Fourth Amendment Commons^™

Sense-Enhanced Searches And The Irrelevance Of The Fourth Amendment, David E. Steinberg

William & Mary Bill of Rights Journal

No abstract provided.

One Stop, No Stop, Two Stop, Terry Stop: Reasonable Suspicion And Pseudoephedrine Purchases By Suspected Methamphetamine Manufacturers, Andrew C. Goetz

Michigan Law Review

This Note attempts to inject some clarity into courts' reasonable suspicion calculus for cold medicine purchases. It argues that the key factor in analyzing such purchases is whether the purchaser or purchasers appear to be circumventing pseudoephedrine purchasing restrictions in order to obtain inordinately large quantities of pseudoephedrine. Part I provides a general background on the domestic manufacture of methamphetamine in small, clandestine laboratories. Part II then examines the interplay between outward innocence and reasonable suspicion under the Supreme Court's Fourth Amendment jurisprudence. Finally, Part III establishes a framework for identifying purchasing strategies that methamphetamine manufacturers commonly use to circumvent …

Excluding The Exclusionary Rule: Extending The Rationale Of Hudson V. Michigan To Evidence Seized During Unauthorized Nighttime Searches, Jeffiy R. Gittins

BYU Law Review

No abstract provided.

The Liberal Assault On The Fourth Amendment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

As construed by the Supreme Court, the Fourth Amendment's reasonableness requirement regulates overt, non-regulatory government searches of homes, cars, and personal effects-and virtually nothing else. This essay is primarily about how we got to this point. It is fashionable to place much of the blame for today's law on the Warren Court's adoption of the malleable expectation of privacy concept as the core value protected by the Fourth Amendment. But this diagnosis fails to explain why even the more liberal justices have often gone along with many of the privacy-diminishing holdings of the Court. This essay argues that three other …

Students' Fourth Amendment Rights And The Federal Judgeship: Examining The Link Between Political Appointments And Case Outcomes, Mario S. Torres Jr., Jacqueline Stefkovich

Brigham Young University Education and Law Journal

No abstract provided.

Echelon's Effect: The Obsolescence Of The U.S. Foreign Intelligence Legal Regime, Matt Bedan

Federal Communications Law Journal

The technological progress of the past thirty years has vastly increased the surveillance capabilities of the global intelligence community. At the same time, the law governing the use of this technology and its consequent information has remained largely static. This lack of adjustment, for better or worse, has rendered federal foreign intelligence surveillance law irrelevant in many respects.

Standing Room Only: Why Fourth Amendment Exclusion And Standing Can No Longer Logically Coexist, Sherry F. Colb

Cardozo Law Review

No abstract provided.

Standing Room Only: Why Fourth Amendment Exclusion And Standing Can No Longer Logically Coexist, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

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 …

Wiretapping And Eavesdropping: Surveillance In The Internet Age, 3rd Ed., Anne T. Mckenna, Clifford S. Fishman

Books

The third edition of the seminal “Fishman & McKenna” Wiretapping treatise analyzes federal and state law and the rapidly evolving civil and criminal legal issues and privacy issues surrounding the Internet, computers, cellular devices, electronic location tracking, drones, and biometrics. Since its publication, this treatise has been cited in multiple published federal and state judicial opinions, including by the United States Court of Appeals for the Seventh Circuit in August 2010 and the United States Court of Appeals for the Fifth Circuit in August 2014. The third edition is a well-known resource for attorneys working in private practice and in …

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

Journal Articles

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 …

There Is No Place Like Home: The Supreme Court's Refusal To Allow Searches Of The Home Based On Disputed Consent In Georgia V. Randolph, Kyle Evans

Oklahoma Law Review

No abstract provided.

The Bush Administration's Terrorist Surveillance Program And The Fourth Amendment's Warrant Requirement: Lessons From Justice Powell And The Keith Case, Tracey Maclin

UF Law Faculty Publications

This article was written for a symposium issue of the University of California at Davis Law Review on the fortieth anniversary of Katz v. United States. The article analyzes the Bush Administration's claim that the President has the authority to order warrant less electronic surveillance of communications between American citizens and persons abroad suspected of having connections with foreign terrorists groups. When evaluating this claim, my article focuses on a case that could be characterized as more constitutionally robust and stronger Katz. That case is United States v. United States District Court, also known as Keith. The Keith ruling held …

Fourth Amendment Lessons From The Highway And The Subway: A Principled Approach To Suspicionless Searches, Ricardo J. Bascuas

Articles

The threat of future terrorist attacks has sped the proliferation of random, suspicionless searches and seizures, such as those now made of New York City subway riders. Courts assess the legality of such searches with an inherently flawed balancing test developed to assess searches and seizures made without "probable cause." Although scholars and Justices alike have decried the resort to balancing individual interests against the government's need to search, no alternative framework has been proposed. This Article proposes a more principled, objective inquiry for determining when suspicionless searches can be made. To eliminate the need for balancing, this Article advances …

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 …

Section 1983 Civil Rights Litigation In The October 2005 Term, Martin Schwartz

Touro Law Review

No abstract provided.

Home Sweet Home?! Maybe Not For Parolees And Probationers When It Comes To Fourth Amendment Protection, David M. Stout

Kentucky Law Journal

No abstract provided.

There's No Place Like Home - Except When You Are Under Arrest: The Third Circuit's Analysis Of Home Arrests In United States V. Veal, Kristin S. Mckeon

Villanova Law Review (1956 - )

No abstract provided.

Disappearing Safeguards: Fisa Nonresident Alien "Loophole" Is Unconstitutional, Brenton Hund

Cardozo Journal of International and Comparative Law

The note argues that the Foreign Intelligence Surveillance Act (FISA) contains a "nonresident alien loophole" that undermines constitutional protections, particularly for U.S. persons. This loophole, expanded by amendments such as the Patriot Act and the Lone Wolf Amendment, allows the government to conduct surveillance on nonresident aliens under relaxed standards, which can incidentally target U.S. citizens without meeting FISA's stricter requirements. The analysis contends that this loophole violates the Fourth Amendment by enabling surveillance on U.S. persons without probable cause or proper warrants, eroding privacy rights in the name of national security. The note advocates for legislative reforms to close …

The Spirit Of 1968: Toward Abolishing Terry Doctrine, Frank Rudy Cooper

Scholarly Works

In this essay, Professor Frank Rudy Cooper summarizes how the Terry opinion's refusal to apply the probable cause standard made Fourth Amendment doctrine more conservative. He then suggests that the result has gone largely unchallenged because whites have been willing to trade decreases in the civil liberties of blacks for perceived increases in crime control. Prof Cooper concludes by calling on us to consider returning to the spirit of the beginning of 1968 by abolishing Terry doctrine.

The Physics Of Fourth Amendment Privacy Rights, Omar Saleem

Journal Publications

Einstein's esteem for theoretical physics and Dostoyevsky serve as a conduit for this article's discussion about the similarities between the evolution of theoretical physics and the criminal process related to Fourth Amendment privacy rights. Part I of this Article demonstrates that law and science share traits of rationality, a quest for universality, and theoretical evolution. Part II traces the parallel paths of Fourth Amendment privacy rights and theoretical physics. Part III illustrates the radical alterations in theoretical physics created by Einstein's relativity discoveries and the radical alterations in Fourth Amendment privacy rights created by the U.S. Supreme Court's decision in …

Georgia V. Randolph: Whose Castle Is It, Anyway?, Lesley Mccall

University of Richmond Law Review

The Fourth Amendment protects individuals against unreasonable searches and seizures. Generally, a warrant is required to conduct a lawful search of a person's home, and a warrantless search is unreasonable per se. However, there are some exceptions to this requirement. A warrantless search is reasonable if police obtain voluntary consent from a person to search their home or effects. The Supreme Court has also recognized that a third party with common authority over a household may consent to a police search affecting an absent co-occupant. The Supreme Court of the United States recently addressed whether third party consent was effective …

United States V. Scott: Should A Pre-Trial Releasee Be Subject To Fourth Amendment Searches And Seizures Based On Probable Cause Or Reasonable Suspicion?, Gina M. Muccio

Pace Law Review

No abstract provided.

Beyond The (Current) Fourth Amendment: Protecting Third-Party Information, Third Parties, And The Rest Of Us Too, Stephen E. Henderson

Faculty Articles

For at least thirty years the Supreme Court has adhered to its third-party doctrine in interpreting the Fourth Amendment, meaning that so far as a disclosing party is concerned, information in the hands of a third party receives no Fourth Amendment protection. The doctrine was controversial when adopted, has been the target of sustained criticism, and is the predominant reason that the Katz revolution has not been the revolution many hoped it would be. Some forty years after Katz the Court's search jurisprudence largely remains tied to property conceptions. As I have demonstrated elsewhere, however, the doctrine is not the …

Constitutional Law—Fourth Amendment And Search And Seizure—Introducing The Supreme Court's New And Improved Summers Detention: Now Equipped With Handcuffing And Questioning! Muehler V. Mena, 544 U.S. 93 (2005), Ryan J. Caststeel

University of Arkansas at Little Rock Law Review

This note explores the United States Supreme Court's recent decision in Muehler v. Mena that extended the holding in Michigan v. Summers that allows police officers to handcuff and question occupants of a house who are lawfully being detained during the execution of a valid search warrant. First, the note examines the facts behind the Mena case itself. Second, the note explores the historical developments in Fourth Amendments jurisprudence that led up to the Mena decision. This section of the note focuses on the following five main topics: (1) the creation of the Fourth Amendment; (2) the evolution of the …

The Technology Of Surveillance: Will The Supreme Court's Expectations Ever Resemble Society's?, Stephen Henderson

Other Faculty Publications

For law students studying criminal procedure—or at least for those cramming for the exam—it becomes a mantra: government conduct only implicates the Fourth Amendment protection against unreasonable searches if it invades a “reasonable expectation of privacy.” This is not the contemporary definition of the word “search,” nor was it the definition at the time of the founding. But, via a well-intentioned concurrence by Justice Harlan in the famous 1967 case of Katz v. United States, it became the Court’s definition.This lack of fealty to the English language left some questions. For example, is determining whether someone has a “reasonable expectation …

Rethinking The Substantive Due Process Right To Privacy: Grounding Privacy In The Fourth Amendment, Mary H. Wimberly

Vanderbilt Law Review

Little in the jurisprudence of the Supreme Court has spurred as much controversy as the Court's recognition of a constitutional right to privacy. While implicitly acknowledging that such a right is not listed in the text of the Constitution, in Griswold v. Connecticut the Court found that the right existed in the "penumbras" of the amendments to the Constitution.' According to the Court, the right to privacy was present in "emanations" from the guarantees of the Bill of Rights. This reasoning was notoriously extended to abortion in Roe v. Wade. In order to invalidate state regulation of abortion, the Roe …

The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia

Journal Articles

This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …