Fourth Amendment Commons^™

Reasonableness And Objectivity: A Feminist Discourse Of The Fourth Amendment, Dana Raigrodski

Articles

This article suggests that a critical reexamination of the Fourth Amendment and its jurisprudence through feminist lenses can shed new light and add to our understanding of it. These insights, in turn, can and should generate a positive feminist Fourth Amendment jurisprudence—a distinctive feminist voice to be integrated systematically into the law of search and seizure, leading to a transformation of the Fourth Amendment itself. Applying feminist theories to particular issues and normative layers of current Fourth Amendment jurisprudence may help guide us through the more difficult task of imagining a feminist jurisprudence of search and seizure law.

Fourth Amendment Limitations On The Execution Of Computer Searches Conducted Pursuant To A Warrant, David Ziff

Articles

Police officers and other government agents commonly seize and search computers during criminal investigations. When reviewing the search of a properly seized computer for compliance with the Fourth Amendment, courts face the complicated task of applying constitutional protections from the eighteenth century to today's computerized world. Many courts and commentators have attempted to draw analogies to old rules or invented new rules to evaluate these computer searches. This Note examines one "special approach" that some courts have adopted to limit the scope of computer searches, and concludes that this special approach is unwarranted. Rather, this Note argues that courts should …

Protestors Have Fourth Amendment Rights, Too: In Graves V. City Of Coeur D'Alene, The Ninth Circuit Clouds Clearly Established Law Governing Searches, Holly Vance

Washington Law Review

In Graves v. City of Coeur d'Alene, the United States Court of Appeals for the Ninth Circuit concluded that a police officer should not have arrested a protestor at an Aryan Nations parade when the protestor refused to allow the officer to search his backpack. The court held that the arrest was illegal because the officer had no probable cause to believe the protestor was carrying a weapon. However, the court also held that the arresting officer was entitled to qualified immunity and thus not liable for his violation of the protestor's rights. Qualified immunity is a privilege that …

Consent Engendered: A Feminist Critique Of Consensual Fourth Amendment Searches, Dana Raigrodski

Articles

As I will argue, the Court's consent-to-search cases are driven by this patriarchal ideology to maintain social structures of power disparities and to perpetuate the subordination of women, minorities, and other disempowered members of society.

We need to acknowledge the power and submission paradigm that underlies police-citizen encounters and to scrutinize the entire notion of consent. In order to confront both power and consent, I will turn to feminist critique of consent, particularly in the area of rape, and to feminist writings about choice and agency. Based on these writings I will argue that by distinguishing coerced consent to a …

State V. Parker: Searching The Belongings Of Nonarrested Vehicle Passengers During A Search Incident To Arrest, H. Matthew Munson

Washington Law Review

The Fourth Amendment to the U.S. Constitution and Article I, Section 7 of the Washington Constitution generally require a warrant supported by probable cause to conduct a search or seizure. One exception to these requirements is a search incident to arrest, which permits the police to search arrested persons and the area within the arrestee's reach for weapons and evidence. Prior to State v. Parker, when police arrested an occupant of an automobile in Washington, they could search the entire passenger compartment of the vehicle with the exception of locked containers. In State v. Parker, a plurality of …

Shut The Blinds And Lock The Doors—Is That Enough?: The Scope Of Fourth Amendment Protection Outside One's Own Home, Ramsey Ramerman

Washington Law Review

The Fourth Amendment was designed to be a barrier that protects citizens from unreasonable government intrusion and surveillance. However, for the Amendment to grant meaningful protection, the rules that govern the scope of that protection must supply guidance to police and citizens. While the Fourth Amendment unquestionably protects people in their own homes, the scope of the Amendment's protection outside the home is not clear. In Rakas v. Illinois, the U.S. Supreme Court held that courts should define the scope of Fourth Amendment protection by considering sources outside of the Fourth Amendment. While Rakas provides guidance to courts, it …

Breaking Out Of "Custody": A Feminist Voice In Constitutional Criminal Procedure, Dana Raigrodski

Articles

In this Essay, I suggest that reexamination of this field of law through a feminist lens can shed new light and add to the understanding of constitutional criminal procedure. These insights, in turn, can and should generate a positive feminist jurisprudence of criminal procedure—a distinctive feminist voice to be integrated systematically into our constitutional criminal procedure and our criminal justice system. Applying feminist legal theories to particular areas of constitutional criminal procedure may help guide us through the more difficult task of constructing a positive feminist jurisprudence of constitutional criminal procedure. Many areas of constitutional criminal procedure lend themselves as …

Search And Seizure, Third-Part Consent: Rethinking Police Conduct And The Fourth Amendment, Gregory S. Fisher

Washington Law Review

Two recent decisions offer different approaches for assessing police conduct in third-party consent cases. In Illinois v. Rodriguez the United States Supreme Court held that police may rely on third parties' apparent authority to consent to a search so long as police reasonably believe in third parties' authority. In State v. Leach, the Supreme Court of Washington held that police cannot rely on third parties' consent when defendants are present and able to object, even if defendants did not object to the search. This Comment argues that courts should focus on police conduct, rather than on defendants' presence or on …

Aliens' Fourth Amendment Rights Against Government Searches Abroad—United States V. Verdugo-Urquidez, 856 F.2d 1214 (9th Cir. 1988), Cert. Granted, 109 S. Ct. 1741 (1989), Richard J. Dolan

Washington Law Review

The "war on drugs" and the effort to contain international terrorism have raised questions of when the Constitution restricts the actions of the United States government abroad. This Note analyzes United States v. Verdugo-Urquidez, a case in which the Ninth Circuit Court of Appeals held that aliens have fourth amendment rights against United States government searches of their residences abroad. The Note agrees that the court's holding was correct, but suggests the court's "natural rights" theory was too broad to comport with prior Supreme Court limitations of aliens' constitutional rights. Instead, the Note suggests that the relationship between an alien …

A Reprise Of Warrants, Probable Cause, And Articulable Suspicion In Immigration Enforcement—Laduke V. Nelson, 762 F.2d 1318 (9th Cir. 1985), Barbara J. Selberg

Washington Law Review

This Note analyzes LaDuke v. Nelson, in which the Ninth Circuit held that the farm and ranch check practices of the INS violated the fourth amendment in that seizures were made without warrants, probable cause, or articulable suspicion of illegal alienage. The court's alternative holding criticized the INS for conducting searches without warrants, probable cause, or effective consent. For LaDuke to stand it must be carefully distinguished from the Supreme Court's most recent fourth amendment decisions, which juxtapose the individual's interest in privacy and security with the government's interest in effective law enforcement. LaDuke should stand because it provides an …

Defining A Fourth Amendment Search: A Critique Of The Supreme Court's Post-Katz Jurisprudence, Michael Campbell

Washington Law Review

This Comment attributes the inadequacies of the Burger Court's application of Katz to that Court's identification of an interest in privacy with an interest in the secrecy of information. An interest in privacy, however, should more properly be defined as an interest in being left alone. Accordingly, this Comment proposes that a search be defined by reference to the conduct of the government, rather than by reference to the information uncovered by that conduct. Specifically, a search should be defined as conduct that violates a social norm of privacy. Such a definition of search would have several beneficial consequences. Among …

Issuance Of Search Warrants By A Washington Special Inquiry Judge—State V. Neslund, 103 Wn. 2d 79, 690 P.2d 1153 (1984), Alice M. Wright

Washington Law Review

Since its creation in 1971, the Washington special inquiry judge procedure has operated virtually without constitutional challenge. However, the recent case of State v. Neslund raised the issue of whether a special inquiry judge can properly act as a neutral and detached magistrate to issue search warrants. The United States Constitution and the Washington State Constitution set forth basic guarantees of privacy and fairness, including the right to be free from unreasonable searches and seizures. Generally a "reasonable" search must be accompanied by a search warrant issued upon a determination of probable cause by a neutral and detached magistrate. This …

Issuance Of Search Warrants By A Washington Special Inquiry Judge—State V. Neslund, 103 Wn. 2d 79, 690 P.2d 1153 (1984), Alice M. Wright

Washington Law Review

Since its creation in 1971, the Washington special inquiry judge procedure has operated virtually without constitutional challenge. However, the recent case of State v. Neslund raised the issue of whether a special inquiry judge can properly act as a neutral and detached magistrate to issue search warrants. The United States Constitution and the Washington State Constitution set forth basic guarantees of privacy and fairness, including the right to be free from unreasonable searches and seizures. Generally a "reasonable" search must be accompanied by a search warrant issued upon a determination of probable cause by a neutral and detached magistrate. This …

Terry Stop Or Arrest? The Washington Court Attempts A Distinction—State V. Williams, 102 Wn. 2d 733, 689 P.2d 1065 (1984), Beryl N. Simpson

Washington Law Review

In State v. Williams the Washington Supreme Court attempted to set forth specific criteria for determining when a temporary detention exceeds the bounds of a Terry stop and becomes an arrest, with the concomitant probable cause requirement. The court relied on both the fourth amendment and article 1, section 7 of the state constitution as the bases for its standards. The holding, however, is fact-specific, and the court's discussion of the permissible scope and intensity of an investigatory stop does not adequately establish guidelines for the police to apply in a future situation. Further, because the court did not ground …

Unreasonable Searches And Seizures Of Papers, Eric Schnapper

Articles

This article argues that the Supreme Court's original view of the history and meaning of the fourth amendment was correct: seizures of papers were condemned in eighteenth-century England without respect to the validity of any underlying warrant, and the search and seizure clause thus embodies requirements independent of the warrant clause.

Part I discusses the eighteenth-century English decisions, including Entick, and concludes that the case law of that era had two separate branches. One branch forbade general warrants and led to the adoption of the warrant clause; the other, exemplified by Entick, prohibited the seizure of certain papers …

Criminal Procedure—Luggage Found During A Lawful Warrantless Search Of An Automobile May Not Be Searched Without A Warrant—Arkansas V. Sanders, 442 U.S. 753 (1979), Suzanne Oliver

Washington Law Review

In Arkansas v. Sanders, the U.S. Supreme Court held that in the absence of exigent circumstances, police must obtain a warrant before searching luggage taken from an automobile lawfully stopped and searched for contraband. The majority opinion, written by Justice Powell, sharply restricts further extension of the "automobile exception" to the warrant requirement of the fourth amendment. The Court found the exception inapplicable for two reasons. First, a suitcase in the custody of police lacks the inherent mobility of an automobile. Second, there is a much greater expectation of privacy associated with luggage than is associated with a car. A …

Constitutional Law: Search And Seizure—The Role Of Police Officer Good Faith In Substantive Fourth Amendment Doctrine—Michigan V. De Fillippo, 443, U.S. 31 (1979), Richard E. Gifford

Washington Law Review

This note challenges the Court's implicit assumption that a policeman's good faith reliance is relevant in determining whether the fourth amendment has been violated. That assumption is incompatible with precedent. Prior decisions suggest good faith reliance should not be considered until after the court has established that a violation occurred and applicability of the exclusionary rule is at issue. Without offering a coherent explanation for its departure from precedent, the DeFillippo Court casually added police good faith to the already complex body of substantive search and seizure law. Thus, the decision created yet another dimension of disquieting uncertainty in the …

High On The Seas: Drug Smuggling, The Fourth Amendment, And Warrantless Searches At Sea, Daniel H. Foote

Articles

Today no statute prohibits the mere possession of marijuana or other controlled substances beyond the three-mile offshore territorial limit of the United States; but prosecutions relating to vessels carrying controlled substances outside the territorial waters may be based upon charges of conspiracy to import or distribute the substances. In attempting to halt the recent increase in smuggling of such contraband by sea, the United States Coast Guard and other law enforcement agencies have aggressively exercised their powers to stop and search vessels. Two parallel statutory provisions, 14 U.S.C. § 89(a) and 19 U.S.C. § 158,(a), give the Coast Guard and …

Search And Seizure In Alaska: A Comprehensive Review, Jeff M. Feldman

Articles

In the eighteen years since Alaska achieved statehood, fifty-two cases involving issues of search and seizure have reached the Alaska Supreme Court. This article will analyze these cases with an eyetowards outlining the law of search and seizure in Alaska, isolating those areas in which the Alaska Supreme Court has departed from prevailing search and seizure doctrine, and using past decisions to predict the probable outcomes to search and seizure issues still unresolved in Alaska.

Criminal Procedure—Filing By Information: Determination Of Probable Cause Required Before Extended Restraint On Liberty—Gerstein V. Pugh, 420 U.S. 103 (1975), Cynthia B. Whitaker

Washington Law Review

Robert Pugh was arrested in Florida without a warrant and charged by prosecutor's information. Pugh and other incarcerated arrestees charged by information without a preliminary hearing brought a class action suit in federal district court challenging the constitutionality of the charging procedure. Plaintiffs maintained that the due process clause of the fourteenth amendment required that accused persons be accorded a determination of probable cause for detention soon after their arrest. They also argued that the prosecuting attorney was not sufficiently neutral or detached to make the necessary determination. The district court accepted the plaintiffs' arguments, and the Court of Appeals …

The Applicability Of The "New" Fourth Amendment To Investigations By Secret Agents: A Proposed Delineation Of The Emerging Fourth Amendment Right To Privacy, Robert L. Bergstrom

Washington Law Review

Recent Supreme Court search and seizure cases are the harbingers of a new conceptual way of analyzing fourth amendment questions. The author describes the separate fourth amendment issues of applicability and reasonableness and critically analyzes the Court's development of new privacy rules of applicability. The Court fails to recognize that privacy has both quantitative and qualitative aspects; the limited quantum of privacy analysis may account for this failure. This comment proposes a new fourth amendment privacy model and illustrates its application in various secret agent situations.

The End Of An Experiment In Federalism—A Note On Mapp V. Ohio, Arval Morris

Washington Law Review

When one views the full panoply of constitutional rights from the perspective of total United States Supreme Court history, he soon becomes aware that relatively few cases have directed that Court's attention to the constitutional immunity from unreasonable searches and seizures. However, the right expressed by the fourth amendment is obviously one of the most fundamental' for it gives legal protection to the "right of a man to privacy in his home, a right which is one of the indispensable ultimate essentials of our concept of civilization." Since this right is "basic to a free society"' and "implicit in the …

The Washington Law Of Arrest Without Warrant—Incidental Search, Robert D. Duggan

Washington Law Review

The scope of this comment is limited to considerations of the substantive law of arrest without a warrant and the permissible scope of searches and seizures incidental thereto. The discussion of substantive requirements for arrest without warrant and its incidental search will be confined to present Washington case law as measured against the federal constitutional and common law backgrounds.

Constitutional Law—Unreasonable Search And Seizure, Jack J. Lobdell

Washington Law Review

A member of the Metropolitan Police of Washington, D.C. entered the hotel room of A and B for the purpose of subjecting it to a search. A and B were absent and no search warrant had been obtained. Narcotics, which had been stored there by D without knowledge of A or B, were found and later turned over to a federal agent. D was arrested and convicted of violating federal narcotics laws. 43 Stat. 328, 26 U.S.C. § 2553(a) (1924) ; 43 Stat. 657, 21 U.S.C. § 174 (1924). Prior to trial, D moved to suppress the use, as evidence, …