Fourth Amendment Commons^™

(Mis)Judging Suspicion, Sherri Lee Keene

Georgetown Law Faculty Publications and Other Works

Twenty-five years ago, the Supreme Court decided Illinois v. Wardlow, a Fourth Amendment case that allowed the high-crime nature of a location to be considered in determinations of whether there was reasonable suspicion to support a police stop. In making these determinations, courts rarely acknowledge the role that race can play in decisions that factor in the nature of a location as context. Yet even when the race of a defendant is not mentioned, high-crime area designations can act as a proxy for race inviting racial bias into courts’ analyses. Reasonable suspicion analysis involves the interpretation of a suspect’s …

Students' Rights In School, Gator Team Child Clinic

Gator Team Child Juvenile Law Clinic

An informational flyer that gives an overview of important students' rights cases in your pocket. The three cases in the flyer that are summarized are, New Jersey v. T.L.O. (1985), Tinker v. Des Moines (1969) and In Re Gault (1967).

A Citizenship Model Of The Fourth Amendment, Danieli Evans

Articles

Fourth Amendment law is in disarray. In recent years, courts and scholars have questioned central aspects of Fourth Amendment doctrine—in particular, the reasonable expectations of privacy test that has governed since the 1960s. Scholars and judges have argued for abandoning this test and instead looking to private law (sub-constitutional rules governing private conduct, such as tort, property, and contract law) to determine Fourth Amendment protection.

At a moment when judges and scholars are questioning core aspects of Fourth Amendment doctrine, the time is ripe to reconsider the values Fourth Amendment law ought to serve. I advance a novel vision for …

Legislatively Erased: The Failure Of Privacy Legislation To Protect People Connected To The Criminal Legal System, Chaz Arnett, Kate Weisburd

Faculty Scholarship

No abstract provided.

Justifying The Fourth Amendment, Daniel Epps

Scholarship@WashULaw

Why does the Fourth Amendment belong in the Constitution? This question is not whether society should impose some legal restraints on government searches and seizures. Rather, why should such protections reside in our national charter, superior to other forms of law and insulated from change via ordinary majoritarian political processes? Despite major disputes about the Fourth Amendment’s content, Fourth Amendment theorists rarely ask this question. Almost all agree that the Fourth Amendment’s constitutional protections are critically important—even if no one can agree exactly what those protections are.

This Article seeks a justification for the Fourth Amendment—the reason why search-and-seizure protections …

Replacement Opening Brief For Plaintiff-Appellant Timothy Olmos, Ciara Gerendas, Noah Goldstein, Eli O'Neal, Madeline H. Meth

Faculty Scholarship

Today, nearly everyone relies on a cellphone. Many use their phones to store a wealth of private information, including conversations over text messages and emails; photographs of family, friends, pets, and joyous occasions; and confidential banking and medical records. The Supreme Court, therefore, regards a cellphone search as one that “typically expose[s] to the government far more than the most exhaustive search of a house.”

The Supreme Court also recognizes that despite the legal status of people subject to probation conditions, probationers still retain Fourth Amendment protections against unreasonable searches. And this Court has held that probationers, who like almost …

Immigrant Surveillance In San Diego During A Fascist Era, Jennifer L. Torres Leon

McNair Summer Research Program

The following qualitative study examines a new increase of technological surveillance used on immigrants by San Diego’s local law enforcement. Drawing from in-depth interviews of the San Diego Privacy Advisory Board and Trust SD, insights of technological related violations are sanctioned by the San Diego Police Department. This is done through ambiguous language regarding “criminal investigations” and lack of definitive use policy, despite several memorandums and recommendations by the SD Privacy Advisory Board. Present findings reveal a duality of immigrant surveillance instigating hyper-visible tracking and broadcasting an image of their criminality. This study contributes to scholarship or crimmigration and urban …

Middle Schoolers Explore The Rule Of Law At Second Annual Mandell-Boisclair Justice Camp 7-17-2025, Jordan J. Phelan

School of Law Conferences, Lectures & Events

No abstract provided.

Law School News: Middle Schoolers Explore The Rule Of Law At Second Annual Mandell-Boisclair Justice Camp 07-17-2025, Jordan J. Phelan

Life of the Law School (1993- )

No abstract provided.

The Equal Protection-Fourth Amendment Shell Game: An Essay On The Limited Reach Of The 2023 Affirmative Action Cases, The Fourth Amendment, And Race Beyond Skin Color, David B. Owens

Articles

In striking down race-conscious admissions at Harvard and the University of North Carolina, the Supreme Court used lofty rhetoric about the importance of ending race discrimination, even calling the command of Equal Protection “universal.” In two ways, this Essay explores the legal and practical limits of the affirmative action cases and illustrates how the Court’s claimed concern about race discrimination rings hollow. First, this Essay discusses state actors permitted to use race in their decision-making: the police. Unlike elite universities whose policies are subject to exacting scrutiny, the Supreme Court permits police to use race when deciding whom to seize …

Race, The Academy, And The Constitution Of The War On Drugs, Jeffrey Bellin, Bennett Capers

Vanderbilt Law School Faculty Publications

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only in- creased since the war was declared in 1971. David Pozen's new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a "right" to use drugs with surprising, if fleeting, suc- cess. Pozen asks what might have been, exploring why the courts backtracked and effectively re- moved the Constitution as a meaningful obstacle to drug prohibitions. …

Police Don't Need A Warrant To Search The Exploding Tesla Cybertruck's Computer - Can They Search Your Data, Too?, Adam M. Gershowitz

Popular Media

No abstract provided.

Policing As General Warrants, Warren Buff, Brandon Hasbrouck

Scholarly Articles

The drafters of the Bill of Rights and its proponents envisioned a document constitutionalizing protections against some of the worst abuses they had experienced under English rule. Prominent businessmen—many of them engaged in smuggling— found their homes ransacked in search of contraband on flimsy evidence and without any reason given for the disruption of their business and consequent enrichment of government agents. The Fourth Amendment addressed the use of general warrants and writs of assistance to allow government agents to conduct broad searches with limited scrutiny. In the early years of the Constitution, this had little practical effect, because public …

The Fourth Amendment's Hidden Intrusion Doctrine, Laura Ginsberg Abelson

Faculty Journal Articles and Book Chapters

The Fourth Amendment’s concept of probable cause is the linchpin of legal standards governing law enforcement actions such as arrests, searches, and seizures. This article challenges the assumption that the same quantum of evidence can meet the probable cause standard regardless of whether law enforcement seek to conduct a search, to seize evidence, or to make an arrest, and regardless of the intrusiveness of such search or seizure. This paper demonstrates that the Supreme Court implicitly considers the degree of intrusion into privacy or liberty, not just the quantum or quality of evidence, when determining whether probable cause exists. In …

The Reality Of The Good Faith Exception, Matthew Tokson, Michael Gentithes

Utah Law Faculty Scholarship

The Fourth Amendment’s primary remedy is the exclusion of unlawfully obtained evidence at trial. But not every defendant whose rights are violated gets a remedy. The most substantial obstacle for defendants is the good faith exception, which directs courts to admit unlawfully collected evidence if the police can show they relied in good faith on existing authority. If the police rely on a statute that turns out to be unconstitutional, or a warrant or precedent that turns out to be invalid, the evidence they obtain will nonetheless be admitted under the good faith exception. The Supreme Court has justified this …

Facial Recognition Technology And The First Amendment, Joseph A. Tomain

Articles by Maurer Faculty

The growing ubiquity of facial recognition technology (FRT) is a problem. While much has been written on harmful government use of FRT, little has been written regarding harmful private actor use. This Article helps fill a gap in the literature by providing a detailed analysis of the First Amendment interests at stake when private actors use FRT. Specifically, this Article analyzes whether laws that limit the use of publicly available photographs to create faceprints for inclusion in FRT databases violate the First Amendment rights of private actors.

In May 2025, a multidistrict litigation against Clearview AI, an FRT company, offered …

The Warrant Exception That Isn't: Fisa Section 702, "Defensive" Searches, And The Fourth Amendment, Noah C. Chauvin

Faculty Articles

Section 702 of the Foreign Intelligence Surveillance Act allows the government to conduct warrantless electronic surveillance of non-Americans who are located overseas. Although the surveillance targets foreigners, Americans' communications are "incidentally" collected, too. Once the government has acquired Americans' communications, court-approved rules allow it to conduct warrantless searches for and through them in its Section 702 databases. Intelligence agencies have used these rules to turn this foreign intelligence program into a domestic spying tool, conducting tens of thousands of warrantless "backdoor" searches for Americans' private communications obtained under Section 702 every year.

Section 702 periodically sunsets; Congress most recently reauthorized …

Katz'S Imperfect Circle: An Empirical Study Of Reasonable Expectations Of Privacy, Tonja Jacobi, Christopher Brett Jaeger

Faculty Articles

Under Katz v. United States, the Fourth Amendment restricts government actions that infringe upon expectations of privacy that society recognizes as reasonable. This foundational test has long been criticized as circular, both because courts can shape the very expectations they seek to identify through their decisions and because governments can manipulate those expectations to expand the reach of their own power. But how do members of society decide what expectations are reasonable, and how do judges ascertain those expectations? And are expectations of privacy malleable even without deliberate manipulation?

This Article shows that the circularity critique is both understated …

Office Intent And Excessive Force, John F. Preis

Law Faculty Publications

In the mayhem that often accompanies a police officer’s use of force, all manner of mistakes and miscalculations can occur. Suspects are accidentally shot, innocent bystanders are bitten by police dogs, and hostages are killed instead of their kidnappers. To what degree may persons harmed by police mistakes obtain relief through excessive force claims?

At present, the answer to this question is surprisingly uncertain. It is clear that an excessive force claim requires that an officer intend to seize the suspect, but it is far less clear whether the officer must also intend the nature and extent of force used …

Decentering Property In Fourth Amendment Law, Michael C. Pollack, Matthew Tokson

Articles

For the past several decades, privacy has been the primary conceptual foundation for Fourth Amendment search law. The canonical test for Fourth Amendment searches accordingly looks to whether the government has violated a person’s reasonable expectation of privacy. Yet privacy is no longer the sole determinant of Fourth Amendment protection, as the Supreme Court has recently added a property-based test to address cases involving physical intrusions on land or chattel. Further, given the ambiguity of the reasonable expectation of privacy test, a variety of influential judges and scholars have proposed relying primarily, or even exclusively, on property in determining the …

Consensus And Conflict Over Context: Select Criminal Law And Procedure Cases From The Supreme Court's 2024-25 Term, Eve Brensike Primus, Elena Schultz

Articles

In its 2024-2025 Term, the Supreme Court emphasized the utility—and necessity—of context-based, fact-sensitive analyses throughout its criminal law and procedure cases. Though the Justices sparred over how to derive meaning from factual, structural, legal, and historical contexts, they tended to agree that courts should not be artificially restricted from considering the breadth of the record before them.

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 …

Remedying Unconstitutional Immigration Enforcement, Guha Krishnamurthi

Cardozo Law Review de•novo

Fearmongering about “illegal immigration” has reached a fever pitch. There is a nearing bipartisan consensus among politicians that “stopping illegal immigration and securing the border” is a paramount priority. The fact that many politicians and institutional actors have displayed animus in discussing immigration enforcement portends that many perils lie ahead. It is precisely during this time that constitutional rights must serve as a bulwark against government overreach. This Essay contends that our constitutional rights framework, specifically its principal remedies for rights violations, are inadequate to protect against government malfeasance. In particular, I demonstrate that there are plausible scenarios where the …

Imperfect Protection Against Perfect Enforcement: When Procedure Is Not Enough, William S. Fallon

Connecticut Law Review

Government technology that exclusively detects illegal conduct is per se constitutional. Today, the Fourth Amendment provides no protection—zero—against government technology that identifies illegality without also revealing private, innocent behavior.

Meanwhile, alarmingly, government is rapidly developing—and deploying— technology that bypasses the need to examine private, innocent behavior in its detection of wrongdoing. Government can know there is contraband in your bedroom drawer without the need to rummage through that drawer, your home, or any of your private information and possessions. Government can know there is illegal content on your phone without the need to search through that phone or any of …

Computationally Assessing Suspicion, Wesley M. Oliver

Law Faculty Publications

Law enforcement officers performing drug interdiction on interstate highways have to decide nearly every day whether there is reasonable suspicion to detain motorists until a trained dog can sniff for the presence of drugs. The officers’ assessments are often wrong, however, and lead to unnecessary detentions of innocent persons and the suppression of drugs found on guilty ones. We propose a computational method of evaluating suspicion in these encounters and offer experimental results from early efforts demonstrating its feasibility. With the assistance of large language and predictive machine learning models, it appears that judges, advocates, and even police officers could …

Big Data Searches And The Future Of Criminal Procedure, Mary Fan

Articles

This Article proceeds in three parts. Part I illuminates the nostalgic Luddism that influences Fourth Amendment jurisprudence and the challenges posed by evolving technologies to this dominant lens. This Part explains the operation of geofence and keyword warrants and how their power to crack cold cases by unidentified perpetrators both tempt and terrify. The confusion in the courts over the constitutionality of geofence and keyword warrants is emblematic of the larger challenges of the Romantic Luddism in Fourth Amendment originalism that has grown in influence over the decades.

Part II frames and theorizes the concepts of collateral impact and collateral …

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

Unshielded: How The Police Can Become Touchable, Brandon Hasbrouck

Scholarly Articles

This Review proceeds in three Parts. First, Part I examines Shielded’s text, highlighting Schwartz’s analysis of the problem of unaccountable police, the many barriers to holding police accountable, and her proposed solutions. Part II then critically examines Schwartz’s work, examining pieces of the problem she left undiscussed and the relative shortcomings of her discussion of possible solutions. Finally, Part III takes an abolitionist approach, delving into potential nonreformist reforms and the solution of full abolition, as well as examining the most significant objection to abolitionist approaches: the problem of violence.

Crowdsourcing Surveillance, Chaz Arnett

Faculty Scholarship

In Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Devon W. Carbado illuminates how both the spectacular and quotidian forms of racialized terror, brutality, and surveillance—characteristic of enslavement—have shaped the construction of our constitutional order. He argues that the combined social normalization and legal naturalization of racial hierarchy paved the way for the development of slave patrols and other early iterations of policing where incredible acts of violence against Black bodies were made ordinary and essential. He explains how this legacy continues today with Fourth Amendment jurisprudence not simply failing to protect rights but rather licensing police violence …

Arrests: Legal And Illegal, Daniel Yeager

Faculty Scholarship

The Fourth Amendment prohibits unreasonable searches and seizures. An arrest—manifesting a police intention to transport a suspect to the stationhouse for booking, fingerprinting, and photographing—is a mode of seizure. Because arrests are so intrusive, they require roughly a fifty percent chance that an arrestable offense has occurred. Because nonarrest seizures (aka Terry stops), though no “petty indignity,” are less intrusive than arrests, they require roughly just a twenty-five percent chance that crime is afoot. Any arrest not supported by probable cause is illegal. It would therefore seem to follow that any arrest supported by probable cause is legal. But it …