Fourth Amendment Commons^™

Beyond The Face: Examining Legal Regulations For Law Enforcement Facial Recognition Technology, Insun Park

Akron Law Review

No abstract provided.

Exigencies, Not Exceptions: How To Return Warrant Exceptions To Their Roots, Michael Gentithes

Akron Law Faculty Publications

When a police officer interacts with an individual, the encounter is subject to myriad exceptions to the Fourth Amendment’s warrant requirement that lack a coherent justifying theory. For instance, officers can warrantlessly search if an automobile was involved in the interaction, an arrest occurred, or a protective sweep was necessary to prevent a third- party ambush. Officers and indi viduals struggle to understand the breadth and complexity of these exceptions. The resulting confusion breeds widespread distrust and raises the tension in millions of interactions across the country. There is an easier way. The Supreme Court has recently reaffirmed its support …

Rulifying Reasonable Expectations: How Katz And Originalism Can Work Together To Create A More Determinate Fourth Amendment, Michael Gentithes

Akron Law Faculty Publications

For decades, commentators have decried the Supreme Court’s Fourth Amendment search jurisprudence as a hopelessly confusing jumble. Critics save their harshest barbs for the judicially created “reasonable expectations of privacy” test, suggesting that it provides little guidance and leaves search cases open to wide judicial discretion. Motivated by such critiques, several Justices have recently claimed that an originalist approach could replace the reasonable expectations test, limit judicial discretion, and clarify the Fourth Amendment’s meaning. This Article provides a comprehensive defense of the reasonable expectations test against originalist calls to abandon it. It notes two flaws in the originalist response. First, …

Forensic Searches Of Electronic Devices And The Border Search Exception: Movement Toward Requirement For Particularized Suspicion, Marissa Pursel

Akron Law Review

Under current federal law, government agents at the national border have broad discretion to search a traveler seeking to enter or exit the United States. While these government agents would generally need a warrant to conduct the same search elsewhere, searches at the border do not require any degree of suspicion. The policy argument that protects this practice is national security, recognizing the border’s vulnerability to physical threats such as the transportation of contraband and dangerous weapons. Current federal policy, however, makes no distinction between the search of a traveler’s suitcase and the search of her smartphone. The Fourth and …

Pandemic Surveillance: The New Predictive Policing, Michael Gentithes, Harold J. Krent

Akron Law Faculty Publications

In Part I, we examine the growth of predictive policing, which similarly treats some individuals differently based on the likelihood that they will either commit or be the victim of a crime. If such surveillance does not lead to detention, incursion on the right to travel, or other loss of freedom, we believe such efforts to be constitutional, even though not always wise. Use of data to prioritize law enforcement efforts poses no insuperable constitutional obstacles. But deployment of predictive analytics can result in infringement on the right to liberty, as we relate. In Part II, therefore, we apply the …

Suspicionless Witness Stops: The New Racial Profiling, Michael Gentithes

Akron Law Faculty Publications

Young men of color in high-crime neighborhoods are surrounded by poverty and crime, yet distrustful of the police who frequently stop, frisk, and arrest them and their friends. Every encounter with the police carries the potential for a new arrest or worse, fostering a culture of fear and distrust of law enforcement. That culture exacerbates the problems facing the officers patrolling these neighborhoods as more crimes go unsolved because witnesses are unwilling to come forward. In the past several decades, officers have responded by using a stop-and-frisk technique of dubious constitutionality to control crime. Despite its disastrous implications for the …

App Permissions & The Third-Party Doctrine (Symposium), Michael Gentithes

Akron Law Faculty Publications

In the spirit of Professor Tokson's effort to consider the next wave of Fourth Amendment cases likely to reach the Supreme Court, this essay addresses a looming technological challenge to the Court's third-party doctrine: the permissions that app developers obtain on our digital devices. Such permissions - which are either granted by the user upon installation of the app or permitted by the operating system without any user input - entitle app developers to access and send data from the device, such as the user's location services, motion sensors, contacts, calendars, social media accounts, camera, or microphone. Carpenter contracted the …

Book Review: Psychiatric Justice, Alice M. Batchelder

Akron Law Review

In an era in which extensive judicial emphasis has been placed on "due process of law" in criminal proceedings, both in the federal courts and in the state courts, Dr. Szasz's book serves as a jarring reminder that in at least one vital area of the concept of due process, much remains to be done. The emerging definition of due process has enunciated the rights guaranteed the individual by the Fourth, Fifth, Sixth, and Fourteenth Amendments; and viewed within that framework, this book, although published in 1965, remains particularly timely, for Szasz, speaking as a psychiatrist, endeavors to demonstrate how …

Warrantless Search Of A College Dormitory, Ronald J. Bacigal

Akron Law Review

The first question the courts must consider is whether there are any limitations on when and how university officials may search a dormitory room. Since the fourth amendment has no application to searches and seizures conducted by private individuals, the courts have jurisdiction to review only state action infringing on the constitutional right to a reasonable expectation of privacy. In spite of indirect public financial support and state regulation of private universities, the courts have thus far held that the actions of private university officials are not to be considered as a form of state action. Thus this article is …

A Legal Note On The Nixon Pardon: Equal Justice Vis-À-Vis Due Process, Luis Kutner

Akron Law Review

THE FIRST TWO MAJOR ACTS of the Ford Presidency-the offer of earned amnesty (at least insofar as draft resisters in the Vietnam conflict are concerned) and the pardon granted to former President Richard M. Nixonwere charitable, wise and just. This article, of course, will discuss the presidential pardon for Mr. Nixon.

The Need For Judicial Restriction On The Use Of Drug Detecting Canines, William R. Pomeroy

Akron Law Review

The purpose of this comment is to examine these issues, outline the conflicting positions, and attempt to forecast the direction the courts may take in their effort to bring some harmony to this unsettled (and to some, unsettling) area of law. Few people would attempt to deny law enforcement officials the use of this highly effective and relatively unintrusive law enforcement tool. Yet there are those who fear that the unsettled questions concerning limits on the use of this tool may lead to serious abuse, and who raise the specter of unlimited government intrusion should this type of investigatory activity …

Drug Urinalysis In The Public Schools: Going Beyond T.L.O., James J. Cummings

Akron Law Review

The approach taken here will be to discuss briefly the fourth amendment, review traditional doctrines involving school searches, analyze the recent United States Supreme Court decision in New Jersey v. T.L.O., describe the relevant issues in a urinalysis search and recommend the standard by which such procedures should be judged.

The Fourth Amendment: In Search Of Illegal Aliens Immigration And Naturalization Service V. Delgado, Cristina A. Navarro

Akron Law Review

Throughout the nation's history, illegal immigration has generated considerable debate. Particularly important is the problem of illegal immigration from Mexico. The importance is due to the potential impact on Mexico/United States relations, and the sheer numbers involved. Many people believe that immigrants are primarily responsible for the United State's economic problems. As a result, much attention is being focused on the immigration issue. In order to combat illegal immigration the trend is to toughen up immigration policies and extend the authority of the Immigration and Naturalization Service (INS). One way INS authority is exercised is through "area control operations" known …

United States V. Markham: The Attack On The Drug War Becomes An Attack On The Fourth Amendment, Lee A. Schaffer

Akron Law Review

In United States v. Markham, the United States Court of Appeals for the Sixth Circuit expanded the exception even further when it upheld the validity of a warrantless search of a mobile home parked in a private residential driveway.

This casenote will review the history behind the fourth amendment's warrant requirement and the development of the automobile exception. Next, it will examine the Supreme Court's decision in Carney to evaluate the sixth circuit's application of the automobile exception in Markham, and the court's ruling that a warrantless search and seizure of a motor home parked in the driveway …

Mill's Theory Of Liberty In Constitutional Interpretation, Wilson Ray Huhn

Akron Law Review

I wish to apply Justice Thompson's discussion of the nature of liberty in a more general context in addressing fundamental questions of constitutional interpretation. Justice Thompson's essential inquiry is, "Should the enforcement of morals be the concern of the law?" I take the liberty of slightly rephrasing that question: "Is the enforcement of traditional moral norms per se constitutional?" I suggest that the answer to this question is "no." Courts and scholars have often confused our moral traditions with our traditions of liberty and equality. My central premise is that it is for the legislature to enact morality into law, …

Beware Of Government Agents Bearing Trojan Horses, Brian L. Owsley

Akron Law Review

This Article addresses the use of Trojan devices by the Government to legally search computers potentially around the world. Although the Government does seek judicial authorization for these techniques based on a search warrant, there are still concerns about whether the applications meet constitutional standards as well as Rule 41 of the Federal Rules of Criminal Procedure (“Rule 41”). The use of these Trojan devices has not been addressed in current scholarship meaningfully; therefore, this Article focuses on when and how authorization of search warrant applications for these techniques are appropriate. Part II addresses the implications of the standards enunciated …

The Search For The Fourth Amendment Seizure: It Won't Be Found On A Bus - Florida V. Bostick, James Spallino Jr.

Akron Law Review

The Florida v. Bostick decision raises important Fourth Amendment questions regarding police encounters with citizens.

Part I of this Note discusses the development of the legal standard used for determining when a consensual encounter results in an impermissible seizure. Part II reviews the Bostick decision. Part III analyzes the impact of the Bostick decision. This section argues that: (1) the status of the legal standard to be used in consensual encounter cases is now uncertain as a result of the Court's holding; (2) the Court sent a strong message to individuals and the law enforcement community by refusing to decide …

Another Casualty Of The War . . . Vagrancy Laws Target The Fourth Amendment, T. Leigh Anenson

Akron Law Review

This Comment will review the origins of the vagrancy law and its traditional abuses. It will then examine decisions discussing the vagrancy law's constitutionality under the Due Process clause void-for-vagueness doctrine and the courts' attempted remedy of explicit standards as to place, scope, or purpose. The remainder of this Comment will discuss the constitutionality of these revised vagrancy laws under the Fourth Amendment's prohibition of unreasonable seizures.

Wilson V. Arkansas: Thirty Years After The Supreme Court Addresses The Knock And Announce Issue, Todd Witten

Akron Law Review

This Note will initially discuss the historical background of the knock and announce principle and its evolution from the English common law. Next, the Note will address the facts and the holdings of Wilson, in the lower courts and the Supreme Court. Finally, the Note will analyze the Wilson decision and its precedential value.

Off Duty, Off The Wall, But Not Off The Hook: Section 1983 Liability For The Private Misconduct Of Public Officials, Douglas S. Miller

Akron Law Review

The language quoted in the previous paragraph, employing as it does the metaphor of causation, represents one model for determining when a person has acted under color of law. Other models have also been used. In Part II of this Article, I note briefly the inconsistency of outcome that has marked this area, and identify the various models used, relying in part on the efforts of other commentators to describe the models that might be available from a theoretical standpoint. In the course of identifying these models, I note that many, if not all, lack authority either in the history …

The Shift Of The Balance Of Advantage In Criminal Litigation: The Case Of Mr. Simpson, David Robinson Jr.

Akron Law Review

The intense public interest in the extraordinary trial and acquittal of Mr. O.J. Simpson provides an appropriate occasion to look at the criminal justice system more generally, to note where we have been in the balance of advantage between prosecution and defense, where we are now, and where, perhaps, we should be.

Chandler V. Miller: Redefining "Special Needs" For Suspicionless Drug Testing Under The Fourth Amendment, Joy L. Ames

Akron Law Review

This Note will discuss the three Supreme Court cases that, up to now, have defined Fourth Amendment doctrine regarding suspicionless drug testing in the public sector: National Treasury Employees Union v. Von Raab, Skinner v. Railway Labor Executives’ Association, and Vernonia School District v. Acton. Specifically, this Note will focus on the "special needs" analysis as it was articulated in these cases, as well as how that analysis was altered in Chandler. This Note will then thoroughly analyze the Chandler decision, pointing out its strengths in eliminating some of the subjectivity of Fourth Amendment doctrine. It will also explain the …

Atwater V. City Of Largo Vista: Buckle-Up Or Get Locked-Up: Warrantless Arrests For Fine-Only Misdemeanors Under The Fourth Amendment, Jason M. Katz

Akron Law Review

The first part of this note presents a brief background of the constitutional jurisprudence regarding arrests. The note then recites the facts that led to this case and the legal proceedings that followed, including the Supreme Court’s decision. Next, the note analyzes the Court’s majority opinion, remarks on changes and deviations that were made in the law, and questions some areas of the Court’s analysis. The note concludes by addressing the significant consequences that the Atwater ruling may have on ordinary Americans.

Overgeneralization Of The Hot Pursuit Doctrine Provides Another Blow To The Fourth Amendment In Middletown V. Flinchum, Nathan Vaughn

Akron Law Review

Unreasonable searches of the home have often been regarded as a serious infringement upon one’s right to privacy. The right to privacy is currently recognized by a variety of governments and has existed for hundreds of years. Although the Constitution does not grant an express right to privacy, the Supreme Court has consistently acknowledged the rights of personal privacy and zones of privacy. Affording extra protection to the home seems to show that our right to privacy is at its peak behind closed doors.

Unfortunately, the list of exceptions to the warrant requirement is large and continuously growing. These exceptions …

Please Report To The Principal's Office, Urine Trouble: The Effect Of Board Of Education V. Earls On America's Schoolchildren, M. Casey Kucharson

Akron Law Review

This Note analyzes the Supreme Court’s recent opinion in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls and its implication for the future of the Fourth Amendment and drug testing. Part II of this Note documents the history and the expansion of the “special needs” doctrine, and illustrates how the doctrine has whittled away high school and middle school students’ Fourth Amendment guarantees. Part III of this Note introduces the parties and gives a picture of the circumstances surrounding the Earls case. Part III then discusses the District Court for the Western District of …

Dudley Do Wrong: An Analysis Of A "Stop And Identify" Statute In Hiibel V. Sixth Judicial District Of Nevada, James G. Warner

Akron Law Review

Part II of this note traces the development of “stop and identify” statutes, including its origins in historical vagrancy and loitering statutes, courts’ treatment of such laws, and the progression of the specific Nevada statute at issue. Part III examines the appellate and Supreme Court decisions in the Hiibel case. Part IV analyzes the Court’s decision in Hiibel under the void for vagueness doctrine and the Fourth and Fifth Amendments, and highlights the recent enactment of a “stop and identify” statute in Arizona. Finally, Part V concludes that the Nevada “stop and identify” statute allows too great of an intrusion …

Chief Justice William Rehnquist: His Law-And-Order Legacy And Impact On Criminal Justice, Madhavi M. Mccall, Michael A. Mccall

Akron Law Review

In this article, we explore Chief Justice Rehnquist’s criminal justice decisions through an empirical analysis of the Court’s decision-making tendencies for the most recent natural court and a review of selected criminal justice decisions written by Justice Rehnquist throughout his career. To start, we limit the analysis, with only two exceptions, to decisions actually written by Justice Rehnquist. Although Chief Justice Rehnquist, in that position, had an important role in leading other justices to agree with him by assigning cases, we gleaned a substantial amount of information regarding his decisional patterns and policy preferences by analyzing the opinions he personally …

Two Wrongs Don't Make A Fourth Amendment Right: Samson Court Errs In Choosing Proper Analytical Framework, Errs In Result, Parolees Lose Fourth Amendment Protection, Rachael A. Lynch

Akron Law Review

This Note will follow the Fourth Amendment from its origins to its modern application to parolee rights, as evidenced by the Samson Court. Part II focuses on the Fourth Amendment, from the circumstances surrounding its adoption to modern court cases that have applied its tenets to prisoners, probationers, and, finally, parolees. Part III details the Supreme Court’s decision in Samson v. California, including a thorough discussion of the facts that gave rise to the case and lower court decisions. Part IV explores the problems with the Court’s framework and suggests other possible frameworks the Court could have used to come …

How Privacy Killed Katz: A Tale Of Cognitive Freedom And The Property Of Personhood As Fourth Amendment Norm, Christian M. Halliburton

Akron Law Review

With each passing day, new technologies push the horizons of official government investigative and surveillance activity deeper and deeper into the mind and consciousness of the surveilled subject. While law enforcement agencies have always relied on observing the behavior and activity of suspicious targets, and there has been little judicial ink spent preserving the confidentiality of such observable activity, the law has been slow to respond to rapid increases in the capacity or scope of official observation that the advance of technologically sophisticated surveillance techniques helped facilitate. The sampling of techniques at the center of this Article allow the operators …

Foreword To The Neuroscience, Law & Government Symposium, Jane Campbell Moriarty

Akron Law Review

It is with much pleasure that I write the foreword for this Symposium in the Akron Law Review. The authors were each presenters at the Neuroscience, Law & Government Conference, held at The University of Akron School of Law in September, 2008. The articles in this edition of Akron Law Review are as diverse as the presentations themselves, and provide a fascinating glimpse into various ways in which neuroscience is making inroads in both law and government. The explosion of neuroscience and neuroimaging discoveries this decade is nothing short of remarkable, leading one prominent scientist to term the last several …