Fourth Amendment Commons^™

Aids, Rape, And The Fourth Amendment: Schemes For Mandatory Aids Testing Of Sex Offenders, Paul H. Macdonald

Vanderbilt Law Review

Few subjects are as emotionally troubling as AIDS' and rape. The latter, of course, has plagued society throughout human history, but AIDS only recently has imposed itself upon our social and medical consciousness. Ever since AIDS became a familiar sight in the headlines nearly ten years ago, society has reacted to it with a mixture of anxiety, confusion, and despair. One consequence of the new societal awareness is the increased hesitancy with which individuals approach intimate contact. When intimate contact is involuntary as in the case of rape, fear of exposure to the disease is especially pronounced. Society,however, seems ill-prepared …

Drug Couriers And The Fourth Amendment: Vanishing Privacy Rights For Commercial Passengers, Alexandra Coulter

Vanderbilt Law Review

Increased drug enforcement initiatives within the United States parallel the international' escalation of the war on drugs. Curbing the flow of narcotics into the country has seemed an unconquerable task.The tremendous influx of illegal substances and the heightened domestic production of both natural and synthetic' drugs prompt governments at every level to attempt to restrict drug trafficking within the United States.' The enforcement escalation is highlighted by a vociferous executive and congressional commitment to the eradication of the drug problem, improved drug detection technology, and a dedication of increased manpower and resources to enforcement efforts.'

Detecting illegal substances during transportation …

Florida V. Riley: The Emerging Standard For Aerial Surveillance Of The Curtilage, David J. Stewart

Vanderbilt Law Review

The expression, "a man's home is his castle," embodies one of the most cherished individual liberties in American society, the right to en-joy privacy and freedom from unreasonable government intrusion in the confines of one's home.' Recognizing the importance of this right, the first Senate adopted the fourth amendment, which protects individuals from unreasonable searches and seizures.

Initially, the United States Supreme Court narrowly construed the fourth amendment as protecting only physical intrusions of persons,houses, papers, and effects.4 Later, the Court expanded coverage of the fourth amendment to include the area immediately adjacent to the home and used in connection …

A Middle Ground Approach To The Exclusionary Remedy: Reconciling The Redaction Doctrine With United States V. Leon, Rosemarie A. Lynskey

Vanderbilt Law Review

The fourth amendment to the United States Constitution commands that the right of individuals to be secure against unreasonable searches shall not be violated. The amendment further provides that a search warrant must be supported by probable cause and particularly describe the place to be searched and items to be seized.' The United States Supreme Court has held that the only effective means of enforcing this mandate is to suppress all evidence seized pursuant to a search warrant that violates the fourth amendment because it lacks either particularity or probable cause. Difficult questions arise, however, when a warrant contains some …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Case Digest

Materiality Standard for Concealment or Misrepresentation under Immigration and Nationality Act § 1451(a) is Sufficient to Influence an Immigration and Naturalization Service Decision; The Test of Good Moral Character under § 1101(f)(6) Does Not Require a Finding of Materiality for any False Testimony --Kungys v. United States, 108 S. Ct. 1537 (1988)

The Broad Subpoena Power of the Immigration and Naturalization Service does not Authorize Issuance of a Blanket John Doe Subpoena to Gather Information Regarding Unidentified Aliens--Peters v. United States, 853 F.2d 692 (9th Cir.1988)

Routine Strip Searches of Detained Juvenile Aliens Violate Juveniles' Fourth Amendment Rights--Flores …

Federalism, Separation Of Powers, And Individual Liberties, Dennis G. Lagory

Vanderbilt Law Review

In a world that the Framers hardly could have anticipated, the Constitution remains a singularly effective instrument for the pres- ervation of individual liberty. In its allocation of power between the states and the federal government, it provides Americans with multiple champions of their rights--the federal government, which protects a liberty that is constantly evolving to adapt traditional values to new realities, and the state governments, which protect the basic liberties to which mankind has always been entitled. In its allocation of power between the branches of the federal government, the Constitution provides us with a polity possessing powers adequate …

Defining The "Reasonable Expectation Of Privacy": An Emerging Tripartite Analysis, Richard G. Wilkins

Vanderbilt Law Review

A recent, illustrated version of the United States Constitution,issued in commemoration of its bicentennial, portrays the fourth amendment with a drawing of a home sitting atop the turret of a castle. The artistic statement aptly captures the common understanding of fourth amendment protections: A man's home is his castle, at least when it comes to governmental intrusions. Two recent Supreme Court decisions, however, that uphold the aerial surveillance of a suburban backyard and a commercial manufacturing facility, appear to challenge this popular perception. The home may be a castle-but that castle is impregnable only when nothing photogenic is occurring in …

State Adoption Of Federal Law: Exploring The Limits Of Florida's "Forced Linkage" Amendment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article examines the "forced linkage" between state and federal provisions that the 1983 amendment establishes in Florida. It concludes that forced linkage is ill-conceived, because it is inimical to state court independence. Accordingly, this article argues, the 1983 amendment to article I, section 12 of the Florida Constitution should be repealed. If not repealed, it should be interpreted to permit Florida courts broad discretion in developing their own stance on search and seizure law. So construed, the amendment would only require Florida courts to abide by those United States Supreme Court opinions that provide (1) an authoritative holding that …

Intrusive Border Searches -- What Protection Remains For The International Traveler Entering The United States After United States V. Montoya De Hernandez And Its Progeny?, Steve Anderson

Vanderbilt Journal of Transnational Law

This Note will examine the standards for initiation of strip, body cavity, and X-ray searches developed by the different circuits as well as the latitude allowed customs agents in carrying out such searches. It will also delve into the effect which Montoya de Hernandez and its progeny have had on this area of the law. Finally, this Note will propose possible solutions to the present confusion in the law.

The Securing Of The Premises Exception: A Search For The Proper Balance, Adam K. Peck

Vanderbilt Law Review

This Recent Development argues that although an opinion endorsed by only two justices is not binding precedent, this portion of Segura represents an undesirable departure from the strict protections traditionally afforded a person's privacy interest in the home and leaves lower courts confused about the constitutional limitations on seizures in the home. Part II examines prior Supreme Court opinions that have defined the parameters of permissible warrantless searches and seizures. Part III explores the circuit court opinions that have developed a "securing of the premises"exception. Part IV describes Chief Justice Burger's analysis in Segura. Part V argues that the Chief …

Defending The Citadel: The Dangerous Attack Of "Reasonable Good Faith", Stanley Ingber

Vanderbilt Law Review

This Article presents arguments that are designed to influence the Court's deliberations, to create a basis for critiquing the Court's opinions once rendered, and to provide guidance for state courts, which soon may need to decide whether a good faith exception is consistent with their state constitutions and procedures. To place the subsequent discussion in context, part I of the Article briefly sketches the historical development of the exclusionary rule. Part II develops the general arguments against the exclusionary rule and the specific arguments in favor of a good faith exception. Part III exposes the conceptual flaws of the exception …

Use Of Surveillance Evidence Under Title Iii, Thomas C. Banks

Vanderbilt Law Review

The rationale offered by Congress for requiring immediate sealing of wiretapping tapes by the court upon the completion of the interception period is to preserve the integrity of the tapes by preventing any tape tampering, alteration, editing, or other governmental bad faith. Congress, however, also added an exception to the sealing requirement that permits disclosure of the tapes' contents in a judicial proceeding if the government has contravened the sealing requirement yet has offered a satisfactory explanation for either a failure to seal or a delay in sealing. No circuit court treats sealing requirement violations in a manner that effects …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

APPLICATION OF UNITED STATES LAW TO A FOREIGN SEAMAN'S SUIT DEPENDS UPON THE SUBSTANTIALITY OF THE FOREIGN DEFENDANT'S CONTACTS WITH THE UNITED STATES--Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192 (11th Cir. 1983).

RECOVERY PURSUANT TO THE FISHERMEN'S PROTECTIVE ACT FOR LOSSES RESULTING FROM SEIZURE OF VESSLS FISHING IN DISPUTED WATERS Is NOT LIMITED TO CITIZENS AND RESIDENT ALIENS OF THE UNITED STATES-CrUZ V. Zapata Ocean Resources, Inc., 695 F.2d 428 (9th Cir. 1982).

UNITED STATES SUPPORT OF CANADIAN SEARCH OF UNITED STATES VESSEL ON THE HIGH SEAS DID NOT VIOLATE DEFENDANT'S FOURTH AMENDMENT RIGHTS--United States v. Hensel, 699 …

Colloquy, Mr. Wiseman, Professor Uviller, Ms. Rosen, Professor Zeisel, Professor Reiss, Mr. Washington, Mr/ Carrington, Ms. Collins, Professor Tonry, Mr. Hishta

Vanderbilt Law Review

At present, our system of criminal law administration has a considerable Rube Goldberg quality to it. Once the system decides to imprison a particular defendant--if we except from the generalization the couple of states that recently changed their laws in fundamental respects--the judge naturally asks himself what will happen when this man goes to prison. The answer is that the convicted offender will sit in prison for as long as the parole board wants him to. The judge must next consider whether any constraints exist on the parole board's decisions on when to release people from prison. In a third …

The Fourth Amendment And The "Legitimate Expectation Of Privacy", Gerald G. Ashdown

Vanderbilt Law Review

This Article does not endeavor to engage in a debate over the efficacy or deterrent effect of the exclusionary rule.' Nevertheless, it should be noted that these decisions appear questionable. It seems clear that a refusal to apply the rule in cases of particular fourth amendment transgressions will produce no incremental deterrence of unlawful police conduct, and inconsistent application of the rule arguably could diminish whatever deterrent value does exist.Therefore, if deterrence is viewed as the primary--if not only-function of the exclusionary rule, that goal should be promoted through thorough and consistent application of the rule.The Supreme Court, however, has …

Limiting The Application Of The Exclusionary Rule: The Good Faith Exception, Meredith B. Brinegar

Vanderbilt Law Review

The Supreme Court does not believe that the deterrent value of the exclusionary rule is sufficiently well established to merit broadening the rule's scope. The Court nonetheless has not yet carved out a blanket exception to the rule based solely on a lack of deterrent value. The Fifth Circuit decided in Williams that the exclusionary rule is not an effective deterrent in the good faith mistake or technical violations cases. It therefore removed these fourth amendment violations from exclusionary rule doctrine. Although the Fifth Circuit correctly reasoned that the Supreme Court would support the exception in the case of police …

Capacity To Contest A Search And Seizure: The Passing Of Old Rules And Some Suggestions For New Ones, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Professor Slobogin examines recent Supreme Court decisions involving standing to challenge search and seizure violations, and argues that the Court's commitment to a "totality of the circumstances" approach has permitted erosion of fourth amendment protections. After concluding that these decisions provide little guidance to lower courts, Professor Slobogin offers a set of principles which will aid in analyzing the Court's direction.

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Definition of Seaman under the Jones Act Need Not be Restricted to Person Assigned to Only One Vessel

Fourth Amendment Does Not Bar Warrantless Fishing Vessel Searches Authorized by the Fishery Conservation and Management Act of 1976 to Protect Fisheries in the Conservation Zone

Properly Extradited Fugitive Not Entitled to Judicial Hearing Challenging Enlargement of Original Warrant of Surrender

Visa Numbers Wrongfully Charged Against Western Hemisphere Quotas are Reissued According to an Historical Approach Rather than Chronological Order

Payment of Irrevocable Letter of Credit May Not be Enjoined on Grounds of Instability of Foreign Governments

Expropriation of a Contractual Right …

"Doing Business": Defining State Control Over Foreign Corporations, William A. Holby

Vanderbilt Law Review

This Note will attempt to analyze the present status of the term "doing business" or the substitute terminology used to define that level of activity sufficient to subject a foreign corporation to state control in a particular context.' After defining the degree of activity necessary to permit the state to exercise control in each context, this Note will analyze the accuracy and utility of using terminology such as "doing business" in describing whether corporate activity within a state is sufficient to permit state exercise of legislative or judicial jurisdiction. This Note concludes by pro-posing that use of such ambiguous language …

Constitutional Constraints On Initiative And Referendum, David J. Jordan

Vanderbilt Law Review

This Note examines possible constitutional constraints on initiative and referendum. Part II briefly discusses typical initiative and referendum procedures and contrasts these with representative legislative processes. Part III examines the constitutional significance of the differences highlighted in Part II. Finally, Part IV concludes that because of the peculiar political dynamics of initiative and referendum, which diminish normal safeguards of minority interests, courts may appropriately apply heightened due process and equal protection standards when reviewing direct legislation.

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

COURT SITTING IN ADMIRALTY MAY GRANT INJUNCTIVE RELIEF TO PREVENT MARITIME INSURER FROM "BLACKLISTING" SEAMEN WITHOUT CAUSE

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EXPENSES OF JUSTICE INCLUDE ONLY THOSE STORAGE EXPENSES INCURRED AFTER THE FILING OF A FORFEITURE ACTION BY THE UNITED STATES GOVERNMENT

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IMMIGRATION AND NATURALIZATION SERVICE MAY APPEAL AN IMMIGRATION JUDGE'S DECISION TO GRANT AN ALIEN RELIEF FROM DEPORTATION UNDER SECTION 212(c) OF THE IMMIGRATION AND NATIONALITY ACT

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FOURTH AMENDMENT NO BAR TO WARRANTLESS SEARCH OF FOREIGN FISHING VESSEL AUTHORIZED BY FISHERY CONSERVATION AND MANAGEMENT ACT OF 1976

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SCOPE OF LACEY ACT IS LIMITED TO FOREIGN LAWS DESIGNED TO PROTECT …

Recent Cases, Daniel P. Smith, R. Michael Moore

Vanderbilt Law Review

Courts Split on the Necessity of Separate Authorization for a Covert Entry Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968

Daniel Paul Smith

Title III of the Omnibus Crime Control and Safe Streets Act of 1968,' which regulates the use of electronic surveillance, was designed to protect "the privacy of wire and oral communications,"and to delineate "on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized."' In general, communications may be intercepted only by law enforcement officers, who are engaged in the investigation of …

Recent Decisions, Stanley D. Miller, G. Cranwell Montgomery, Douglas I. Friedman

Vanderbilt Journal of Transnational Law

Recent Decisions

Admiralty--Maritime Wrongful Death Action--A Maritime Wrongful Death Action for Unseaworthiness Alleging Loss of Support, Services, Society and Funeral Expenses is not Barred by Decedent's Recovery of Damages for Personal Injuries during His Lifetime

Stanley D. Miller

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Constitutional Law--Fourth Amendment Search and Seizure--Without Consent, Warrant or Probable Cause, A Roving Patrol Search of a Vehicle Twenty-Five Miles from Border is an Unreasonable Search and Seizure within Meaning of Fourth Amendment

G. Cranwell Montgomery

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Jurisdiction--Securities Exchange Act of 1934--Section 10(b) applies to Fraudulent Transaction in Unlisted Foreign Securities when the Only Conduct within the United States is the …

The Constitutional Dilemma Of A Person Predisposed To Criminal Behavior, John A. Chandler, Stanley F. Rose

Vanderbilt Law Review

The basic premise of American criminal jurisprudence is that individuals are capable of controlling their behavior.' The threat of incarceration is intended to be a deterrent to antisocial conduct. State and federal penal systems are called "correctional institutions"--implying that a person is incarcerated in order to modify unacceptable behavior. Criminal laws are drafted with goals of discouraging antisocial conduct,punishing and reforming the guilty, and protecting society against dangerous individuals. The first two purposes are served only if a person can respond to negative reinforcement by conducting himself in socially acceptable ways. Individuals incapable of controlling antisocial behavior are not accounted …

Book Review, Lyman R. Patterson

Vanderbilt Law Review

A revolution wrought by judges with the pen is more rare than one carried out by citizens with arms. The Warren Court did make a revolution--"the due process revolution," as the-- author calls it--and it is this transformation in our law that is the subject of Fred Graham's book, The Self-Inflicted Wound. The wound referred to in the title is Miranda v. Arizona,' in which the Supreme Court of the United States held that before the police can interrogate an accused in custody, they must warn him that he is entitled to a lawyer and that anything he says may …

The Origin Of The Sacco-Vanzetti Case, Tom O'Connor

Vanderbilt Law Review

For the first time in the thirty-three years since Sacco and Vanzetti were executed, on August 23, 1927, there has appeared an apologia for the Commonwealth of Massachusetts. The work bears the title: Sacco-Vanzetti: The Murder and the Myth. The author is Robert H. Montgomery, a Harvard Law School graduate (1912) and a corporation lawyer in Boston for nearly fifty years. His clients include textile mills, such as the American Woolen Company (center of the famous Lawrence Strike of 1911), New England Telephone & Telegraph Co., and large electric power interests. The approach of Attorney Montgomery to the Sacco-Vanzetti case …

Federal Law Of Search And Seizure As An Incident To Lawful Arrest In The Light Of The Case Of Harris V. United States, C.D. Berry, N.C. Frost

Vanderbilt Law Review

The recent widely discussed case of Harris v. United States further complicates that already complex phase of search and seizure which relates to the extent to which officers may search as an incident to a lawful arrest. The Fourth Amendment to the Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon prob-able cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to he seized." It has …