Fourth Amendment Commons^™

The Devil Is In The Details: The Supreme Court Erodes The Fourth Amendment In Applying Reasonable Suspicion In Navarette V. California, George M. Dery Iii, Kevin Meehan

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Leveraging Predictive Policing Algorithms To Restore Fourth Amendment Protections In High-Crime Areas In A Post-Wardlow World, Kelly K. Koss

Chicago-Kent Law Review

Rapid technological changes have led to an explosion in Big Data collection and analysis through complex computerized algorithms. Law enforcement has not been immune to these technological developments. Many local police departments are now using highly advanced predictive policing technologies to predict when and where crime will occur in their communities, and to allocate crime-fighting resources based on these predictions.

Although predictive policing technology has an array of the potential uses, the scope of this Note is limited to addressing how the statistical outputs from these technologies can be used to restore eroded Fourth Amendment rights in alleged high-crime areas. …

Government Retention And Use Of Unlawfully Secured Dna Evidence, Wayne A. Logan

Scholarly Publications

No abstract provided.

Cutting Cops Too Much Slack, Wayne A. Logan

Scholarly Publications

Police officers can make mistakes, which, for better or worse, the U.S. Supreme Court has often seen fit to forgive. Police, for instance, can make mistakes of fact when assessing whether circumstances justify the seizure of an individual or search of a residence; they can even be mistaken about the identity of those they arrest. This essay examines yet another, arguably more significant context where police mistakes are forgiven: when they seize a person based on their misunderstanding of what a law prohibits.

Supreme Court Jurisprudence Of The Personal In City Of Los Angeles V. Patel, Brian L. Owsley

Michigan Law Review First Impressions

Recently, the Supreme Court issued a 5-4 decision in City of Los Angeles v. Patel striking down a city ordinance that required hotel and motel owners to make their guest registries available to police officers whenever requested to do so. Although the Court’s opinion in Patel simply affirmed the Ninth Circuit’s finding that the ordinance was unconstitutional, the Court could have used Patel to readdress the third-party doctrine, which establishes that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Patel provided a vehicle for the Court to do so, particularly because …

The Un-Territoriality Of Data, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorities depend on whether the target is located within the United States or without; and courts’ warrant jurisdiction extends, with limited exceptions, only to the borders’ edge. Yet the rise of electronic data challenges territoriality at its core. Territoriality, after all, depends on the ability to define the relevant “here” and “there,” and it presumes that the “here” and “there” have normative significance. The …

Consequence, Weapons Of Mass Destruction, And The Fourth Amendment's "No-Win" Scenario, Scott J. Glick

Indiana Law Journal

No abstract provided.

Online Data Breaches, Standing, And The Third-Party Doctrine, Adam Lamparello

Cardozo Law Review de•novo

This Essay argues that, in the context of online data breaches, these doctrines hinder consumers from receiving full monetary compensation and do not adequately safeguard privacy rights. For example, courts frequently dismiss consumers’ suits against online service providers for lack of standing, which results in consumers bearing the cost for damages that the providers were in a position to prevent. This Essay argues that the Supreme Court should relax the standing doctrine’s “imminent harm” requirement and permit consumers to sue providers for mitigation damages. In addition, the Court should abandon the longstanding principle that citizens lose all privacy protections in …

Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin

UF Law Faculty Publications

This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA. Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when …

Widening The Aperture On Fourth Amendment Interests: A Comment On Orin Kerr's The Fourth Amendment And The Global Internet, David G. Delaney

Articles by Maurer Faculty

Physical-world law may not be suitable for cyberspace. For example, the Supreme Court's "sufficient connection" test in U.S. v. Verdugo-Urquidez (1990) is inconsistent with the century-long trend for courts to find greater constitutional protections for those subject to U.S. jurisdiction outside the United States. Courts must maintain flexibility to conceive of a Fourth Amendment that does not depend exclusively on territory to fulfill its twin aims of ordering government and enabling redress of liberty infringements. Federal and state courts and legislatures addressing searches, seizures, and surveillance in cyberspace should seek simple rules that can easily adapt as cyberspace and government …

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

Faculty Articles

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between law-enforcement investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited resources to develop countermeasures, law enforcement officers will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game-theoretic model that shows that when law-enforcement investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

Consequence, Weapons Of Mass Destruction, And The Fourth Amendment's "No-Win" Scenario, Scott J. Glick

Hofstra Law Faculty Scholarship

This article looks at consequence, with a particular focus on the threatened use of a WMD, to begin a discussion on a new doctrinal solution to the hypothetical. As background, Part I takes a look at cardinal Fourth Amendment principles and rules, as well as the many exceptions to the warrant, probable cause and particularity requirements that the Supreme Court has recognized. Part I also discusses minimization, a well-established privacy enhancing mechanism that normally serves as a back-end check on the government’s conduct, to determine whether it can serve as a front-end substitute for the Fourth Amendment’s particularity requirement. Based …

Following The Script: Narratives Of Suspicion In Terry Stops In Street Policing, Jeffery Fagan, Amanda Geller

Faculty Scholarship

Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts in which police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment …

The Death Penalty On The Streets: What The Eighth Amendment Can Teach About Regulating Police Use Of Force, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

The use of force by police officers has traditionally been analyzed through the lens of Fourth Amendment reasonableness. The Supreme Court has decided that the proper question regarding the excessiveness of police force is whether the police officer acted as a reasonable law enforcement officer. When that police force is fatal — what this Article deems the death penalty on the streets — the legal question is the same, leaving us with an analysis that requires a heavy reliance on the officer's version of events and a host of disagreement on what constitutes appropriate police action. Reasonable minds can, …

Big Data And Predictive Reasonable Suspicion, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics …

Environmental Privacy, Katrina F. Kuh

Utah Law Review

The purpose of this Article is not to anticipate whether or how the Fourth Amendment might apply to specific efforts to collect information about environmentally significant individual behaviors. The purpose is to discern the considerations that have proven salient in balancing environmental regulation and privacy to date that may likewise be relevant to navigating privacy concerns that arise with respect to policy directed to environmentally significant individual behaviors.

In this regard, the Article’s survey suggests that neither the fact that environmentally significant individual behaviors must be aggregated to produce environmental harm nor the fact that individuals, as opposed to commercial …

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

All Faculty Scholarship

With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the …

From Fugitives To Ferguson: Repairing Historical And Structural Defects In Legally Sanctioned Use Of Deadly Force, José F. Anderson

All Faculty Scholarship

The lawful use of lethal force to subdue suspected wrongdoers has a long tradition in our nation. There is certainly nothing wrong with securing, incapacitating, or even killing violent persons who pose a serious threat to the lives of innocent individuals. One of the important roles of government is to protect people from harm and keep the peace. Recent events in Ferguson, Missouri, have highlighted the tension between the officers on the beat and citizens on the street. These tensions are not likely to subside unless there are major structural changes in the way the police do their job and …

Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin

Faculty Scholarship

This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA.

Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when …

The Fourth Amendment And Surveillance In A Digital World, Arthur Leavens

Faculty Scholarship

Technology has transformed government surveillance and opened traditionally private information to official scrutiny. The current privacy-based approach to the Fourth Amendment is unable to cope with the changes. This Article offers a solution to the problems that technological surveillance techniques present. Starting with the introduction of the approach in Katz, the Article reviews the development of privacy-based approach. It then looks at three 21st century Supreme Court cases that grappled with applying the Katz test to advanced technological surveillance techniques: Kyllo, Quon, and Jones. These cases demonstrate the problems that the privacy-based approach creates and the …

Appellate Division, First Department, People V. Celaj, Danielle Dupré

Touro Law Review

No abstract provided.

False Arrest, Malicious Prosecution, And Abuse Of Process In § 1983 Litigation, John Williams

Touro Law Review

No abstract provided.

Supreme Court, Bronx County, People V. Barnville, David Schoenhaar

Touro Law Review

No abstract provided.

Justification For Police Intrusions, Corey Rashkover

Touro Law Review

No abstract provided.

Interpreting Search Incident To Arrest In New York: Past, Present, And Future, Jacqueline Iaquinta

Touro Law Review

No abstract provided.

Search And Seizures: Constitutionally Protected Or Discretionary Police Work?, Jaren Fernan

Touro Law Review

No abstract provided.

Seize First, Search Later: The Hunt For Digital Evidence, Paige Bartholomew

Touro Law Review

No abstract provided.

Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbulling Laws, Emily Suski

Faculty Publications

For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This …

Putting The Brakes On Driver Privacy: Black Boxes, Data Collection, And The Fourth Amendment, Thayer Case

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Framers' Fourth Amendment Exclusionary Rule: The Mounting Evidence, Roger Roots

Nevada Law Journal

No abstract provided.