Fourth Amendment Commons^™

Fourth Amendment Privacy In Public: A Fundamental Theory With Application To Location Tracking, Jordan Wallace-Wolf

Law Faculty Scholarship

When we walk out our front door, we are in public and other people may look at us. But intuitively, we don’t open ourselves up to unlimited scrutiny just by going outside. We retain some privacy, even in public. What is the source of this residual public-privacy, and how should the law recognize it without degrading the open character of public space?

The answer given by commentators, and most recently by the Supreme Court in Carpenter v. U.S., comes in the form of two related claims. The first is the chilling theory of the Fourth Amendment. According to this idea, …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

Faculty Scholarship

Abstract

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement’s presence squarely in the racist history of policing and school policing, the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools …

State V. Depina, 245 A.3d 1222 (R.I. 2021), Christopher Minicucci

Roger Williams University Law Review

No abstract provided.

Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti

Articles by Maurer Faculty

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.

Such an approach presupposes that property law is not itself circular. If …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A New Report Of Entick V. Carrington (1765), Christian R. Burset, T. T. Arvind

Journal Articles

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation. For more than 250 years, judges and commentators have read that case for guidance about the rule of law, executive authority, and the original meaning of the Fourth and Fifth Amendments. But we have been reading a flawed version. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, and how this new discovery challenges prevailing assumptions about …

Keynote Address, Christopher J. Buccafusco, Jeff Kosseff

Cardozo Arts & Entertainment Law Journal

The article discusses the evolution and impact of Section 230 of the Communications Decency Act, highlighting its role in shaping internet speech and liability. It traces the law's origins, key court rulings, and current debates about its future. The speaker emphasizes the need for informed discussion to address concerns about harmful content, platform moderation, and free speech.

In Celebration Of Dissents (And Lengthy Textbooks): How Digital Became Different For The Fourth Amendment And Why It Is Time For A Real Warrant Default, Stephen E. Henderson

Faculty Articles

The last decade has brought tremendous change to the Fourth Amendment, finally resulting in a ‘digital is different’ norm. We stand at an inflection point between a monolithic, analog past and a murky future of yet-unarticulated constitutional digital policing rules. It is a good time, then, to reflect upon how we came to be here and where we ought to go. This Essay first looks back to a monumental, majestic dissent: that of Justice Louis Brandeis in the 1928 decision of Olmstead v. United States. Every American, and especially every law student, ought to know that opinion, and judges …

Hslda Concerned With More Than Just Homeschool, Griffin S. Kelly

Capstones

My capstone is just one piece of a greater investigation into homeschooling in America. For my piece, my colleague Keith Medelis reported on the Home School Legal Defense Association, a premiere homeschooling advocacy group that provides legal advice to its members and lobbies against any regulations they find restrictive to the homeschooling process.

Our goal was to see exactly what their mission is because beyond homeschooling, the HSLDA advocates for small government, religious (mainly Christian) freedoms and protecting its members from child protective services.

A review of 84 court cases revealed that the HSLDA has occasionally engaged in legal battles …

Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane

Brooklyn Journal of International Law

The United States (US) and United Kingdom (UK) will soon bring into force a new international law enforcement data sharing ‘CLOUD Act agreement’ (US-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act). These agreements enable law enforcement in one state to directly request data from service providers based in the other state. They respond to long-standing concerns with the main mechanism for obtaining overseas data, mutual legal assistance (MLA). The US and UK claim the US-UK Agreement will significantly speed up data access relative to MLA while “respecting privacy and …

Geofence Warrants: Geolocating The Fourth Amendment, A. Reed Mcleod

William & Mary Bill of Rights Journal

This Note begins by focusing on the technology and procedure of geofence warrants in Part I. Because an understanding of both the technology and procedure is ultimately required to make any headway in later legal analysis, this step is necessary. The heart of the legal analysis is undertaken in Parts II and III.

In Part II, this Note argues that law enforcement requests for location data require a warrant: either because of the expectation of privacy in location data proposed by cases such as Carpenter v. United States or because some courts have found that Carpenter's holding must mean …

Making The Impractical, Practical: A Modest And Overdue Approach To Reforming Fourth Amendment Consent Search Doctrine, Augustine P. Manga

William & Mary Journal of Race, Gender, and Social Justice

At some point in your life, you may have a personal encounter with a police officer. During that moment, you may feel utterly powerless, especially if you do not know your rights. One important right that police are not required to inform people of is their right to deny an officer’s request to search their property. Forty-eight years ago, the Supreme Court made its position clear in Schneckloth v. Bustamonte that requiring law enforcement to provide citizens with this warning would be “thoroughly impractical.” Since then, the relationship between law enforcement and society—especially communities of color—has gradually deteriorated, and states …

"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen J. Pita Loor

William & Mary Journal of Race, Gender, and Social Justice

The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment …

Disrespect As The Essence Of Constitutional Right Violations, R. George Wright

Cardozo Journal of Equal Rights & Social Justice

The article posits that disrespect is a fundamental concept in understanding constitutional rights violations. It argues that the underlying logic and limits of constitutional rights are rooted in considerations of respect and disrespect, particularly respect for persons. The author contends that both intentional and unintentional disrespect can lead to constitutional violations, affecting various rights such as equal protection, free speech, and due process. The analysis draws on philosophical frameworks, including those of Kant and Rawls, to emphasize the centrality of respect in constitutional jurisprudence.

Restoring Causality In Attenuation: Establishing The Breadth Of A Fourth Amendment Violation, Bryan H. Ward

West Virginia Law Review

When the police violate a suspect’s Fourth Amendment rights, what often follows is the discovery of incriminating evidence. Sometimes the evidence is discovered directly after the Fourth Amendment violation. In other situations, the evidence comes by a more indirect route and may occur long after the original Fourth Amendment violation. Courts struggle when trying to decide if the discovery of this indirectly obtained evidence was caused by the police misconduct. This causal question is important because causality acts as a limiting principle when deciding when to apply the exclusionary rule. A basic view of the exclusionary rule suggests that evidence …

The Second Amendment In A Carceral State, Alice Ristroph

Northwestern University Law Review

No abstract provided.

Antiracism In Action, Daniel Harawa, Brandon Hasbrouck

Washington and Lee Law Review

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system …

(Re)Framing Race In Civil Rights Lawyering, Anthony V. Alfieri, Angela Onwuachi-Willig

Articles

This Review examines the significance of Henry Louis Gates, Jr.'s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation's legal system and for the regulation of race in the legal profession, especially in the everyday labor of civil-rights and poverty lawyers, prosecutors, and public defenders. Surprisingly, few have explored the relevance of the racial narratives distilled by Gates in Stony the Roa - the images, stereotypes, and tropes that Whites constructed of Blacks to deepen and ensure the life and legacy of white supremacy-to the practice …

Fitbit Data And The Fourth Amendment: Why The Collection Of Data From A Fitbit Constitutes A Search And Should Require A Warrant In Light Of Carpenter V. United States, Alxis Rodis

William & Mary Bill of Rights Journal

No abstract provided.

Bitcoin Searches And Preserving The Third-Party Doctrine, Christine A. Cortez

St. Mary's Law Journal

Abstract forthcoming.

Searches By Environmental Protection Agencies: When Is A Warrant Necessary?, David Sparks

Journal of Natural Resources & Environmental Law

No abstract provided.

Divided Court Issues Bright-Line Ruling On Fourth Amendment Seizures, Jeffrey Bellin

Popular Media

No abstract provided.

Preview—United States V. Cooley: What Will Happen To The Thinnest Blue Line?, Jo J. Phippin

Public Land & Resources Law Review

The Supreme Court of the United States ("Supreme Court") will hear oral arguments in this matter on Tuesday, March 23, 2021. This case presents the narrow issue of whether a tribal police officer has the authority to investigate and detain a non-Indian on a public right-of-way within a reservation for a suspected violation of state or federal law. The lower courts, holding that tribes have no such authority, granted James Cooley’s motion to suppress evidence. The Supreme Court must decide whether the lower courts erred in so deciding. While the issue before the Supreme Court is itself narrow, it has …

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 …

Can I Have Some Privacy?: A Look Into The Unfortunate Truth Of Pregnancy Tests Throughout Sports And The Negative Impact On Female Athletes, Hannah Rogers

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Seattle University Law Review

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

Let's Make Some "Scents" Of Our Fourth Amendment Rights: The Discriminatory Truths Behind Using The Mere Smell Of Burnt Marijuana As Probable Cause To Search A Vehicle, Alessandra Dumenigo

St. Thomas Law Review

This Comment addresses the negative effects that have resulted and will continue to result if police officers are encouraged by jurisprudence to conduct a warrantless search of an entire vehicle based on the smell of burnt marijuana. Warrantless searches of an entire vehicle based merely on the smell of burnt marijuana grant officers unlimited power that will likely result in police misconduct, an increase in racially profiled traffic stops, and a distrust between police officers and the Black community amid the nationwide outrage over the death of George Floyd. Part II of this Comment discusses the history of the Fourth …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …