrawing 'High Crime Areas', Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

This article addresses how “crime mapping” technology has the potential to reshape Fourth Amendment protections in designated “high crime areas.” In the past few years, the ability of police administrators to identify and officially label “high crime areas” has rapidly expanded. Geographic Information Systems (GIS) and crime mapping technology has simplified the collection and analysis of crime statistics. These GIS crime mapping technologies can produce almost perfect information about the level, rate, and geographic location of crimes in any given area.While effective policing tools, these technologies have constitutional consequences that are only now being considered. Under existing Supreme Court precedent, …

The Faces Of Student Cell Phone Regulations And The Implications Of Three Clauses Of The Federal Constitution, Joseph O. Oluwole, William Visotsky

Cardozo Public Law, Policy & Ethics Journal

The article examines the constitutionality of school district regulations on student cell phones, focusing on the Due Process Clause, the Free Speech Clause, and the Fourth Amendment. It argues that while schools have the authority to regulate cell phones to maintain an educational environment, such regulations must comply with legal standards to avoid infringing on students' rights. The analysis concludes that schools can enforce cell phone policies but must adhere to constitutional protections, particularly the Tinker test for speech and the T.L.O. test for searches.

Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

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

University of Richmond Law Review

In this essay, I contend that when evaluating the constitutionality of enhanced surveillance devices, the existing test for assessing the occurrence of a Fourth Amendment search should be modified. Specifically, I suggest that intrusiveness should be unambiguously adopted by the Court as the benchmark for assessing and defining the existence of a search under the Fourth Amendment. Moreover, intrusiveness should be clearly defined to require an examination of two factors: the functionality of a challenged form of surveillance and the potential for disclosure created by the device.

"You Crossed The Fog Line!"—Kansas, Pretext, And The Fourth Amendment, Melanie D. Wilson

Scholarly Articles

In Whren, the United States Supreme Court sanctioned pretextual traffic stops. In practice the holding of Whren condones police investigations that target certain suspect classes of people, like Hispanics, for increased police scrutiny. In permitting pretextual stops, the Court ignored the risk that such practices will encourage police to distort the truth, overlooked the cost of under-enforcement of the laws, and ignored the consequences to the criminal justice system of race and ethnicity based discrimination.

Kansas law exacerbates these risks by making fog-line stops a model for protecting ulterior motives from a sifting judicial inquiry. In Kansas, it makes …

Improbable Cause: A Case For Judging Police By A More Majestic Standard, Melanie D. Wilson

Scholarly Articles

Several prior studies have demonstrated that police sometimes, if not often, lie in an attempt to avoid the effects of the exclusionary rule. This study of federal trial judges in the District of Kansas suggests that judges may be fostering this police perjury. Judges may unwittingly encourage police perjury because they subconsciously recognize that acknowledging perjury will probably result in release of a culpable defendant. Judges may also permit perjury because they cannot determine when police are lying. In either case, the Supreme Court majority's conception of the exclusionary rule naturally leads trial judges to deny defendants' motions to suppress. …

The Spot Program: Hello Racial Profiling, Goodbye Fourth Amendment?, Deborah L. Meyer

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Photo Enforcement Programs: Are They Permissible Under The United States Constitution?, 43 J. Marshall L. Rev. 463 (2010), Paul Mcnaughton

UIC Law Review

No abstract provided.

Gps Monitoring May Cause Orwell To Turn In His Grave, But Will It Escape Constitutional Challenges? A Look At Gps Monitoring Of Domestic Violence Offenders In Illinois, 43 J. Marshall L. Rev. 845 (2010), Mary Ann Scholl

UIC Law Review

No abstract provided.

Mapp V. Ohio's Unsung Hero: The Suppression Hearing As Morality Play, Scott E. Sundby

Articles

No abstract provided.

How Far Can The Automobile Exception Go? How Searches Of Computers And Similar Devices Push It To The Limit, 43 J. Marshall L. Rev. 1119 (2010), Andrew Wrona

UIC Law Review

No abstract provided.

Veteran Police Officers And Three-Dollar Steaks: The Subjective/Objective Dimensions Of Probable Cause And Reasonable Suspicion, Kit Kinports

Faculty Scholarship

This Article addresses two issues surrounding probable cause and reasonable suspicion that test the line between subjective and objective standards in Fourth Amendment jurisprudence: the extent to which a particular police officer’s training and experience ought to be considered in measuring probable cause and reasonable suspicion, and the relevance of the officer’s subjective beliefs about the presence of a weapon in assessing the reasonable suspicion required to justify a frisk. Although both questions have split the lower courts and remain unresolved by the Supreme Court, the majority of courts treat them inconsistently, recognizing the importance of an officer’s training, experience, …

Mapp V. Ohio Revisited: A Law Clerk's Diary, Polly J. Price

Faculty Articles

The 1960 Supreme Court Term laid the groundwork for the subsequent revolution in the relationship between state and federal law accomplished by the Supreme Court under Chief Justice Earl Warren. The "most famous search and seizure case in American history" - Mapp v. Ohio - would be decided that Term. Mapp held that the Fourth Amendment's protection against "unreasonable searches and seizures" required the exclusion of evidence found through an illegal search by state and local police officers, extending to the states a rule that had previously applied only to federal law enforcement. Mapp became a pivotal chapter in the …

Substitution Effects: A Problematic Justification For The Third-Party Doctrine Of The Fourth Amendment, Blake Ellis Reid

Publications

In the past half-century, the Supreme Court has crafted a vein of jurisprudence virtually eliminating Fourth Amendment protection in information turned over to third parties - regardless of any subjective expectation of privacy or confidentiality in the information on the part of the revealer. This so-called “third-party” doctrine of the Fourth Amendment has become increasingly controversial in light of the growing societal reliance on the Internet in the United States, where nearly every transaction requires a user to turn information over to at least one third party: the Internet service provider (“ISP”).

Citing the scholarship that has criticized the third-party …

Suspicion And The Protection Of Fourth Amendment Values, Fabio Arcila Jr.

Scholarly Works

Suspicion is perhaps the core foundational principle through which we seek to protect and vindicate Fourth Amendment values. Fourth Amendment law could not be clearer, and repeats over and over again, that it proceeds from a presumptive suspicion requirement. We are all so familiar with that proposition that we can easily incant it: a governmental search is presumptively unconstitutional unless supported by some threshold of prior suspicion. Though suspicion is thus a hallmark of Fourth Amendment black letter law, I come to critique it. I critique it because the presumptive suspicion requirement's provenance is historically questionable, both as a matter …

Mapp V. Ohio'S Unsung Hero: The Suppression Hearing As Morality Play, Scott E. Sundby

Chicago-Kent Law Review

The exclusionary rule is back under the judicial magnifying glass. Recent opinions, most notably by Justice Scalia, have sparked speculation that the Roberts Court is inclined to overrule Mapp v. Ohio and send Fourth Amendment disputes back to the realm of civil suits and police disciplinary actions. As the Court's rulings have made clear, any reevaluation of the exclusionary rule's future will be conducted under the now familiar rubric of whether the rule's "benefit" of deterring police misbehavior outweighs the "cost" of lost evidence and convictions.

This essay argues that if any such reevaluation does occur, the Court must take …

The Irrelevancy Of The Fourth Amendment In The Roberts Court, Thomas K. Clancy

Chicago-Kent Law Review

Since John Roberts Jr. became Chief Justice of the Supreme Court, there has been a measurable decline in the number of cases addressing Fourth Amendment questions. This article examines the reasons for that decline and predicts the substantial elimination of Fourth Amendment litigation in the Roberts Court. The prediction is based on several premises, including the lack of interest of the Justices on the Court concerning search and seizures principles and two significant recent cases, Pearson v. Callahan and United States v. Herring, which presage a significant decline in the number of lower court cases addressing the merits of …

Fourth Amendment Federalism And The Silencing Of The American Poor, Andrew E. Taslitz

Chicago-Kent Law Review

In Virginia v. Moore, police officers searched Moore incident to an arrest for a minor traffic infraction for which Virginia statutory law in fact prohibited arrest. The officers found cocaine on Moore's person, arresting him for that crime too. The United States Supreme Court ultimately found that the arrest for the traffic infraction and the subsequent search were valid under the federal Constitution's Fourth Amendment. Central to the Court's reasoning was its insistence that the state statute was irrelevant. Any contrary conclusion, explained the Court, would wrongly make the Fourth Amendment's meaning vary from place to place. Professor Taslitz …

Replacing The Exclusionary Rule: Fourth Amendment Violations As Direct Criminal Contempt, Ronald J. Rychlak

Chicago-Kent Law Review

The exclusionary rule, which bars from admission evidence obtained in violation of the Fourth Amendment's prohibition of unreasonable searches and seizures, is a bedrock of American law. It is highly controversial, but there seems to be no equally effective way to protect citizens' rights. This paper proposes that an admissibility standard be adopted that is in keeping with virtually every jurisdiction around the world other than the United States. Thus, before ruling evidence inadmissible, the court would consider the level of the constitutional violation, the seriousness of the crime, whether the violation casts substantial doubt on the reliability of the …

The Fourth Amendment, The Exclusionary Rule, And The Roberts Court: Normative And Empirical Dimensions Of The Over-Deterrence Hypothesis, Donald Dripps

Chicago-Kent Law Review

This essay engages in the risky business of predicting future Supreme Court developments. In the first part, I analyze the evidence suggesting that the Roberts Court might abolish the exclusionary rule. The critique of exclusion in Hudson v. Michigan is both less and more probative than appears at first blush. Part II turns to some less obvious evidence pointing in the direction of retaining the exclusionary rule. First, abolition of the exclusionary rule is inconsistent with the Hudson majority's apparent content with prevailing police behavior. Second, abolition of the exclusionary rule would curtail the power of the Supreme Court. Part …

Georgia V. Randolph, The Red-Headed Stepchild Of An Ugly Family: Why Third Party Consent Search Doctrine Is An Unfortunate Fourth Amendment Development That Should Be Restrained, Aubrey H. Brown

William & Mary Bill of Rights Journal

No abstract provided.

Suspicionless Laptop Searches Under The Border Search Doctrine: The Fourth Amendment Exception That Swallows Your Laptop, Ari B. Fontecchio

Cardozo Law Review

No abstract provided.

Orwell’S Vision: Video And The Future Of Civil Rights Enforcement, Howard M. Wasserman

Faculty Publications

No abstract provided.

Vagrants In Volvos: Ending Pretextual Traffic Stops And Consent Searches Of Vehicles In Illinois, 40 Loy. U. Chi. L.J. 745 (2009), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.