Fourth Amendment Commons^™

Policing, Danger Narratives, And Routine Traffic Stops, Jordan Blair Woods

Michigan Law Review

This Article presents findings from the largest and most comprehensive study to date on violence against the police during traffic stops. Every year, police officers conduct tens of millions of traffic stops. Many of these stops are entirely unremarkable—so much so that they may be fairly described as routine. Nonetheless, the narrative that routine traffic stops are fraught with grave and unpredictable danger to the police permeates police training and animates Fourth Amendment doctrine. This Article challenges this dominant danger narrative and its centrality within key institutions that regulate the police.

The presented study is the first to offer an …

The Exclusionary Rule In The Age Of Blue Data, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

In Herring v. United States, Chief Justice John Roberts reframed the Supreme Court’s understanding of the exclusionary rule: “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” The open question remains: how can defendants demonstrate sufficient recurring or systemic negligence to warrant exclusion? The Supreme Court has never answered the question, although the absence of systemic or recurring problems has figured prominently in two recent exclusionary rule decisions. Without the ability to document recurring failures, or patterns of police misconduct, courts can dismiss …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

Secret Searches: The Sca's Standing Conundrum, Aviv S. Halpern

Michigan Law Review

The Stored Communications Act (“SCA”) arms federal law enforcement agencies with the ability to use a special type of warrant to access users’ electronically stored communications. In some circumstances, SCA warrants can require service providers to bundle and produce a user’s electronically stored communications without ever disclosing the existence of the warrant to the individual user until charges are brought. Users that are charged will ultimately receive notice of the search after the fact through their legal proceedings. Users that are never charged, however, may never know that their communications were obtained and searched. This practice effectively makes the provisions …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

Immigration Detainers, Local Discretion, And State Law's Historical Constraints, Kate Evans

Faculty Scholarship

No abstract provided.

Perceptions, Knowledge And Experiences Among Police Officers: Traffic Stops, Vehicle Searches And K-9 Involvement, Daniel Ozment

Master of Science in Criminal Justice Theses & (Pre-2016) Policy Research Projects

This survey study explores the perceptions, knowledge and experiences of police “line” officers concerning Fourth Amendment search and seizure norms and applications during traffic stops and vehicles searches, in particular police use of canine units following the landmark United States Supreme Court decision of Rodriguez v. United States. In particular, the study examines issues surrounding the length and scope of a traffic stop by police, including stops with canine involvement. Finally, the study includes an analysis of how federal courts of appeal and Georgia courts have interpreted the Rodriguez decision.

The Stored Communications Act: Property Law Enforcement Tool Or Instrument Of Oppression?, Raymond Boyce

West Virginia Law Review

No abstract provided.

Chilling: The Constitutional Implications Of Body-Worn Cameras And Facial Recognition Technology At Public Protests, Julian R. Murphy

Washington and Lee Law Review Online

In recent years body-worn cameras have been championed by community groups, scholars, and the courts as a potential check on police misconduct. Such has been the enthusiasm for body-worn cameras that, in a relatively short time, they have been rolled out to police departments across the country. Perhaps because of the optimism surrounding these devices there has been little consideration of the Fourth Amendment issues they pose, especially when they are coupled with facial recognition technology (FRT). There is one particular context in which police use of FRT equipped body-worn cameras is especially concerning: public protests. This Comment constitutes the …

Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell

Georgia State University Law Review

The well-publicized deaths of several African-Americans—Tamir Rice, Philando Castile, and Alton Sterling among others—at the hands of police stem from tragic interactions predicated upon well-understood practices analyzed by police scholars since the 1950s. The symbolic assailant, a construct created by police scholar Jerome Skolnick in the mid-1960s to identify persons whose behavior and characteristics the police view as threatening, is especially relevant to contemporary policing. This Article explores the societal roots of the creation of a Black symbolic assailant in contemporary American policing.

The construction of African-American men as symbolic assailants is one of the most important factors characterizing police …

Policing, Technology, And Doctrinal Assists, Bennett Capers

Florida Law Review

Sounding the alarm about technology, policing, and privacy has become an almost daily occurrence. We are told that the government’s use of technology as a surveillance tool is an “insidious assault on our freedom.” That it is “nearly impossible to live today without generating thousands of records about what we watch, read, buy and do—and the government has access to them.” The message is clear. Big Brother is watching. And we should be afraid.

But the police use of technology, or what this Article terms “techno-policing,” does not have to be dystopian. This Article challenges conventional thinking and offers an …

Bulk Biometric Metadata Collection, Margaret Hu

Scholarly Articles

Smart police body cameras and smart glasses worn by law enforcement increasingly reflect state-of-the-art surveillance technology, such as the integration of live-streaming video with facial recognition and artificial intelligence tools, including automated analytics. This Article explores how these emerging cybersurveillance technologies risk the potential for bulk biometric metadata collection. Such collection is likely to fall outside the scope of the types of bulk metadata collection protections regulated by the USA FREEDOM Act of 2015. The USA FREEDOM Act was intended to bring the practice of bulk telephony metadata collection conducted by the National Security Agency (“NSA”) under tighter regulation. In …

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

Faculty Articles

We finally have a federal ‘test case.’ In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age. The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher. This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious. As for ambition, the Court …

Fourth Amendment Anxiety, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information can be cause for “anxiety,” meriting constitutional protection, even if subsequent uses of the information are tightly restricted. This change is significant. While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing. Beyond offering a careful reading of Birchfield, this Article has two goals. First, …

A Genealogy Of Programmatic Stop And Frisk: A Discourse-To-Practice-Circuit, Frank Rudy Cooper

Scholarly Works

President Trump has called for increased use of the recently predominant policing methodology known as programmatic stop and frisk. This Article contributes to the field by identifying, defining, and discussing five key components of the practice: (1) administratively dictated (2) pervasive Terry v. Ohio stops and frisks (3) aimed at crime prevention by means of (4) data-enhanced profiles of suspects that (5) target young racial minority men. Whereas some scholars see programmatic stop and frisk as solely the product of individual police officer bias, this Article argues for understanding how we arrived at specific police practices by analyzing three levels …

Katz V. United States: Back To The Future?, Michael Vitiello

University of Richmond Law Review

No abstract provided.

Policing Narrative, Tal Kastner

Scholarly Works

Counter narrative, a story that calls attention to and rebuts the presumptions of a dominant narrative framework, functions as an essential tool to reshape the bounds of the law. It has the potential to shape the collective notion of what constitutes legal authority. Black Lives Matter offers a counter narrative that challenges the characterization of the shared public space, among other aspects of contemporary society, as the space of law. Using the concept of necropower--the mobilization and prioritization of the state's power to kill--I analyze the contested physical and conceptual space of law exposed by the counter narrative of Black …

Resolving The Circuit Split Over Consent Based Searches In Shared Living Spaces, Christopher Grimaldi

Cardozo International & Comparative Law Review

The note argues that the police, not citizens, should bear the responsibility of resolving ambiguities in consent to search cases under the Fourth Amendment. It advocates for a solution that aligns with Supreme Court precedent, particularly Rodriguez and Salinas-Cano, to ensure constitutional protections while maintaining efficient law enforcement. The proposed approach emphasizes the importance of police inquiry to clarify authority over jointly used property, balancing individual privacy rights with practical law enforcement needs.

Feeding The Machine: Policing, Crime Data, & Algorithms, Elizabeth E. Joh

William & Mary Bill of Rights Journal

No abstract provided.

The Next Step In Civil Asset Forfeiture Reform: Passing The Civil Asset Forfeiture Reform Act Of 2014, Daniel Reed

Catholic University Law Review

Civil asset forfeiture is an operation of legal fiction that enables the government to seize property without an underlying conviction of the property owner. Federal authorities bring thousands of civil asset forfeiture cases annually, often against the property of owners who have not been charged with a crime. Such cases can result in unjust outcomes and denials of due process to property owners. To address this controversy, Representative Tim Walberg proposed several reforms to federal civil asset forfeiture laws known as the Civil Asset Forfeiture Reform Act of 2014 (CAFRA 2014).

After discussing the history of civil asset forfeiture, this …

Police In America: Ensuring Accountability And Mitigating Racial Bias Feat. Paul Butler

Northwestern Journal of Law & Social Policy

No abstract provided.

Litigating Police Misconduct: Does The Litigation Process Matter? Does It Work?

Northwestern Journal of Law & Social Policy

No abstract provided.

Omg - Not Something To Lol About: The Unintended Results Of Disallowing Warrantless Searches Of Cell Phones Incident To A Lawful Arrest Comments, Parker Jenkins

Brigham Young University Journal of Public Law

No abstract provided.

I Am Not Law Enforcement! Why The Special Needs Exception To The Fourth Amendment Should Apply To Caseworkers Investigating Allegations Of Child Abuse, Lauren Kobrick

Cardozo Law Review

The note examines the application of the Fourth Amendment's special needs doctrine in child abuse investigations, advocating for the adoption of a primary purpose test to determine the doctrine's applicability. It critiques the inconsistent approaches across circuits and proposes this test to clarify when warrantless searches and seizures by caseworkers are constitutional, ensuring a balance between child protection and Fourth Amendment protections.

Rethinking The Fourth Amendment In The Age Of Supercomputers, Artificial Intelligence, And Robots, Melanie Reid

West Virginia Law Review

In an era of diminishing privacy, the Internet of Things ("loT") has become a consensual and inadvertent tool that undermines privacy protection. The loT, really systems of networks connected to each other by the Internet or other radio-type device, creates consensual mass self-surveillance in such domains as fitness and the Fitbit, health care and heart monitors, "smart" houses and cars, and even "smart" cities. The multiple networks also have created a degree of interconnectivity that has opened up a fire hose of information for companies and governments alike, as well as making it virtually insuperable to live "off the grid" …

Civil Liberty Or National Security: The Battle Over Iphone Encryption, Karen Lowell

Georgia State University Law Review

On June 5, 2013, Edward Snowden released what would be the first of many documents exposing the vast breadth of electronic surveillance the Federal Bureau of Investigation (FBI) and the National Security Agency (NSA) had been conducting on millions of United States citizens. Although the federal agencies had legal authority under the Foreign Intelligence Surveillance Act (FISA) to collect metadata from companies such as Verizon, many Americans considered this data collection to be a massive invasion of privacy.

Equipped with the knowledge of sweeping domestic surveillance programs, citizens and technology firms fighting for strong privacy and security protection, have started …

Knock And Talk No More, Jamesa J. Drake

Maine Law Review

The Supreme Court has set out a roadmap for challenging one of the most common and insidious police tactics used today: the knock-and-talk. The path is short and clear and it leads to the inescapable conclusion that the knock-and-talk—as it is actually employed in practice—is unconstitutional. Although the Court has yet to squarely consider the issue, some Justices have already taken pains to say, in dictum, that knock-and-talks are lawful. Practitioners should not be dissuaded. What this faction of the Court describes is a highly romanticized—and utterly inaccurate—conception of what a knock-and-talk actually entails. The sort of activity that these …

Commodifying Policing: A Recipe For Community-Police Tensions, Nora V. Demleitner

Scholarly Articles

This Article, in Part II, begins with a description of how municipalities, at least since the recession of 2008, have fallen short of fully funding their departments. Part III focuses on four distinct outside funding components and their impact on policing. The first subsection discusses asset forfeitures, under both state and federal law. Subsection two highlights revenue derived from citations, often in the form of traffic tickets. A discussion of fees that are being added to fines, often to fund courts, probation agencies, and police departments, follows. The increasing amounts and types of fees imposed have substantially increased the burden …

The Fourth Amendment Categorical Imperative, David Gray

Michigan Law Review Online

The vast majority of current Fourth Amendment doctrine is unfounded, incoherent, and dangerous. The culprit is the Supreme Court’s 1967 decision in Katz v. United States, which defines “search” as government conduct that violates subjectively manifested expectations of privacy “that society is prepared to recognize as ‘reasonable.’ ” This is pure applesauce. Nowhere will you find a standard dictionary that defines “search” in these terms. Neither will you hear a native speaker of the English language use “search” in this sense unless her mind has been polluted by a semester of studying criminal procedure. The Court created this definition …

Digital Technology And Analog Law: Cellular Location Data, The Third-Party Doctrine, And The Law‘S Need To Evolve, Justin Hill

Law Student Publications

This comment explores how broader shifts in Fourth Amendment doctrine may affect the government's collection of Cell Site Location Information (CSLI) moving forward. It consists of three parts. Part I examines the technological underpinnings of cellular networks. The issue is frequently litigated, but few in the legal community have a real grasp on the technology. A nuanced understanding of the technology is crucial when examining the accuracy of CSLI or how the third-party doctrine ought to apply. This comment consolidates and simplifies the technical workings of cellular networks to enable better and more informed answers. Last, drawing on this understanding, …