Fourth Amendment Commons^™

Dna And Distrust, Kerry Abrams, Brandon L. Garrett

Notre Dame Law Review

Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identification testing. The U.S. Supreme Court in …

Duty Of Candor In The Digital Age: The Need For Heightened Judicial Supervision Of Stingray Searches, Andrew Hemmer

Chicago-Kent Law Review

This Note explores the constitutional implications of the use of a device known as the “Stingray” in criminal investigations. This device masquerades as a cell phone tower and forces all cell phones within a considerable range to connect to it, transmitting data and allowing law enforcement to ascertain the location of each cell phone. The use of Stingrays raises important Fourth Amendment concerns that have been brought to light most significantly by the 2008 federal prosecution of Daniel Rigmaiden. This Note argues that Stingray use constitutes a Fourth Amendment search and that a new standard of warrant requirements is needed …

Riley V. California And The Stickiness Principle, Steven I. Friedland

Duke Law & Technology Review

In Fourth Amendment decisions, different concepts, facts and assumptions about reality are often tethered together by vocabulary and fact, creating a ‘Stickiness Principle.’ In particular, form and function historically were considered indistinguishable, not as separate factors. For example, “containers” carried things, “watches” told time, and “phones” were used to make voice calls. Advancing technology, though, began to fracture this identity and the broader Stickiness Principle. In June 2014, Riley v. California and its companion case, United States v. Wurie, offered the Supreme Court an opportunity to begin untethering form and function and dismantling the Stickiness Principle. Riley presented the question …

Recent Development: Varriale V. State: The State May Store And Use A Voluntarily Provided Dna Sample And Resultant Profile For Any Future Criminal Investigations, Unless The Suspect Provides An Express Limitation, C. Harris Schlecker

University of Baltimore Law Forum

The Court of Appeals of Maryland held that when a suspect does not expressly limit consent to DNA testing, the Fourth Amendment does not prevent the State from storing and using his voluntarily provided DNA in later, unrelated criminal investigations.

Rfid Implementation: Testing In Prisons And Parolees For The Greater Good, 33 J. Marshall J. Info. Tech. & Privacy L. 22 (2016), Mirko Akrap

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Flagrant Police Abuse: Why Black Lives (Also) Matter To The Fourth Amendment, Joelle A. Moreno

Faculty Publications

No abstract provided.

What's In The Box? Re-Conceptualizing Computers As Containers, Metadata As Contents Of That Container, And Applying Fourth Amendment Protections, Christopher Michels

Criminal Law Practitioner

No abstract provided.

Fourth Amendment Implications Of Police-Worn Body Cameras, Erik Nielsen

St. Mary's Law Journal

Abstract forthcoming.

Civil Arrest? (Another) St. Louis Case Study In Unconstitutionality, Mae Quinn, Eirik Cheverud

Journal Articles

This Article advances a simple claim in need of enforcement in this country right now: no person may be arrested for an alleged violation of civil, as opposed to criminal, law. Indeed, courts have long interpreted the Fourth Amendment as prohibiting arrest except when probable cause exists to believe that a crime has been committed and that the defendant is the person who committed the crime. However, in many places police take citizens into custody without a warrant for the non-criminal conduct of allegedly breaking civil laws. This unfortunate phenomenon received national attention in St. Louis, Missouri following the death …

Never Alone: Why The Inevitable Influx Of Drones Necessitates A New Fourth Amendment Standard That Adequately Protects Reasonable Expectations Of Privacy, Paul Burgin

University of Baltimore Law Review

In June 2011, North Dakota cattle rancher Rodney Brossart became the first American to be arrested with the aid of a drone (Unmanned Aircraft System(s) or UAS) operated by law enforcement. Six cows found their way onto Brossart's property, and he refused to turn them over to law enforcement officials. Brossart and a few family members chased police officers off of his property at gunpoint, and police later returned with a warrant and SWAT team. A sixteen-hour standoff ensued until police called in the assistance of a UAS to pinpoint Brossart's exact location. Shortly thereafter, SWAT officers rushed in, tased, …

To Catch A Terrorist: The Improper Use Of Profiling In U.S. Post-9/11 Counterterrorism, Kamillia Crawford

Honors Undergraduate Theses

The attacks of September 11, 2001 (9/11) caused thousands of deaths, national and global panic, and immediate action by the federal government to protect the borders of the United States of America (USA) from terrorism. In response to these attacks, the United States (U.S.) government enacted laws for law enforcement agencies to protect against terrorist activities. Law enforcement agencies are effective in combating terrorism, but their measures contain a major flaw - the improper use of race in profiling to address national security and public safety concerns. Racial profiling is an ineffective measure for preventing terrorism. There are solutions to …

Search Incident To Probable Cause?: The Intersection Of Rawlings And Knowles, Marissa Perry

Michigan Law Review

The search incident to arrest exception authorizes an officer to search an arrestee’s person and his or her area of immediate control. This exception is based on two historical justifications: officer safety and evidence preservation. While much of search incident to arrest doctrine is settled, tension exists between two Supreme Court cases, Rawlings v. Kentucky and Knowles v. Iowa, and a crucial question remains unanswered: Must an officer decide to make an arrest prior to commencing a search? In Rawlings, the Supreme Court stated that a search may precede a formal arrest if the arrest follows quickly thereafter. In Knowles, …

Arbitrary Law Enforcement Is Unreasonable: Whren's Failure To Hold Police Accountable For Traffic Enforcement Policies, Jonathan Witmer-Rich

Law Faculty Articles and Essays

Whren v. United States is surely a leading contender for the most controversial and heavily criticized Supreme Court case that was decided in a short, unanimous opinion. The slip opinion is only thirteen pages long, and provoked no dissents or even concurring opinions. Critical reaction has been overwhelmingly negative. Criticism not withstanding, the Court has not retreated from Whren, but continues to repeat its core holding.

Part I frames the problem in Whren with a story. Part II sets forth the fundamental Fourth Amendment principle underlying this article—the prohibition against arbitrary search and seizure. Part III explains how arbitrariness …

Anthony Amsterdam's Perspectives On The Fourth Amendment, And What It Teaches About The Good And Bad In Rodriguez V. United States, Tracey Maclin

UF Law Faculty Publications

Anthony Amsterdam’s article, Perspectives On The Fourth Amendment is one of the best, if not the best, law review article written on the Fourth Amendment. Thus, Minnesota Law Review on its hundredth anniversary fittingly recognizes and honors Professor Amsterdam’s article in its Symposium edition, “Standing on the Shoulders of Giants: Celebrating 100 Volumes of the Minnesota Law Review.” I am flattered that the Law Review invited me to participate in this Symposium. Specifically, my article connects two perspectives from Amsterdam’s article — the Fourth Amendment’s concern with discretionary police power and the Framers’ vision of the Fourth Amendment to bar …

For The Protection Of Society's Most Vulnerable, The Ada Should Apply To Arrests, Thomas J. Auner

Loyola of Los Angeles Law Review

No abstract provided.

Ignorance Of The Law Is No Excuse—Unless You’Re A Cop, Hannah Dunn

Loyola of Los Angeles Law Review

No abstract provided.

Post Quon: An Analysis Of The Evolution Of New Media And The Employment Relationship, John H. Shannon, Susan A. O’Sullivan-Gavin

Journal of Business & Technology Law

No abstract provided.

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Articles

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. The original constitutional taint disappears in the wash.

Courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. …

The Big Picture View Of Anonymous Tips From Ordinary People, Amanda M. Dadiego

Touro Law Review

No abstract provided.

When The Police Get The Law Wrong: How Heien V. North Carolina Further Erodes The Fourth Amendment, Vivan M. Rivera

Loyola of Los Angeles Law Review

No abstract provided.

Constitutional Law: Hey, That's My Trash! Warrantless Searches Of Garbage Under The Minnesota Constitution—State V. Mcmurray, Lauren M. Hoglund

Mitchell Hamline Law Review

No abstract provided.

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Journal Articles and Book Chapters

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears in the wash.

In the years since Herring was decided, courts have allowed evidence laundering in a …

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson, Stephen E. Henderson

Faculty Articles

What is the constitutional significance of the proverbial “keep off the grass” sign? This question—asked by curmudgeonly neighbors everywhere—has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding—and control over—access to property, “the people” may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education and empowerment: Fourth Amendment LAWn signs. With every …

A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson

Faculty Articles

In Other People’s Papers, Jane Bambauer argues for careful reform of the Fourth Amendment’s third party doctrine, providing an important contribution to an increasingly rich field of scholarship, judicial opinion, statute, and law reform. Bambauer is especially concerned with access to bodies of third-party data that can be filtered and mined, as they can be privacy invasive but also effective and less subject to traditional investigative prejudices and limitations. Although her article provocatively overclaims in trying to set itself apart from existing proposals, by analyzing existing constitutional and statutory law—including what I have termed a “limited” third party doctrine—and comparing …

Teaching Criminal Procedure: Why Socrates Would Use Youtube, Stephen E. Henderson, Joseph Thai

Faculty Articles

In this invited contribution to the Law Journal's annual Teaching Issue, we pay some homage to the great philosopher whose spirit allegedly guides our classrooms, in service of two concrete goals. One, we employ dialogue to describe the “nuts and bolts” of teaching Criminal Procedure, most of which are equally relevant to any doctrinal law school course (including course description, office hours, seating charts and attendance, class decorum and recording, student participation, laptops, textbooks, class preparation and presentation, and exams). Two, we explain the benefits of using multimedia in the classroom, including a few of the many modules found on …

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Faculty Articles

When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those big data records not only store our past, but thanks to data mining they are in many circumstances eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully different …

What's Fear Got To Do With It?: The "Armed And Dangerous" Requirement Of Terry, Gerald S. Reamey

Marquette Law Review

Rarely has a court’s opinion, even one from the Supreme Court of the United States, so altered existing notions of constitutional criminal procedure law as did the opinion in Terry v. Ohio. On several levels, the opinion dramatically shifted the way in which the Fourth Amendment was understood. Law students who had learned about the probable cause “requirement” and the warrant “requirement” were surprised to learn, especially in the case of the former, that these “requirements” were not required at all. To continue to conceptualize the Fourth Amendment’s single sentence guarantees as consisting of a “warrant clause” and a “reasonableness” …

The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports

Faculty Scholarship

This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.

In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question …

Heien'S Mistake Of Law, Kit Kinports

Faculty Scholarship

The Supreme Court has been whittling away at the Fourth Amendment for decades. The Court's 2014 ruling in Heien v. North Carolina allowing the police to make a traffic stop based on a reasonable mistake of law generated little controversy among the Justices and escaped largely unnoticed by the press-perhaps because yet another Supreme Court decision reading the Fourth Amendment narrowly is not especially noteworthy or because the opinion's cursory and overly simplistic analysis equating law enforcement's reasonable mistakes of fact and law minimized the significance of the Court's decision. But the temptation to dismiss Heien as just another small …

Policing Criminal Justice Data, Wayne Logan, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

This article addresses a matter of fundamental importance to the criminal justice system: the presence of erroneous information in government databases and the limited government accountability and legal remedies for the harm that it causes individuals. While a substantial literature exists on the liberty and privacy perils of large multi-source data assemblage, often termed "big data," this article addresses the risks associated with the collection, generation and use of "small data" (i.e., individual-level, discrete data points). Because small data provides the building blocks for all data-driven systems, enhancing its quality will have a significant positive effect on the criminal justice …