Fourth Amendment Commons^™

A Citizenship Model Of The Fourth Amendment, Danieli Evans

Articles

Fourth Amendment law is in disarray. In recent years, courts and scholars have questioned central aspects of Fourth Amendment doctrine—in particular, the reasonable expectations of privacy test that has governed since the 1960s. Scholars and judges have argued for abandoning this test and instead looking to private law (sub-constitutional rules governing private conduct, such as tort, property, and contract law) to determine Fourth Amendment protection.

At a moment when judges and scholars are questioning core aspects of Fourth Amendment doctrine, the time is ripe to reconsider the values Fourth Amendment law ought to serve. I advance a novel vision for …

Policing Agency Data Trusts, Barry Friedman

Northwestern University Law Review

Policing agencies are indiscriminately collecting, retaining, and using vast quantities of personal data from people who are suspected of no unlawful conduct whatsoever. This has caused expressions of concern or caution from many quarters, including—notably—the Director of National Intelligence (DNI). In a declassified report, the Office of the DNI stated that massive amounts of data are being collected “on nearly everyone that is of a type and level of sensitivity . . . that could be used to cause harm to an individual’s reputation, emotional well-being, or physical safety.”

This practice of universal data collection presents a conundrum. As many …

“I Like My Eighteenth Century Fresh”: Geofence Warrants, General Warrants, And The Evolving Fourth Amendment, Alexa M. Mascaró

University of Miami Law Review

Almost 250 years ago, our Founding Fathers fought to create a nation free from the confines of British imperial rule. Outrage over governmental intrusions enabled by suspicionless general warrants and writs of assistance galvanized an American polity determined to prevent the abuses that had come to define colonial life. The Fourth Amendment was enacted as a response to executive overreach, and it was deeply informed by the fraught history that led to its adoption—a history that is still used by courts today to define constitutional protections.

In the digital age, the rapid speed of technological innovation has created a precarious …

Time As A Constitutional Constraint: Resolving The Circuit Split On Prolonged Fourth Amendment, Ian Seabrooks

Washington Law Review Online

The Fourth Amendment of the U.S. Constitution states, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” Some circuits, like the Ninth and D.C. Circuits, have interpreted the Fourth Amendment’s reasonableness standard to apply beyond just the initial seizure of property but also to include the continued retention of the seized property. Other circuits, such as the First, Second, Sixth, Seventh, and Eleventh Circuits, have read the reasonableness standard more narrowly and interpreted this requirement to pertain only to the original seizure. …

Police Use Of Force: Barnes V. Felix And Moving Beyond The Moment Of Threat, Rebecca Aitchison

Roger Williams University Law Review

No abstract provided.

The Flock Above Us: The Unconstitutionality Of Automated License Plate Readers, Evan Degaitas

Roger Williams University Law Review

No abstract provided.

Justifying The Fourth Amendment, Daniel Epps

Vanderbilt Law Review

Why does the Fourth Amendment belong in the Constitution? This question is not whether society should impose some legal restraints on government searches and seizures. Rather, why should such protections reside in our national charter, superior to other forms of law and insulated from change via ordinary majoritarian political processes? Despite major disputes about the Fourth Amendment's content, Fourth Amendment theorists rarely ask this question. Almost all agree that the Fourth Amendment's constitutional protections are critically important-even if no one can agree exactly what those protections are.
This Article seeks a justification for the Fourth Amendment-the reason why search-and-seizure protections …

Back To The Fourth Amendment, Shea Daley Burdette

Marquette Law Review

Does the Fourth Amendment protect against governmental seizures of an individual’s digital property? The answer depends on whether government action constitutes a meaningful interference with digital property. Back to the Fourth Amendment considers the Founders’ intentional choice to use two separate words, search and seizure, to protect against governmental overreach. The Article advances an approach to the seizure analysis that protects against governmental seizures of digital property—by encouraging the Court to look at whether the government access meaningfully interfered with an owner’s right

to exclude, historically recognized as a possessory interest.

The Fourth Amendment was adopted in response to “reviled …

Standalone Frisks, Elias Neibart, Bobby Levine

Marquette Law Review

We all think we understand Terry v. Ohio. But we don’t. In fact, for decades, we’ve taken the wrong doctrinal lesson from Terry and its progeny.

Even though Terry discussed the constitutional standards surrounding “stop-and-frisks,” many of us have interpreted Terry as only permitting a “stop-and-then-a-frisk”—that is, a police officer is permitted to stop an individual on the suspicion that he is about to engage in criminal activity, and then, and only then, can that officer frisk the individual if he believes the suspect is armed and dangerous. But that’s not right. The Terry Court never said that. And …

Decoding The Path Of Constitutional Exclusion In Wisconsin Digital Evidence Cases, Amelia Boruch

Marquette Law Review

Criminal cases involving novel digital evidence warrants often raise constitutional and suppression issues. As these constitutional issues become harder to resolve, resolution of the suppression issues becomes easier to predict. Where officers obtain warrants to use cutting-edge investigative techniques in the absence of any legal authority, it is unlikely that evidence obtained pursuant to those warrants will be suppressed under the exclusionary rule. Even if the exclusionary rule were “triggered,” the good faith exception would likely apply to preclude suppression. Either way, the outcome is clear: suppression is unlikely.

Confidence in the outcome of these suppression issues has seemingly taken …

Justifying The Fourth Amendment, Daniel Epps

Scholarship@WashULaw

Why does the Fourth Amendment belong in the Constitution? This question is not whether society should impose some legal restraints on government searches and seizures. Rather, why should such protections reside in our national charter, superior to other forms of law and insulated from change via ordinary majoritarian political processes? Despite major disputes about the Fourth Amendment’s content, Fourth Amendment theorists rarely ask this question. Almost all agree that the Fourth Amendment’s constitutional protections are critically important—even if no one can agree exactly what those protections are.

This Article seeks a justification for the Fourth Amendment—the reason why search-and-seizure protections …

Fourth Amendment Rights In The Age Of Automated License Plate Recognition Cameras, Jessica L. Terkovich

Touro Law Review

Law enforcement technology has evolved to the point of being ever-present, especially in the form of automated license plate recognition cameras. This Article analyzes recent Fourth Amendment challenges to automated license plate recognition camera systems and developments in the technological landscape in the wake of seminal cases discussing the changing expectations of privacy as law enforcement technology evolves. The Article concludes that, as is, automated license plate recognition camera systems are not unconstitutional dragnets and do not perform warrantless searches, though they have potential to raise constitutional issues in the future.

Textualist Reasoning And The Open Fields Doctrine: A Survey Of State-Constitutional Decisions, Ariel Krogue

BYU Law Review

State constitutions can, and often do, provide more extensive individual rights than the Federal Constitution affords. When this occurs, state courts frequently cite textual differences between the Federal Constitution and their own state constitutions to explain their departures from federal norms. But do textual differences between the Federal Constitution and state constitutions actually explain why some states offer more constitutional protection than the federal government does? When it comes to the Fourth Amendment’s open fields doctrine, the answer is no.

This Note provides a fifty-state survey of state-constitutional search and seizure provisions; it also identifies those states that have rejected …

A Dangerous Challenge To The Constitutionality Of The Felon-In-Possession Statute: United States V. Bullock, Matthew Matherne

MC Law Review

In United States v. Bullock, Judge Carlton Reeves held that the federal felon-in-possession statute was unconstitutional as applied to Mr. Bullock. Although Mr. Bullock had been previously convicted of multiple violent felonies involving a firearm, including one that resulted in the death of an individual, Judge Reeves dismissed the charges because the government failed to establish a historical tradition of prohibiting felons from possessing firearms. Judge Reeves’ determination that § 922(g)(1) is unconstitutional as applied to Mr. Bullock is a decision that is not only “dangerous” to society, but it contradicts the historical tradition of firearm regulation in America. …

Tapping Out Of The Wiretap: Whether Consumers Have A Reasonable Expectation Of Privacy Against Internet Tracking Technology, Ashley Faranesh

Brooklyn Journal of Corporate, Financial & Commercial Law

The California Invasion of Privacy Act (CIPA), a statute born in an era of rotary phones and analog surveillance, is now at the heart of a legal crisis over internet tracking and privacy. Plaintiffs have increasingly weaponized the CIPA against online businesses that use standard Web-tracking tools, triggering a wave of litigation that stretches the statute far beyond its intended purpose. This Note argues that such application misreads the legislative intent behind the CIPA and risks destablizing core structures of the internet economy and financially crippling online businesses. Courts applying literal interpretations are undermining the CIPA’s purpose by conflating commonplace …

Death Before Breath: Courts Should Add De–Escalation And Proportionality To The Graham Factors, Nakyshia Fralin

University of Miami Race & Social Justice Law Review

This paper examines Barnes v. Felix, a case recently before the Supreme Court, through a comparative analysis of various circuit courts’ applications of the Graham factors in use–of–force evaluations. Beginning with a historical overview of policing, the paper revisits the factual background of the case before delving into the Fifth Circuit’s analysis, known as the Moment–of–Threat doctrine. It then contrasts this approach with the broader “totality of the circumstances” approach, highlighting the differing judicial interpretations. Building upon these established frameworks, the paper proposes two additional factors aimed at promoting human life and safety. By introducing these elements, the analysis seeks …

The Search Of A Search: Moderating Reverse Internet Keyword Warrants, Tui Rademaker

Northwestern University Law Review

Statistics show that Americans consistently turn to Google and other search engines to answer their most personal and private concerns, yet a new investigative tool risks law enforcement having vast discretion in the access of this data. With a keyword warrant, law enforcement can request from a search engine provider (usually Google) a list of probative search queries that users made over a specified time period. Such warrants are beginning to face legal challenges, and so far, courts seem reluctant to recognize the constitutional implications—instead leaving law enforcement with greater potential discretion over their use.

This Note assesses the constitutionality …

Truth Comes Before Reconciliation: An Exercise In American Truth-Telling, Hannah Fidler

Nebraska Journal on Advancing Justice

No abstract provided.

Roots In South Omaha: Navigating Identity, Culture, And Justice, Natalia Lopez

Nebraska Journal on Advancing Justice

No abstract provided.

Introduction, Nicholas L. Marti

Nebraska Journal on Advancing Justice

No abstract provided.

2025-26 Masthead (Volume 2, Issue 1), Njaj Editorial Board

Nebraska Journal on Advancing Justice

No abstract provided.

Investigating The Relationship Between Noun Classes And Plant Folk Taxonomy In Chasu Language Of Kilimanjaro Region In Tanzania, Peter Rabson Mziray

Journal of Humanities and Social Sciences

The current study investigates the relationship between noun classes and plant folk taxonomy in Chasu (G 22). The study focuses on two objectives: the first objective is to describe the plant folk taxonomy in Chasu and the second objective is to determine the relationship between noun classes and plant folk taxonomy in Chasu. Data were collected from rural villages in Same and Mwanga districts by using free listing, field interviews (jungle-walk-and-identify), and written texts containing Chasu plant names. The findings reveal that Chasu folk taxonomy reflects different ethnobotanical categories; including a unique beginner which is mmea/mimea ‘plant(s)’, and three life …

Living Property, Joseph William Singer

Seattle University Law Review

The Supreme Court has increasingly defined property rights that are per se exempt from regulation in the absence of compensation, most recently in Cedar Point Nursery v. Hassid (2021) and Tyler v. Hennepin County (2023). The Court claims that it can identify property rights that are categorically protected from regulation by reference to history, tradition, and precedent. Yet this approach is oddly ahistorical; it is inconsistent with the fact that property law changed dramatically over U.S. history, as well as varying tremendously among the states. It is also inconsistent with the historical context of the Founding era. At that time, …

Table Of Contents

Seattle University Law Review

Table of Contents

The Roots Of Credit Inequality, Andrea Freeman

Seattle University Law Review

Debt oppression began before the United States became a country. Settlers enslaved Africans and Indigenous people, treating them as property that they could buy and sell for their economic and personal benefit. When enslavement became illegal, new economic systems and laws that included sharecropping, Black Codes, and Jim Crow kept Black people in servitude. Laws that prohibited enslaved people from owning property or selling goods to white people evolved into restrictions on Black people’s occupations and market participation, both formal and informal. When Black entrepreneurs overcame these obstacles and built wealth within Black business enclaves, white people enforced their racist …

“A Plain Denial”: Reclaiming Equal Protection In American Juvenile Law, Addie C. Rolnick, David S. Tanenhaus, Justin Iverson, Danielle L. Silvestri

Seattle University Law Review

Juvenile courts are based on the premise that children are different from adults and should therefore be treated differently. Children may be treated more informally by courts, punished for different purposes, and brought before the court for different behaviors. Since In re Gault, the Supreme Court has been clear that there are limits to how different juvenile courts can be. Juveniles are entitled to many of the same procedural protections as adult criminal defendants, although the Court has preserved some procedural differences where it has determined that their benefit is outweighed by the need to preserve the informality, flexibility, …

Mandating Fluoride: A Constitutional Exercise Of Police Power, Anita Jahangiri

Seattle University Law Review

This Note addresses the ongoing debate over fluoridation: the regulation of fluoride levels in public water systems. Extensive research indicates fluoridation, when regulated at the recommended concentration, is both safe and highly effective in preventing dental caries. Better known as cavities, dental caries is a preventable yet widespread health issue that disproportionately affects low-income populations. Reducing dental health disparities among economic classes is a pressing public health issue. Fluoridation is not merely a policy option, but a critical, proven tool to address such disparities and uphold the collective welfare of Washingtonians. This Note focuses on fluoridation as a public health …

Neurodiversity In The Courtroom: Expanding Jury Service Accessibility Beyond Physical Disability, Samantha L. Mabe

Seattle University Law Review

The Americans with Disabilities Act has required equal access to jury service for decades; however, efforts to accommodate jurors with disabilities have been slow to develop beyond some minor accommodations for physical disabilities. While neurodivergent people frequently struggle to navigate a world catered toward neurotypical people, jury service remains inaccessible for many neurodivergent people who need accommodations to attend trial and engage in jury deliberations. If courts and advocates do not consider how to develop accommodations to secure the service of neurodivergent jurors, they will miss out on the unique skillsets that neurodivergent people can bring to resolving disputes.

Disabled …

Redefining Section 230 Immunity, Lucas Dini

Seattle University Law Review

Section 230 of the Communications Decency Act has provided broad immunity to online platforms for third-party content which was the foundation for the internet's growth. However, the rise in the use of artificial intelligence (AI) to produce algorithms to curate content to users of online services has blurred the line between being a passive host of third party content and active editorial control. This Note examines the legal, policy, and constitutional implications of applying Section 230 immunity to platforms that use AI to curate and promote third-party content. This analysis argues that algorithmic promotion of third-party content constitutes a platform's …

Overcrowding The System: Rethinking Juvenile Justice In Washington State, Mckenna White

Seattle University Law Review

The recent crisis at Green Hill School highlights the detrimental consequences of severe overcrowding in Washington State’s Juvenile Rehabilitation system—a problem exacerbated by the implementation of the JR to 25 legislation. This Note argues that the juvenile rehabilitation system, which is currently struggling to manage a wide age range of offenders, necessitates a fundamental rethinking of juvenile justice practices. By examining neurological research indicating continued brain development into the mid-twenties, along with the high prevalence of trauma among justice-involved youth, this Note proposes the creation of a dedicated third system of care within the Department of Children, Youth, and Families …