Criminal Procedure Commons^™

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron

Faculty Scholarship

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and …

American Bar Association Criminal Justice Standards On Law Enforcement Access To Third Party Records, Stephen E. Henderson

Faculty Books and Book Chapters

Drafted over the past six years and adopted by the American Bar Association (ABA) House of Delegates in February, 2012, these Criminal Justice Standards on Law Enforcement Access to Third Party Records provide much needed guidance to legislatures, courts, and administrative agencies having to decide how to regulate law enforcement access to existing records in the hands of third parties. It is the first framework of its kind, and it can do much to improve the current system of ad hoc protections in both state and federal systems. Decision makers are struggling to determine when to permit law enforcement access …

After United States V. Jones, After The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the Supreme Court unanimously rejected the proposition that the Government can surreptitiously electronically track vehicle location for an entire month without Fourth Amendment restraint. While the Court's three opinions leave much uncertain, in one perspective they fit nicely within a long string of cases in which the Court is cautiously developing new standards of Fourth Amendment protection, including a rejection of a strong third party doctrine. This Article develops that perspective and provides a cautiously optimistic view of where search and seizure protections may be headed.

More detail:

United States v. Jones, in which the …

“The Lady Of The House” Vs. A Man With A Gun: Applying Kyllo To Gun-Scanning Technology, Sean K. Driscoll

Catholic University Law Review

No abstract provided.

What Alex Kozinski And The Investigation Of Earl Bradley Teach About Searching And Seizing Computers And The Dangers Of Inevitable Discovery, Stephen E. Henderson

Faculty Articles

This paper tells two stories. One concerns the investigation of a Delaware physician named Earl B. Bradley that resulted in a conviction and sentence of fourteen consecutive life terms for the sexual abuse of children. The other concerns the computer problems, both judicial and extra-judicial, of Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. Though in a sense unrelated, they share lessons about the practicalities of computers and their search that are worth telling. As courts continue to struggle with how to cabin the searches of computers in order to minimize privacy intrusion …

Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen

Faculty Articles

A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of …

Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the High Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult …

Expectations Of Privacy In Social Media, Stephen E. Henderson

Faculty Articles

This article, which largely tracks my remarks at Mississippi College’s Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy …

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 …

Stripped Of Justification: The Eleventh Circuit's Abolition Of The Reasonable Suspicion Requirement For Booking Strip Searches In Prisons, Andrew A. Crampton

Cleveland State Law Review

Part II of this Note will provide an historical judicial background of the decisions leading up to the Powell v. Barrett decision. This section will first take a brief look at the history of the prison strip search before conducting an in-depth analysis at the Bell v. Wolfish decision, including the facts, rationale, and ambiguities of the decision. Next, this Note will examine the subsequent use of the Bell v. Wolfish decision by the federal courts in the context of strip searches conducted pursuant to facilities' booking policies, focusing on the rise of the “reasonable suspicion” standard. Part III of …

Big Bill Haywood's Revenge: The Original Intent Of The Exclusionary Rule, Milton Hirsch

St. Thomas Law Review

We have been given fair warning. In two recent cases, Hudson v. Michigan and Herring v. United States, the Supreme Court made clear its desire to phase out the Fourth Amendment exclusionary rule - that century-old ornament of constitutional jurisprudence pursuant to which evidence obtained in violation of a defendant's right to be free from unreasonable search and seizure will not be received in court. Justice Scalia, writing for a bare majority in Hudson, argued that the utility, if any, of the exclusionary rule has run its course; and that the rule itself is better supplanted by alternative means of …

Dangerously Sidestepping The Fourth Amendment: How Courts Are Allowing Third-Party Consent To Bypass Warrants For Searching Password-Protected Computer, David D. Thomas

Cleveland State Law Review

This Note sets forth that it is unacceptable for law enforcement to ignore the presence of passwords simply because they may not be immediately visible. Furthermore, it is contrary to the Fourth Amendment for law enforcement to rely on third parties who grant access to search the data without knowledge of the password to unlock the data. Principles hammered out over time for searches and seizures of physically locked objects can easily be transposed and extended to fit the virtual world while still providing people the protections of the Fourth Amendment.

‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson

Faculty Articles

If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as …

In The Trenches: Searches And The Misunderstood Common-Law History Of Suspicion And Probable Cause, Fabio Arcila

Scholarly Works

A detailed analysis of the common law during the Framers’ era, and of how it reflected the Fourth Amendment’s restrictions, shows that many judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This conclusion challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake …

Beyond The (Current) Fourth Amendment: Protecting Third-Party Information, Third Parties, And The Rest Of Us Too, Stephen E. Henderson

Faculty Articles

For at least thirty years the Supreme Court has adhered to its third-party doctrine in interpreting the Fourth Amendment, meaning that so far as a disclosing party is concerned, information in the hands of a third party receives no Fourth Amendment protection. The doctrine was controversial when adopted, has been the target of sustained criticism, and is the predominant reason that the Katz revolution has not been the revolution many hoped it would be. Some forty years after Katz the Court's search jurisprudence largely remains tied to property conceptions. As I have demonstrated elsewhere, however, the doctrine is not the …

Georgia V. Randolph: Whose Castle Is It, Anyway?, Lesley Mccall

University of Richmond Law Review

The Fourth Amendment protects individuals against unreasonable searches and seizures. Generally, a warrant is required to conduct a lawful search of a person's home, and a warrantless search is unreasonable per se. However, there are some exceptions to this requirement. A warrantless search is reasonable if police obtain voluntary consent from a person to search their home or effects. The Supreme Court has also recognized that a third party with common authority over a household may consent to a police search affecting an absent co-occupant. The Supreme Court of the United States recently addressed whether third party consent was effective …

The Technology Of Surveillance: Will The Supreme Court's Expectations Ever Resemble Society's?, Stephen Henderson

Other Faculty Publications

For law students studying criminal procedure—or at least for those cramming for the exam—it becomes a mantra: government conduct only implicates the Fourth Amendment protection against unreasonable searches if it invades a “reasonable expectation of privacy.” This is not the contemporary definition of the word “search,” nor was it the definition at the time of the founding. But, via a well-intentioned concurrence by Justice Harlan in the famous 1967 case of Katz v. United States, it became the Court’s definition.This lack of fealty to the English language left some questions. For example, is determining whether someone has a “reasonable expectation …

Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake

ExpressO

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that …

Detector Dogs And Probable Cause, Richard E. Myers

ExpressO

In this Article, Professor Myers argues that an alert, even by a well-trained dog with an excellent track record in the field, cannot by itself constitute probable cause to search. By using a Bayesian analysis of the value of dog alerts, he demonstrates that additional evidence is needed before probable cause exists. He shows why police won’t make changes to their use of dogs without outside prodding, and explores who might do so. The article makes some suggestions that, if adopted, will improve the courts’ approach to detector dog technologies, allowing them to better strike the balance between the competing …

Learning From All Fifty States: How To Apply The Fourth Amendment And Its State Analogs To Protect Third Party Information From Unreasonable Search, Stephen E. Henderson

Faculty Articles

We are all aware of, and many commentators are critical of, the Supreme Court's third-party doctrine, under which information provided to third parties receives no Fourth Amendment protection. This constitutional void becomes increasingly important as technology and social norms dictate that increasing amounts of disparate information are available to third parties. But we are not solely dependent upon the Federal Constitution. We may have more constitutional protection as citizens of states, each of which has a constitutional cognate or analog to the Federal Fourth Amendment. As Justice Brennan urged in a famous 1977 article, those provisions should be interpreted to …

Nothing New Under The Sun? A Technologically Rational Doctrine Of Fourth Amendment Search, Stephen E. Henderson

Faculty Articles

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Yet as interpreted by the United States Supreme Court, the Amendment places no restriction on police combing through financial records; telephone, e-mail and website transactional records; or garbage left for collection. Indeed there is no protection for any information knowingly provided to a third party, because the provider is said to retain no reasonable expectation of privacy in that information. As technology dictates that more and more of our personal lives are available to anyone equipped to receive them, and as social norms dictate that more and …

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.

The Coherence Of Orthodox Fourth Amendment Jurisprudence, Samuel C. Rickless

ExpressO

In the legal academy it is widely believed that the U.S. Supreme Court's orthodox (post-Katz, pre-Houghton) fourth amendment jurisprudence is theoretically incoherent. In particular, the Court has been criticized (on doctrinal and textual grounds) for accepting (i) Justice Harlan's definition of a "search" as an infringement of a subjective expectation of privacy that society is prepared to recognize as reasonable, (ii) the Warrant Requirement and Probable Cause Requirement (according to which searches and seizures without a warrant or probable cause are presumptively unreasonable), and (iii) the Exclusionary Rule (according to which any evidence obtained in violation of a person’s fourth …

A Deadly Cure: The Supreme Court's Dangerous Medicine In Ferguson V. City Of Charleston, George M. Dery Iii

Oklahoma Law Review

No abstract provided.

Vehicle Searches – The Automobile Exception: The Constitutional Ride From Carroll V. United States To Wyoming V. Houghton, Martin L. O'Connor

Touro Law Review

No abstract provided.

Search And Seizure, Court Of Appeals: People V. Funches

Touro Law Review

No abstract provided.

Search And Seizure, Supreme Court, Appellate Division, First Department: People V. Smith

Touro Law Review

No abstract provided.

Search And Seizure, Supreme Court, Appellate Division, Second Department: People V. Hichez

Touro Law Review

No abstract provided.

Search And Seizure, Supreme Court, New York County: People V. Rodgers

Touro Law Review

No abstract provided.

Search And Seizure, Court Of Appeals: People V. Turriago

Touro Law Review

No abstract provided.