Fourth Amendment Commons^™

"Intolerable" Inquiries, Zachary R. Cormier

St. John's Law Review

(Excerpt)

A growing majority of courts have broadly accepted travel-plan questions (and their follow-up questions) as a qualifying category of traffic-mission inquiries under Rodriguez, leaving officers with a clear pathway from pretextual traffic stop—to extended discussion about vehicle occupant activities outside the traffic violation—to drug dog sniff—to vehicle search. A closer analysis of Rodriguez, however, precludes such passage through the heart of its traffic-mission rule. This Article will demonstrate that travel-plan questioning cannot qualify alongside the roadway safety checks identified by Rodriguez in its traffic-mission inquiry list because such checks provide direct information about another safety-related traffic violation …

Power, Responsibility, And Judicial Deference To Police Expertise In Fourth Amendment Decisionmaking, Nicholas A. Kahn-Fogel

St. John's Law Review

(Excerpt)

Courts have long deferred to police expertise in Fourth Amendment decisionmaking, most prominently in their application of the reasonable-person standard in assessments of probable cause and reasonable suspicion. Scholars have often bemoaned such deference as an abdication of the judicial obligation to make independent determinations of Fourth Amendment reasonableness. Nonetheless, the Supreme Court of the United States and lower courts are unlikely to abandon their view of police officers as possessing elevated knowledge, skill, experience, and perceptual abilities that merit judicial consideration in the evaluation of Fourth Amendment probabilities. On the other hand, the Court has tended to assume …

Family Regulation's Consent Problem, Anna Arons

Faculty Publications

The home is the most protected space in constitutional law. But family regulation investigators conduct millions of home searches a year. Under pressure, parents nearly always consent to these state agents’ entry into the most private areas of their lives.

This Article identifies the coercive forces—not least the threat of family separation—that drive parents to consent to home searches. Drawing on primary sources and case law examining consent in criminal cases, it shows that common family regulation investigation tactics render consent involuntary and the ensuing searches unconstitutional. And yet, it argues, the Constitution is not enough. Though constitutional litigation could …

Utah V. Strieff And Teaching Analysis, Lisa A. Tucker

St. John's Law Review

(Excerpt)

In Utah v. Strieff, the Supreme Court considered whether the Fourth Amendment required suppression of evidence obtained in an unlawful investigatory stop when police discovered that the person stopped was subject to lawful arrest based on an unrelated outstanding warrant. The majority opinion, written by Justice Clarence Thomas, held that suppression was not required in such a case; the dissent by Justice Sotomayor argued that it should be.

These two legal opinions took jarringly different approaches to determining a question of law, one that disproportionately impacts people of color, who are statistically most likely to be unlawfully stopped …

After The Age Of Discretion: Policing And Privacy In A World Of Automated Roadway Enforcement, Trayce Hockstad, Lawrence Cappello

St. John's Law Review

(Excerpt)

Our Fourth Amendment attempts to harmonize in fifty-eight words the tenuous, antagonistic relationship between privacy and public safety. These two values appear to be deadlocked in a contentious legal orbit, leaving behind them a trail of fascinating but foreboding jurisprudence in American law. The fundamental need of individuals for spaces of seclusion from government surveillance has endured a slow siphoning of its constitutional protection by the encroaching definition of the “public” and the perceived need to police every person and place that may be considered so. Nowhere has this proven truer than our nation’s roadways. As the judicial system …

The Empty Promise Of The Fourth Amendment In The Family Regulation System, Anna Arons

Faculty Publications

Each year, state agents search the homes of hundreds of thousands of families across the United States under the auspices of the family regulation system. Through these searches—required elements of investigations into allegations of child maltreatment in virtually every jurisdiction—state agents invade the home, the most protected space in Fourth Amendment jurisprudence. Accordingly, federal courts agree that the Fourth Amendment’s warrant requirement applies to family regulation home searches. But almost universally, the abstract recognition of Fourth Amendment protections runs up against a concrete expectation on the ground that state actors should have easy and expansive access to families’ homes. Legislatures …

Thompson V. Clark And The “Reasonable” Policing Of Marginalized Families, Anna Arons

Faculty Publications

This Article uses the experience of Larry Thompson, the plaintiff in Thompson v. Clark, 142 S. Ct. 1332 (2022), to examine the absence of privacy for poor families, particularly poor Black, Latinx, and Native families, in the United States. Mr. Thompson may end up remembered in legal history as a victor, as the Supreme Court lowered the barriers to bringing malicious prosecution claims and reinstated Mr. Thompson’s own previously dismissed malicious prosecution claim. Yet before securing this victory, Mr. Thompson lost a slew of other Fourth Amendment claims against the police. Mr. Thompson’s claims arose from state agents’ warrantless …

Presumed Punishable: Sentencing On The Streets And The Need To Protect Black Lives Through A Reinvigoration Of The Presumption Of Innocence, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Following the police killing of George Floyd in the summer of 2020, there has been a renewed focus on protecting Black people in America from excessive police violence. While the images of George Floyd were shocking to the public, that level of extreme violence and disregard for life has been a common aspect of the lives of Black Americans throughout history. In America, Black people are "pre­sumed punishable." Due to the historical and persistent biases against Black people, Black people find themselves subject to false assumptions about their criminality and presumptions that they are deserving of punishment. This stands …

Stingray Cell-Site Simulator Surveillance And The Fourth Amendment In The Twenty-First Century: A Review Of The Fourth Amendment In An Age Of Surveillance, And Unwarranted, Harvey Gee

St. John's Law Review

(Excerpt)

This Review discusses two timely and insightful books examining the changing relationship between privacy and the Fourth Amendment in the digital era. Part I discusses the tensions between the need to protect privacy rights and the slowly evolving legal landscape during a time of rapidly changing technology, to introduce David Gray’s The Fourth Amendment in an Age of Surveillance. His book explains how the Fourth Amendment, though embattled, can have a prominent role in twenty-first century discussions of privacy, technology, and surveillance. Gray’s analysis is engaged to broaden the conversation about Stingray technology. This section analyzes a sampling of …

Unlimited Data Search Plan: Warrantless Border Search Of Mobile Device Data Likely Unconstitutional For Violating The Fundamental Right To Informational Privacy, Atanu Das

St. John's Law Review

(Excerpt)

Part I of this Article discusses a case in which a United States citizen was subject to an unconstitutional warrantless border search of his mobile device data. Part II explains the history and current state of Supreme Court jurisprudence of the border search exception doctrine. Part III explains the way in which Supreme Court jurisprudence finds the right to informational privacy for mobile device data to be a fundamental right. Part IV discusses the reluctance of some legal commentators to find that a governmental intrusion on the right to informational privacy is subject to strict scrutiny. Part V finds …

To Knock Or Not To Knock? No-Knock Warrants And Confrontational Policing, Brian Dolan

St. John's Law Review

(Excerpt)

This Note proceeds in three parts. Part I begins by explaining what no-knock warrants are and why they are used. Part I then addresses recent state legislative efforts to reform no-knock warrant use and argues that these efforts, however well-intentioned, are insufficient. Part I will also provide a brief history of how no-knock warrant use developed and gives an overview of the current status of state law regarding no-knock warrants. Part II argues that, contrary to the arguments of no-knock proponents, elimination of no-knock warrants and strict adherence to the knock-and-announce requirement is a more effective way to ensure …

A Warrant Requirement Resurgence? The Fourth Amendment In The Roberts Court, Benjamin J. Priester

St. John's Law Review

(Excerpt)

Over many years, the United States Supreme Court has developed an extensive body of precedent interpreting and enforcing the provisions of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures by law enforcement agents conducting criminal investigations. Commonly called the “warrant requirement,” one key component of this case law operates to deem some police investigatory techniques to be unconstitutional unless they are conducted pursuant to a search warrant issued in advance by a judge. The terms of the doctrine and its exceptions also authorize other investigatory actions as constitutionally permissible without a search warrant. …

Nowhere To Run, Nowhere To Hide.* Applying The Fourth Amendment To Connected Cars In The Internet-Of-Things Era, Gregory C. Brown, Jr.

Journal of Civil Rights and Economic Development

(Excerpt)

Part I of this Note will briefly discuss the key components of a Connected Car, identify who collects the data from the Car, and examine the various uses for the data. Part I also explores whether Car owners consent to the collection of their Car’s data. Part II-A will trace the historical development of the automobile exception to the Fourth Amendment, which generally permits law-enforcement officers to conduct a warrantless search of a vehicle. Part II-B will discuss how the Supreme Court has applied the Fourth Amendment to pre-Internet technologies. Part II-C will discuss two recent Fourth Amendment Supreme …

Enforcing The Fourth Amendment: The Original Understanding, Bradford Wilson

The Catholic Lawyer

No abstract provided.

The Quality Of Life: From Roe To Quinlan And Beyond, Joseph Cincotta

The Catholic Lawyer

No abstract provided.

Warrantless Inspections By Administrative Officials Held Violative Of Fourth Amendment

The Catholic Lawyer

No abstract provided.

"Reasonable" Police Mistakes: Fourth Amendment Claims And The "Good Faith" Exception After Heien, Karen Mcdonald Henning

St. John's Law Review

(Excerpt)

Given Heien’s distinction between the standard under the Fourth Amendment and the standard for qualified immunity, we are left after Heien with the conclusion that the concept of “objectively reasonable” conduct varies depending on the type of claim the Court is addressing. In particular, Heien leaves open both the question of what constitutes a reasonable mistake of law for Fourth Amendment purposes and the question of how that answer relates to the good faith exception to the exclusionary rule. This Article explores these questions. Part I examines how the Court has increased its tolerance of police mistakes, both in …

Ordinance Allowing Search Without A Warrant Held Invalid

The Catholic Lawyer

No abstract provided.

Of Third-Party Bathwater: How To Throw Out The Third-Party Doctrine While Preserving Government's Ability To Use Secret Agents, Amy L. Peikoff

St. John's Law Review

(Excerpt)

In Part I of this Article, I discuss the third-party doctrine, including its history, the types of cases to which it has been applied, and arguments in favor of and against it, with particular focus on Orin Kerr's defense of the doctrine. In Part II, I propose an alternative-and, I think, better-way of dealing with cases typically thought to fall under this doctrine. My proposal, as we will see, rests upon the model for the legal protection of privacy that I have elucidated and defended in prior articles: a model based on our rights to property and contract. Finally, …

The Death Penalty On The Streets: What The Eighth Amendment Can Teach About Regulating Police Use Of Force, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

The use of force by police officers has traditionally been analyzed through the lens of Fourth Amendment reasonableness. The Supreme Court has decided that the proper question regarding the excessiveness of police force is whether the police officer acted as a reasonable law enforcement officer. When that police force is fatal — what this Article deems the death penalty on the streets — the legal question is the same, leaving us with an analysis that requires a heavy reliance on the officer's version of events and a host of disagreement on what constitutes appropriate police action. Reasonable minds can, …

Deciding The Stop And Frisk Cases: A Look Inside The Supreme Court's Conference, John Q. Barrett

Faculty Publications

In our system of constitutional decision-making, the Supreme Court makes law as an institution in its formal written opinions. The Court and its individual members make their official legal marks in the printed pages of the United States Reports. In June 1968, in Terry v. Ohio and Sibron v. New York, the two decisions that approved the constitutionality under the Fourth Amendment of police stop and frisk practices, the Court filled many official pages with rich discussion. Over the ensuing thirty years, these Court and individual opinions have shaped the course of constitutional analysis in our courts and guided the …

The Street Locations: Downtown Cleveland, October 31, 1963, John Q. Barrett

Faculty Publications

This appendix to Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 St. John’s L. Rev. 749 (1998), consists of a map drawn by Jill Dinneen (SJU Law '99), based on Sanborn maps from the 1950s and 1960s, photographs and eyewitness descriptions of downtown Cleveland then and now; and a key to marked locations on the map.

State Of Ohio V. Richard D. Chilton And State Of Ohio V. John W. Terry: The Suppression Hearing And Trial Transcripts, John Q. Barrett

Faculty Publications

This appendix to Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 St. John’s L. Rev. 749 (1998), includes Biographical Information on the Participants in the Case; and transcripts of the complete pretrial and trial proceedings in the 1964 criminal prosecutions of Richard Chilton and John Terry, arranged by Prof. Barrett to create the organization reflected in the Table of Contents at the beginning of the appendix. Footnotes were added to provide citations and, in a few instances, to clarify the text. Bracketed material was added to correct obvious slips of the tongue or the …