Fourth Amendment Commons^™

Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe

Scholarly Articles in Law Reviews & Journals

his is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

The Need To Overrule Mapp V. Ohio, William T. Pizzi

Publications

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious …

Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

"You Crossed The Fog Line!"—Kansas, Pretext, And The Fourth Amendment, Melanie D. Wilson

Scholarly Articles

In Whren, the United States Supreme Court sanctioned pretextual traffic stops. In practice the holding of Whren condones police investigations that target certain suspect classes of people, like Hispanics, for increased police scrutiny. In permitting pretextual stops, the Court ignored the risk that such practices will encourage police to distort the truth, overlooked the cost of under-enforcement of the laws, and ignored the consequences to the criminal justice system of race and ethnicity based discrimination.

Kansas law exacerbates these risks by making fog-line stops a model for protecting ulterior motives from a sifting judicial inquiry. In Kansas, it makes …

Mapp V. Ohio's Unsung Hero: The Suppression Hearing As Morality Play, Scott E. Sundby

Articles

No abstract provided.

Mapp V. Ohio Revisited: A Law Clerk's Diary, Polly J. Price

Faculty Articles

The 1960 Supreme Court Term laid the groundwork for the subsequent revolution in the relationship between state and federal law accomplished by the Supreme Court under Chief Justice Earl Warren. The "most famous search and seizure case in American history" - Mapp v. Ohio - would be decided that Term. Mapp held that the Fourth Amendment's protection against "unreasonable searches and seizures" required the exclusion of evidence found through an illegal search by state and local police officers, extending to the states a rule that had previously applied only to federal law enforcement. Mapp became a pivotal chapter in the …

Mapp V. Ohio'S Unsung Hero: The Suppression Hearing As Morality Play, Scott E. Sundby

Chicago-Kent Law Review

The exclusionary rule is back under the judicial magnifying glass. Recent opinions, most notably by Justice Scalia, have sparked speculation that the Roberts Court is inclined to overrule Mapp v. Ohio and send Fourth Amendment disputes back to the realm of civil suits and police disciplinary actions. As the Court's rulings have made clear, any reevaluation of the exclusionary rule's future will be conducted under the now familiar rubric of whether the rule's "benefit" of deterring police misbehavior outweighs the "cost" of lost evidence and convictions.

This essay argues that if any such reevaluation does occur, the Court must take …

Fourth Amendment Federalism And The Silencing Of The American Poor, Andrew E. Taslitz

Chicago-Kent Law Review

In Virginia v. Moore, police officers searched Moore incident to an arrest for a minor traffic infraction for which Virginia statutory law in fact prohibited arrest. The officers found cocaine on Moore's person, arresting him for that crime too. The United States Supreme Court ultimately found that the arrest for the traffic infraction and the subsequent search were valid under the federal Constitution's Fourth Amendment. Central to the Court's reasoning was its insistence that the state statute was irrelevant. Any contrary conclusion, explained the Court, would wrongly make the Fourth Amendment's meaning vary from place to place. Professor Taslitz …

Replacing The Exclusionary Rule: Fourth Amendment Violations As Direct Criminal Contempt, Ronald J. Rychlak

Chicago-Kent Law Review

The exclusionary rule, which bars from admission evidence obtained in violation of the Fourth Amendment's prohibition of unreasonable searches and seizures, is a bedrock of American law. It is highly controversial, but there seems to be no equally effective way to protect citizens' rights. This paper proposes that an admissibility standard be adopted that is in keeping with virtually every jurisdiction around the world other than the United States. Thus, before ruling evidence inadmissible, the court would consider the level of the constitutional violation, the seriousness of the crime, whether the violation casts substantial doubt on the reliability of the …

The Fourth Amendment, The Exclusionary Rule, And The Roberts Court: Normative And Empirical Dimensions Of The Over-Deterrence Hypothesis, Donald Dripps

Chicago-Kent Law Review

This essay engages in the risky business of predicting future Supreme Court developments. In the first part, I analyze the evidence suggesting that the Roberts Court might abolish the exclusionary rule. The critique of exclusion in Hudson v. Michigan is both less and more probative than appears at first blush. Part II turns to some less obvious evidence pointing in the direction of retaining the exclusionary rule. First, abolition of the exclusionary rule is inconsistent with the Hudson majority's apparent content with prevailing police behavior. Second, abolition of the exclusionary rule would curtail the power of the Supreme Court. Part …

Big Bill Haywood's Revenge: The Original Intent Of The Exclusionary Rule, Milton Hirsch

St. Thomas Law Review

We have been given fair warning. In two recent cases, Hudson v. Michigan and Herring v. United States, the Supreme Court made clear its desire to phase out the Fourth Amendment exclusionary rule - that century-old ornament of constitutional jurisprudence pursuant to which evidence obtained in violation of a defendant's right to be free from unreasonable search and seizure will not be received in court. Justice Scalia, writing for a bare majority in Hudson, argued that the utility, if any, of the exclusionary rule has run its course; and that the rule itself is better supplanted by alternative means of …

Islam's Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Articles & Chapters

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the FourthAmendment 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 of …

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 …

What Is "Blowing In The Wind"? Reopening The Exclusionary Rule Debate, John B. Rayburn

West Virginia Law Review

No abstract provided.

Reflections On Standing: Challenges To Searches And Seizures In A High Technology World, José F. Anderson

All Faculty Scholarship

Among the profound issues that surround constitutional criminal procedure is the obscure often overlooked issue of who has standing to challenge an illegal search, seizure or confession. Privacy interests are often overlooked because without a legal status that allows a person to complain in court, there is no way to challenge whether one is constitutionally protected from personal invasions. Standing is that procedural barrier often imposed to prevent a person in a case from objecting to improper police conduct because of his or her relationship of ownership, proximity, location, or interest in an item searched or a thing seized. Although …

Mapp V. Ohio: The First Shot Fired In The Warren Court's Criminal Procedure 'Revolution', Yale Kamisar

Book Chapters

Although Earl Warren ascended to the Supreme Court in 1953, when we speak of the Warren Court's "revolution" in American criminal procedure we really mean the movement that got underway half-way through the Chief Justice's sixteen-year reign. It was the 1961 case of Mapp v. Ohio, overruling Wolf v. Colorado and holding that the state courts had to exclude illegally seized evidence as a matter of federal constitutional law, that is generally regarded as having launched the so-called criminal procedure revolution.

How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar

Articles

Before becoming governor of California, Earl Warren had spent his entire legal career, twenty-two years, in law enforcement. Professor Kamisar maintains that this experience significantly influenced Warren's work as a Supreme Court justice and gave him a unique perspective into police interrogation and other police practices. This article discusses some of Warren's experiences in law enforcement and searches for evidence of that experience in Warren's opinions. For example, when Warren was head of the Alameda County District Attorney's Office, he and his deputies not only relied on confessions in many homicide cases but also themselves interrogated homicide suspects. The seeds …

In Defense Of The Search And Seizure Exclusionary Rule (Law And Truth - The Twenty-First Annual National Student Federalist Society Symposium On Law And Public Policy - 2002), Yale Kamisar

Articles

think Dean Pye's advice about casebook writing was sound,6 and what he had to say also applies to discussions and debates about such issues as the search and seizure exclusionary rule. We cannot (at least we should not) begin with Mapp v. Ohio. We need a prelude.

The Poverty Exception To The Fourth Amendment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This essay, written for the Sixth Annual LatCrit conference, explores the subterranean motifs of current rules regulating searches and seizures by the police. More specifically, it investigates whether and to what extent alienage, race and poverty influence the warrant and individualized suspicion rules purportedly governing police investigation. The essay begins by showing that, contrary to the assertion of other conference participants, Supreme Court doctrine has not created a "Mexican exception" to the Fourth Amendment (as distinguished from an "illegal alien" exception, which does seem to exist). The main focus of the article, however, is an examination of whether the Court's …

The Writings Of John Barker Waite And Thomas Davies On The Search And Seizure Exclusionary Rule, Yale Kamisar

Articles

After browsing through many volumes of the Michigan Law Review, searching for the article I would discuss on the occasion of the law review's 100th anniversary, I wound up with two "finalists": a 1955 article by Professor John Barker Waite on the law of arrest search and seizure (on further reflection, four Michigan Law Review commentaries on the general subject written by Waite between 1933 and 1955)' and a monumental 200-page article (surely one of the longest articles ever to appear in the Michigan Law Review) by Thomas Davies on the "original Fourth Amendment. 2

The Paths Not Taken: The Supreme Court's Failures In Dickerson, Paul G. Cassell

Michigan Law Review

Where's the rest of the opinion? That was my immediate reaction to reading the Supreme Court's terse decision in Dickerson, delivered to me via email from the clerk's office a few minutes after its release. Surely, I thought, some glitch in the transmission had eliminated the pages of discussion on the critical issues in the case. Yet, as it became clear that I had received all of the Court's opinion, my incredulity grew.

Miranda'S Mistake, William J. Stuntz

Michigan Law Review

The oddest thing about Miranda is its politics - a point reinforced by the decision in, and the reaction to, Dickerson v. United States. In Dickerson, the Supreme Court faced the question whether Miranda ought to be overturned, either directly or by permitting legislative overrides. The lawyers, the literature, and the Court split along right-left - or, in the Court's case, right-center - lines, with the right seeking to do away with Miranda's restrictions on police questioning, and the left (or center) seeking to maintain them. The split is familiar. Reactions to Miranda have always divided along ideological lines, with …

Accountability Solutions In The Consent Search And Seizure Wasteland, José F. Anderson

All Faculty Scholarship

The legal and social issues that have emerged out of the doctrine that people in America have a right against unreasonable government instituted searches and seizures have dominated the dialogue and controversy in the American criminal justice system over the last three decades. A large portion of the debate has centered around the controversial exclusionary rule, which frees the sometimes unmistakably guilty because of irregularities in police procedure.

The notion that society suffers when criminals go free because of the constable's blunder has struck a decidedly political note in the discussion over criminal justice reform. Many observers are quick to …

Crimes And Errors Impossible To Commit: Defining Away The Fourth Amendment - Wyoming V. Houghton, Rachel Gader-Shafran

Cleveland State Law Review

This Note contends that the Court's decision to adopt the Houghton approach to the automobile warrant exception is problematic for three reasons. First, the Court has erroneously interpreted the historical evidence behind the creation of the Fourth Amendment. Second, the Court, by chipping away at stare decisis, is disrupting the foundations of American jurisprudence and the development of the law. Third, by creating a new lexicon, changing the meanings of the words, the Court is trying to define away the protections afforded by the Fourth Amendment. This Note will briefly summarize the facts of Houghton and review the historical purpose …

Why Liberals Should Chuck The Exclusionary Rule, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article makes the case against the exclusionary rule from a "liberal" perspective. Moving beyond the inconclusive empirical data on the efficacy of the rule, it uses behavioral and motivational theory to demonstrate why the rule is structurally unable to deter individual police officers from performing most unconstitutional searches and seizures. It also argues, contrary to liberal dogma, that the rule is poor at promoting Fourth Amendment values at the systemic, departmental level. Finally, the article contends that the rule stultifies liberal interpretation of the Fourth Amendment, in large part because of judicial heuristics that grow out of constant exposure …

What's In A Word? A Comparative Analysis Of Article I, § 12 Of The New York State Constitution And The Fourth Amendment To The United States Constitution As Interpreted By The New York Court Of Appeals And The United States Supreme Court, Douglas Holden Wigdor

Touro Law Review

No abstract provided.

Computers, Urinals, And The Fourth Amendment: Confessions Of A Patron Saint, Wayne R. Lafave

Michigan Law Review

At least the title indicates that the article is somehow concerned with "the Fourth Amendment," though for anyone who knows me or is at all familiar with my work, that piece of information hardly would come as a revelation. The fact of the matter is that I almost always write about the Fourth Amendment; I am in an academic rut so deep as to deserve recognition in the Guinness Book World of Records. Search and seizure has been my cheval de bataille during my entire time as a law professor and even when I was a mere law student. …

Searches And Seizures

Touro Law Review

No abstract provided.

The Rights Of The Accused In A 'Crime Crisis', Yale Kamisar

Book Chapters

"I grieve for my country to say that the administration of the criminal law in all the states in the Union (there may be one or two exceptions) is a disgrace to our civilization .... The institution of trial by jury has come to be regarded as such a fetish in our country that state legislatures have exalted the power of the jury and diminished the power of the court .... The counsel for the defense, relying on the diminished power of the court, creates, by dramatic art and by harping on the importance of unimportant details, a false atmosphere …

The Court And The Changing Constitution: A Discussion, Carl Sividorski, James Gardner, Barry Latzer, Peter Galie

Touro Law Review

No abstract provided.