Fourth Amendment Commons^™

Bulk Biometric Metadata Collection, Margaret Hu

Scholarly Articles

Smart police body cameras and smart glasses worn by law enforcement increasingly reflect state-of-the-art surveillance technology, such as the integration of live-streaming video with facial recognition and artificial intelligence tools, including automated analytics. This Article explores how these emerging cybersurveillance technologies risk the potential for bulk biometric metadata collection. Such collection is likely to fall outside the scope of the types of bulk metadata collection protections regulated by the USA FREEDOM Act of 2015. The USA FREEDOM Act was intended to bring the practice of bulk telephony metadata collection conducted by the National Security Agency (“NSA”) under tighter regulation. In …

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Policing The Prosecutor: Race, The Fourth Amendment, And The Prosecution Of Criminal Cases, Renee Mcdonald Hutchins

Journal Articles

As this article explores, while the Fourth Amendment is commonly criticized for the discretion it affords police officers, an overlooked result of the amendment’s lax regulation of the police is the enhanced power it affords prosecutors. Though for a time a warrant was the notional measure of reasonableness, over the last century the Court has crafted several exceptions to that measure to give the police greater leeway during on-the-street encounters. The Court has concurrently retreated from robust application of the exclusionary rule to remedy constitutional violations. These shifts have meant far more predictable wins for the prosecution at the suppression …

Byrd V United States: Unauthorized Drivers Of Rental Cars Have Fourth Amendment Rights? Not As Evident As It Seems, Tracey Maclin

UF Law Faculty Publications

No discerning student of the Supreme Court would contend that Justice Anthony Kennedy broadly interpreted the Fourth Amendment during his thirty years on the Court. His majority opinions in Maryland v. King, Drayton v. United States and his willingness to join the three key sections of Justice Scalia’s opinion in Hudson v. Maryland, which held that suppression is never a remedy for knock-and-announce violations, are just a few examples of Justice Kennedy’s narrow view of the Fourth Amendment. In light of his previous votes in search and seizure cases, surprisingly Justice Kennedy, in what would be his final Fourth Amendment …

Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin

Faculty Articles

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …

County Of Los Angeles V. Mendez: Defending The Constitutionality Of The "Provocation Rule", Layla Bishara

Loyola of Los Angeles Law Review

No abstract provided.

Blood On Their Hands: What Minnesota Authorities Can Do With Broad Warrants For Blood Draw Testing—State V. Fawcett, Matthew Porter

Mitchell Hamline Law Review

No abstract provided.

Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf

Scholarly Works

This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single …

State V. Hill, Nazariy Gavrysh

NYLS Law Review

No abstract provided.

Fourth Amendment Anxiety, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information can be cause for “anxiety,” meriting constitutional protection, even if subsequent uses of the information are tightly restricted. This change is significant. While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing. Beyond offering a careful reading of Birchfield, this Article has two goals. First, …

Katz V. United States: Back To The Future?, Michael Vitiello

University of Richmond Law Review

No abstract provided.

United States V. Ammons, Rebecca Ruffer

NYLS Law Review

No abstract provided.

A Descriptive Analysis Of The Fourth Amendment And The Third-Party Doctrine In The Digital Age, Lawrence J. Trautman, Peter Ormerod

Faculty Publications

There are few areas of constitutional law that raise scholars’ ire and trouble jurists like the Fourth Amendment’s third-party doctrine. Making sense of the Court’s distinctions between content and metadata and between personal communications and business records was already difficult with physical documents and analog technologies. But the proliferation of digital technologies has rendered obsolete the factual predicates underpinning those distinctions, and courts have struggled mightily with adapting third-party rules forged over thirty years ago to new technologies.

At the same time, the Supreme Court has become more explicit in fashioning distinct Fourth Amendment rules for digital 74 ALB. L.J. …

Body Cameras And The Path To Redeem Privacy Law, Woodrow Hartzog

Faculty Scholarship

From a privacy perspective, the movement towards police body cameras seems ominous. The prospect of a surveillance device capturing massive amounts of data concerning people’s most vulnerable moments is daunting. These concerns are compounded by the fact that there is little consensus and few hard rules on how and for whom these systems should be built and used. But in many ways, this blank slate is a gift. Law and policy makers are not burdened by the weight of rules and technologies created in a different time for a different purpose. These surveillance and data technologies will be modern. Many …

Why Courts Fail To Protect Privacy: Race, Age, Bias, And Technology, Bernard Chao, Catherine Durso, Ian Farrell, Christopher Robertson

Faculty Scholarship

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If …

The Fallacy Of A Colorblind Consent Search Doctrine, Beau C. Tremitiere

Northwestern University Law Review

Most searches conducted by police officers are “consensual” and thus beyond the reach of the Fourth Amendment. However, such searches violate the Fourth Amendment when, under the totality of circumstances, consent appears to be a product of coercion—that is, when the consent was involuntary. In 1980, in Mendenhall v. United States, the Supreme Court identified race as a relevant factor courts should consider but failed to explain precisely why race was relevant. After decades of mistreatment and state-sanctioned violence, distrust of law enforcement was rampant in communities of color, and the Mendenhall Court correctly intuited (but failed to describe) the …

Going Postal: Analyzing The Abuse Of Mail Covers Under The Fourth Amendment, Julie L. Rooney

Vanderbilt Law Review

Since at least the late 1800s, the United States government has regularly tracked the mail of many of its citizens. In 2014 alone, for example, the government recorded all data on the outside of the mail parcels of over 50,000 individuals via a surveillance initiative known as the mail covers program. In the current age of mass surveillance, this program-like all surveillance initiatives-has grown exponentially. Unbeknownst to most citizens, the government now photographs and records the exterior of each of the roughly 160 billion mail parcels delivered by the USPS every year. Still, despite its ability to allow governmental authorities …

Fbi's Carnivore: Under The Fourth Amendment And The Usa Patriot Act, Scott Griner

Oklahoma Journal of Law and Technology

No abstract provided.

Emailer Beware: The Fourth Amendment And Electronic Mail, E. Parker Lowe

Oklahoma Journal of Law and Technology

No abstract provided.

Digital Effects: The Fourth Amendment And Computer Searches Warrants, Ash Moore

Oklahoma Journal of Law and Technology

No abstract provided.

The Outer Limits: Imsi-Catchers, Technology, And The Future Of The Fourth Amendment, Ryan C. Chapman

Pepperdine Law Review

Recent advances in technology are posing new challenges for a legal system based on decades-old precedent. Nowhere is this more apparent than in law enforcement’s warrantless use of IMSI Catchers. These devices mimic a cell phone tower, and when the device is activated, cell phones will naturally connect to them. Law enforcement officers can use those intercepted cell phone signals to track a suspect’s movements in real time with startling accuracy. Scholarly commentary on these devices has largely concluded that their use requires a warrant. This Comment engages in a close examination of Fourth Amendment precedent and argues that, as …

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Byrd V. U.S. (U.S. June 12, 2017) (No. 16- 1371)., Janet Moore

Faculty Articles and Other Publications

More than two centuries after it was ratified, the Fourth Amendment continues to protect the “right of the people to be secure” from “unreasonable searches.” U.S. Const. amend. IV. Modern technological advances and social developments do not render our rights “any less worthy of the protection for which the Founders fought.” Riley v. California, 134 S. Ct. 2473, 2494–95 (2014). This Court plays an essential role in ensuring that the Fourth Amendment retains its vitality as an indispensable safeguard of liberty, even as Americans dramatically change the ways they organize their everyday affairs. This case calls for the Court to …

Stories That Swim Upstream: Uncovering The Influence Of Stereotypes And Stock Stories In Fourth Amendment Reasonable Suspicion Analysis, Sherri Lee Keene

Maryland Law Review

No abstract provided.

Utah V. Strieff: The Gratuitous Expansion Of The Attenuation Doctrine, Courtney Watkins

Maryland Law Review Online

No abstract provided.

A Tactical Fourth Amendment, Brandon L. Garrett, Seth W. Stoughton

Faculty Publications

What rules regulate when police can kill? As ongoing public controversy over high-profile police killings drives home, the civil, criminal, and administrative rules governing police use of force all remain deeply contested. Members of the public may assume that police rules and procedures provide detailed direction for when officers can use deadly force. However, many agencies train officers to respond to threats according to a force “continuum” that does not provide hardedged rules for when or how police can use force or deadly force. Nor, as recent cases have illustrated, does a criminal prosecution under state law readily lend itself …

Civil Liberty Or National Security: The Battle Over Iphone Encryption, Karen Lowell

Georgia State University Law Review

On June 5, 2013, Edward Snowden released what would be the first of many documents exposing the vast breadth of electronic surveillance the Federal Bureau of Investigation (FBI) and the National Security Agency (NSA) had been conducting on millions of United States citizens. Although the federal agencies had legal authority under the Foreign Intelligence Surveillance Act (FISA) to collect metadata from companies such as Verizon, many Americans considered this data collection to be a massive invasion of privacy.

Equipped with the knowledge of sweeping domestic surveillance programs, citizens and technology firms fighting for strong privacy and security protection, have started …

Game Of Phones: The Fourth Amendment Implications Of Real-Time Cell Phone Tracking, Cal Cumpstone

Cleveland State Law Review

With the help of technological advancements, law enforcement can now hijack a targeted individual’s cell phone to ping and track the phone’s exact location in real time. Based upon previous rulings, this new tracking process has apparently fallen into a "grey area" of Fourth Amendment jurisprudence. However, real-time cell phone tracking should be a search in terms of the Fourth Amendment and, therefore, require a warrant. Real-time cell phone tracking infringes on an individual’s reasonable expectation of privacy, violates the trespass doctrine as a trespass to chattels, and violates the Kyllo standard by using technology not in general public use …

Preventing An Air Panopticon: A Proposal For Reasonable Legal Restrictions On Aerial Surveillance, Jake Laperruque

University of Richmond Law Review

No abstract provided.

Digital Technology And Analog Law: Cellular Location Data, The Third-Party Doctrine, And The Law's Need To Evolve, Justin Hill

University of Richmond Law Review

No abstract provided.

What Is The Scope Of Searches Of Cell Phones Incident To Arrest? United States V. Wurie And The Return Of Chimel, Benjamin J. Wahrer

Maine Law Review

Americans can potentially be arrested for hundreds of nonviolent, minor offenses In fact in 2012, nearly 1 out of every 25 Americans was arrested. Alarmingly, this figure is even higher among youths, with 1 out of every 3 expected to be arrested at least once by the time they turn 23. Once played under arrest, an individual’s expectation of privacy is severely reduced and law enforcement personnel traditionally have broad authority to search and seize anything found on the arrestee’s person, no matter the nature of the arresting crime. For example, it is well-settled law that the arresting officer may …