Fourth Amendment Commons^™

Diminishing Probable Cause And Minimalist Searches, Kit Kinports

Faculty Scholarship

This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are …

Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Faculty Scholarship

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists …

The Ice Storm In U.S. Homes: An Urgent Call For Policy Change, Katherine Evans

Faculty Scholarship

Since its creation in 2003, the Bureau of Immigration and Customs Enforcement (ICE) has used increasingly aggressive tactics to enforce U.S. immigration law. One of ICE's most prominent enforcement initiatives is its practice of raiding the homes of immigrants. Accounts of home raids from victims all over the country reveal a pattern of practice that differs widely from ICE's official statements regarding raids. This paper establishes that although immigration officials are governed by the Fourth Amendment when conducting home raids, ICE's agents nonetheless regularly violate the Constitution when carrying out home raids. Additionally, this paper argues that the number and …

Recent Case, Ninth Circuit Considers Community's Racial Tension With Police In Finding Illegal Seizure And Lack Of Voluntary Consent. — United States V. Washington, 490 F.3d 765 (9th Cir. 2007), Portia Pedro

Faculty Scholarship

The traditional story of Fourth Amendment search and seizure doctrine involves a complex compromise between public safety and the constitutional right to personal liberty. Although the choice of viewpoint is often left out of the story, much also depends on whose perspective — police officers’ or civilians’ — a judge employs for search and seizure determinations. The chosen perspective circumscribes the types of facts that a judge considers in these evaluations. In United States v. Washington, the Ninth Circuit held that the district court should have suppressed evidence obtained through a vehicle search because the consent was not voluntary, or, …

The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers

Faculty Scholarship

No abstract provided.

Criminal Procedure In Perspective, Kit Kinports

Faculty Scholarship

This Article attempts to situate the Supreme Court's constitutional criminal procedure jurisprudence in the academic debates surrounding the reasonable person standard, in particular, the extent to which objective standards should incorporate a particular individual's subjective characteristics. Analyzing the Supreme Court's search and seizure and confessions opinions, I find that the Court shifts opportunistically from case to case between subjective and objective tests, and between whose point of view - the police officer's or the defendant's - it views as controlling. Moreover, these deviations cannot be explained either by the principles the Court claims underlie the various constitutional provisions at issue …

The Good And Bad News About Consent Searches In The Supreme Court, Tracey Maclin

Faculty Scholarship

This article is about the Supreme Court's consent search doctrine. Part I describes how the law of consent searches developed between the 1920s and 1973, when Schneckloth v. Bustamonte was decided, which is the Court's seminal consent search case.

Part II of the article is a discussion of Bustamonte. In particular, this part highlights the spoken and unspoken premises that influenced the result in Bustamonte and outlines Bustamonte's continuing relevance for consent search cases today.

Part III examines United States v. Drayton, a ruling authored by Justice Kennedy that explains why a cryptic passage in that ruling provides important clues …

Tied Up In Knotts? Gps Technology And The Fourth Amendment, Renée Mcdonald Hutchins

Faculty Scholarship

Judicial and scholarly assessment of emerging technology seems poised to drive the Fourth Amendment down one of three paths. The first would simply relegate the amendment to a footnote in history books by limiting its reach to harms that the framers specifically envisioned. A modified version of this first approach would dispense with expansive constitutional notions of privacy and replace them with legislative fixes. A third path offers the amendment continued vitality but requires the U.S. Supreme Court to overhaul its Fourth Amendment analysis. Fortunately, a fourth alternative is available to cabin emerging technologies within the existing doctrinal framework. Analysis …

A Suspicionless Search And Seizure Quagmire: The Supreme Court Revives The Pretext Doctrine And Creates Another Fine Fourth Amendment Mess, Edwin J. Butterfoss

Faculty Scholarship

This Article contends the Supreme Court's use of a primary purpose test to regulate suspicionless searches and seizures by the government is misguided and will provide little or no protection against the evils that apparently led the Court to strike down recent schemes by government officials. The evil of the government schemes is less the purpose of the schemes than their expansion into areas and activities in which citizens should be protected from government intrusion in the absence of any suspicion of wrongdoing. Rather than facing this head on and carefully assessing whether the government schemes infringe on such areas …

Bright Line Breaking Point: Embracing Justice Scalia’S Call For The Supreme Court To Abandon An Unreasonable Approach To Fourth Amendment Search And Seizure Law, Edwin Butterfoss

Faculty Scholarship

In Thornton v. United States, the United States Supreme Court applied the bright-line rule of New York v. Belton to uphold the search of containers in the passenger compartment of a car when the arresting officer made initial contact with the suspect alter the suspect had parked his car and started walking away. Justice Scalia concurred in the judgment but criticized the majority for relying on the bright-line rule of Belton to uphold the search, stating that the Court’s effort to apply the Belton rule stretched that doctrine "beyond its breaking point."

Justice Scalia found the search in Thornton lawful …

The Usa Patriot Act And The Submajoritarian Fourth Amendment, Susan Herman

Faculty Scholarship

No abstract provided.

Patriotic Dissent, Susan Herman

Faculty Scholarship

No abstract provided.

Collapsing Spheres: Joint Terrorism Task Forces, Federalism, And The War On Terror, Susan Herman

Faculty Scholarship

No abstract provided.

Trager Symposium: Our New Federalism? National Authority And Local Autonomy In The War On Terror: Introduction, Susan Herman

Faculty Scholarship

No abstract provided.

Overcoming Hiddenness: The Role Of Intentions In Fourth Amendment Analysis, Daniel B. Yeager

Faculty Scholarship

This Article rehearses a response to the problems posed to and by the Supreme Court's attempts to work out the meaning and operation of the word "search." After commencing Part II by meditating on the notion of privacy, I take up its relation to the antecedent suspicion or knowledge that Fourth-Amendment law requires as a justification for all privacy invasions. From there, I look specifically at that uneasy relation in Supreme Court jurisprudence, which has come to privilege privacy over property as a Fourth Amendment value. From there, Part III reviews the sources or bases that can tell us what …

Unconstitutional Police Searches And Collective Responsibility, Bernard E. Harcourt

Faculty Scholarship

Then the police officer told the suspect, without just cause, "I bet you are hiding [drugs] under your balls. If you have drugs under your balls, I am going to fuck your balls up."

Jon Gould and Stephen Mastrofski document astonishingly high rates of unconstitutional police searches in their groundbreaking article, "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution." By their conservative estimate, 30% of the 115 police searches they studied – searches that were conducted by officers in a department ranked in the top 20% nationwide, that were systematically observed by trained field observers, and that were coded …

Stubbornness Of Pretexts, Daniel B. Yeager

Faculty Scholarship

This Article will reflect on (1) how the Whren v. United States failure to acknowledge what counts as a pretext accounts for the residual confusion as to whether or not Whren really has killed off the pretext argument in constitutional criminal procedure, and (2) the extent to which the Court in Sullivan compounded that failure, which I hope to lightly correct here by distinguishing motives from intentions and then by elaborating the role that each plays, or at least should play, in Fourth Amendment jurisprudence.

Dna Identification Databases: Legality, Legitimacy, And The Case For Population-Wide Coverage, David H. Kaye, Michael E. Smith

Faculty Scholarship

Over the past decade, law enforcement authorities have amassed huge collections of DNA samples and the identifying profiles derived from them. Large DNA databanks routinely help to identify the guilty and to exonerate the innocent, but as the databanks grow, so do fears about civil liberties. Perhaps the most controversial policy issue in the creation of these databases is the question of coverage: Whose DNA profiles should be stored in them? The possibilities extend from convicted violent sex offenders to all convicted felons, to everyone arrested, to the entire population. This Article questions the rationales for drawing the line at …

The Magic Lantern Revealed: A Report Of The Fbi's New Key Logging Trojan And Analysis Of Its Possible Treatment In A Dynamic Legal Landscape, Woodrow Hartzog

Faculty Scholarship

Magic Lantern presents several difficult legal questions that are left unanswered due to new or non-existent statutes and case law directly pertaining to the unique situation that Magic Lantern creates. ²⁵ The first concern is statutory. It is unclear what laws, if any, will apply when Magic Lantern is put into use.²⁶ The recent terrorist attacks in the United States have brought the need for information as a matter of national security to the forefront. Congress recently passed legislation (i.e. USA PATRIOT Act) ²⁷ that dramatically modifies current surveillance law, thus further complicating the untested waters of a …

The Constitutionality Of Dna Sampling On Arrest, David H. Kaye

Faculty Scholarship

Every state now collects DNA from people convicted of certain offenses. Law enforcement authorities promote offender DNA databanking on the theory that it will identify offenders who commit additional crimes while or probation or parole, or after they have finished serving their sentences. Even relatively small databases have yielded such dividends. As these database searches uncover the perpetrators of rapes, murders, and other offenses, the pressure builds to expand the coverage of the databases.

Recent proposals call for extending not merely the scope of crimes for which DNA databanking would be used, but also the point at which the samples …

Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried

Faculty Scholarship

DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been neglected.

At the investigative stage, courts have barely begun to focus on the legal limitations on the power of the police to obtain samples directly from suspects and to use the data from DNA samples in various ways. Issues such as the propriety of "DNA dragnets" (in which large numbers of individuals in a geographic …

Search And Seizure – Police Searches On Public School Campuses In New Mexico – State V. Tywayne H., Michael W. Doyle

Faculty Scholarship

In State v. Tywayne H. the New Mexico Court of Appeals held that the lowered standard of reasonable suspicion that the United States Supreme Court applied to school officials in New Jersey v. T.L.O. would not apply to police officers invited onto a public school campus if the police officers conducted the search solely at their own discretion. Thus, the court held that a police officer will be held to the standard of probable causefor searches on public school campuses. Prior to Tywayne H., New Mexico courts had not addressed the standard to which police would be held when …

The Domestic Fourth Amendment Rights Of Undocumented Immigrants: On Guitterez And The Tort Law/Immigration Law Parallel, Victor C. Romero

Faculty Scholarship

This Article is composed of three parts. Part I examines the problems raised by the Gutierrez I regime, including the collapse of the protective constitutional floor of immigrants' rights portended by that decision. Part II contends that the current plenary power approach to immigration and immigrants' rights issues would likely support, rather than dismantle, the Gutierrez I approach to undocumented immigrants' Fourth Amendment rights. Part III provides an alternative to the plenary power regime by drawing a parallel between domestic tort law for premises liability and immigrants' rights law. This part concludes by showing that Rowland and its progeny could …

Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt

Faculty Scholarship

The October 1999 Term was a year of consolidation in the law of police investigations in constitutional criminal procedure. In four short and compact opinions – three supported by sizeable majorities and three written by the Chief Justice – the Supreme Court synthesized and consolidated its criminal procedure jurisprudence, and offered clear guidance to law enforcement officers and private citizens alike. Miranda warnings are required by the Fifth Amendment, and the police must continue to "Mirandize" citizens before conducting any custodial interrogations. Reasonable suspicion under the Fourth Amendment calls for a totality-of-the-circumstances test, and a citizen's flight from the police …

Be My Guest: The Hidden Holding Of Minnesota V. Carter, Edwin J. Butterfoss, Mary Sue B. Snyder

Faculty Scholarship

This Article first examines the Carter case in detail, including the opinions of the state courts and the briefs and oral argument in the United States Supreme Court, before turning to the Court's decision. The Article highlights the importance of Justice Kennedy's concurring opinion and explains the "hidden holding" of the case, raising the question of whether lowercourts will apply the correct rule from the case. The Article argues that the Court's denial of the defendants' claim of a reasonable expectation of privacy, combined with its failure to provide guidance as to when non-overnight visitors in homes will have the …

Police, Community Caretaking, And The Fourth Amendment, Debra A. Livingston

Faculty Scholarship

The local police have multiple responsibilities, only one of which is the enforcement of criminal law. Police gather eyewitness accounts in the aftermath of a shooting, but they also assist lost children in locating their parents. Police identify and arrest those who have committed felonies, but they also respond to heart attack victims and help inebriates find their way home. Sometimes police check on the well-being of elderly citizens. As Professor Goldstein said some twenty years ago, "The total range of police responsibilities is extraordinarily broad .... Anyone attempting to construct a workable definition of the police role will typically …

The Process Of Terry-Lawmaking, Daniel C. Richman

Faculty Scholarship

The organizers of this Conference obviously gave a lot of thought to its structure. We started off with a session that showed the Supreme Court at its best, working under the gentle leadership of Chief Justice Warren, and guided by the sage counsel of Justice Brennan, to balance the demands of the Fourth Amendment with the exigencies of street encounters. Now we come to a session in which the Supreme Court comes off well, not merely in one, but in both papers. For Steve Saltzburg, Terry itself may not have been perfect, but, over time, the Court has made it …

Police Patrol, Judicial Integrity, And The Limits Of Judicial Control, Debra A. Livingston

Faculty Scholarship

I want to thank St. John's for inviting me to be part of this reexamination of Terry v. Ohio – and particularly for this opportunity to participate in a roundtable discussion on the relationship between stop and frisk doctrine and the substantive law. This is an important and timely topic and I am happy to see it being discussed in such a serious venue.

When I was preparing my remarks for today, I thought I should call them, "Terry and the Substantive Law: A Hard, Hard Problem." Fortunately, I have sworn off titles with colons, so I settled on "Police …

Fourth Amendment Accommodations: (Un)Compelling Public Needs, Balancing Acts, And The Fiction Of Consent, Guy-Uriel Charles

Faculty Scholarship

The problems of public housing-including crime, drugs, and gun violence- have received an enormous amount of national attention. Much attention has also focused on warrantless searches and consent searches as solutions to these problems. This Note addresses the constitutionality of these proposals and asserts that if the Supreme Court's current Fourth Amendment jurisprudence is taken to its logical extremes, warrantless searches in public housing can be found constitutional. The author argues, however, that such an interpretation fails to strike the proper balance between public need and privacy in the public housing context. The Note concludes by proposing alternative consent-based regimes …

The Fourth Amendment's Forcing Of Flawed Choices: Giving Content To Freedom For Residents Of Public Housing - Pratt V. Chicago Housing Authority, 848 F. Supp. 792 (N.D. Ill. 1994), Erika George

Faculty Scholarship

In April 1994, the United States District Court for the Northern District of Illinois issued a preliminary injunction halting the "Operation Clean Sweep" program operated by the Chicago Housing Authority ("CHA"). ³ The court did so over the protestations of some of those most affected, the public housing residents subjected to the CHA's searches. ⁴ Pratt v. Chicago Housing Authority⁵ attracted the attention of the nation and President William Clinton, who requested that the Justice Department investigate ways to strengthen security in public housing without offending the Fourth and Fourteenth Amendments of the United States Constitution.

Civil libertarians applauded …