Fourth Amendment Commons^™

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 It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal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 The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or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 …

Cloudy Privacy Protections: Why The Stored Communications Act Fails To Protect The Privacy Of Communications Stored In The Cloud, Ilana R. Kattan

Vanderbilt Journal of Entertainment & Technology Law

The advent of new communications technologies has generated debate over the applicability of the Fourth Amendment's warrant requirement to communications sent through, and stored in, technologies not anticipated by the Framers. In 1986, Congress responded to perceived gaps in the protections of the warrant requirement as applied to newer technologies, such as email, by passing the Stored Communications Act (SCA). As originally enacted, the SCA attempted to balance the interests of law enforcement against individual privacy rights by dictating the mechanisms by which the government could compel a particular service provider to disclose communications stored on behalf of its customers. …

Randomization And The Fourth Amendment, Bernard Harcourt, Tracey L. Meares

Faculty Scholarship

Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists checkpoint searches violate the central requirement of valid Fourth Amendment searches – namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized" suspicion is misleading; most suspicion in the modem policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on …

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

University of Colorado Law Review

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 level, …

Unraveling The Exclusionary Rule: From Leon To Herring To Robinson - And Back?, David H. Kaye

Faculty Scholarship

The Fourth Amendment exclusionary rule began to unravel in United States v. Leon. The facts were compelling. Why exclude reliable physical evidence from trial when it was not the constable who blundered, but “a detached and neutral magistrate” who misjudged whether probable cause was present and issued a search warrant? Later cases applied the exception for “good faith” mistakes to a police officer who, pursuing a grudge against a suspect, arrested and searched him and his truck on the basis of a false and negligent report from a clerk in another county of an outstand­ing arrest warrant. The California Supreme …

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.

Crime Mapping And The Fourth Amendment: Redrawing 'High Crime Areas', Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

This article addresses how “crime mapping” technology has the potential to reshape Fourth Amendment protections in designated “high crime areas.” In the past few years, the ability of police administrators to identify and officially label “high crime areas” has rapidly expanded. Geographic Information Systems (GIS) and crime mapping technology has simplified the collection and analysis of crime statistics. These GIS crime mapping technologies can produce almost perfect information about the level, rate, and geographic location of crimes in any given area.While effective policing tools, these technologies have constitutional consequences that are only now being considered. Under existing Supreme Court precedent, …

Along For The Ride: Gps And The Fourth Amendment, Stephen A. Josey

Vanderbilt Journal of Entertainment & Technology Law

With the advent of new technologies, the line as to where the Fourth Amendment forbids certain police behavior and when it does not has become increasingly blurred. Recently, the issue of whether police may use Global Positioning System (GPS) tracking devices to track individuals for prolonged periods of time without first securing a search warrant has crept its way into the limelight. The various circuits have arrived at different conclusions, and the question has now found its way onto the US Supreme Court's docket. After analyzing and weighing both Supreme Court case law and public policy considerations, this Note concludes …

Privacy Implications Of Smart Meters, Cheryl Dancey Balough

Chicago-Kent Law Review

Many people worry about the erosion of privacy in our society given developments in technology, but that loss of privacy may take a quantum leap as electric "smart meters" make it possible for strangers to know on a real-time basis what is occurring in our houses and apartments. Perhaps the greatest concern is that current laws and regulations do not fully protect us from this unprecedented threat to two of our most basic rights—to be left alone in our own homes and to control personal information. Utility companies across the country are replacing conventional electric meters with smart meters designed …

Government Dragnets, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article examines group-focused police investigation techniques - for instance, roadblocks, drug testing programs, area or industry-wide health and safety inspections, data mining, and camera surveillance - a phenomenon referred to as "government dragnets" because these general searches and seizures attempt to cull out bad actors through ensnaring a much larger number of individuals who are innocent of any wrongdoing. The courts have imposed few limitations on dragnets. Recent commentary has either advocated an even more laissez-faire attitude toward these group search and seizures or, at the other end of the spectrum, proposed schemes that would make most of them …

The Inviolate Home: Housing Exceptionalism In The Fourth Amendment, Stephanie M. Stern

All Faculty Scholarship

The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions. The focus on protection of the physical home has decreased doctrinal efficiency and coherence and derailed Fourth Amendment residential privacy from the core principle of intimate association. This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces …

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renee Mcdonald Hutchins

Journal Articles

For more than two months beginning in late December of 2005, police officers in New York State continuously monitored the location and movements of Scott Weaver's van using a surreptitiously attached global positioning system ("GPS") device, known as a "Qball."' The reason Weaver was targeted for police surveillance has never been disclosed. 2 In addition, law enforcement made no attempt to justify the heightened scrutiny of Weaver by seeking the pre-authorization of a warrant from a neutral magistrate.3 Rather, for sixty-five days, the police subjected Weaver to intense surveillance without oversight, interruption, or explanation. 4 More than a year after …

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins

University of Richmond Law Review

In this essay, I contend that when evaluating the constitutionality of enhanced surveillance devices, the existing test for assessing the occurrence of a Fourth Amendment search should be modified. Specifically, I suggest that intrusiveness should be unambiguously adopted by the Court as the benchmark for assessing and defining the existence of a search under the Fourth Amendment. Moreover, intrusiveness should be clearly defined to require an examination of two factors: the functionality of a challenged form of surveillance and the potential for disclosure created by the device.

Proportionality, Privacy, And Public Opinion: A Reply To Kerr And Swire, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In 2007, I published Privacy at Risk: The New Government Surveillance and the Fourth Amendment.' The immediate trigger for the book was the recent upsurge in government use of technology to monitor public and private behavior, and more particularly the tremendous increase in government surveillance after 9/11 using techniques such as data mining, phone and computer intercepts, and public camera systems. The primary analytical target of the book, however, was more general: Supreme Court case law that, read broadly, permits much of this technological surveillance to take place without impinging on any constitutional interests. In an effort to counteract this …

The Spot Program: Hello Racial Profiling, Goodbye Fourth Amendment?, Deborah L. Meyer

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

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

Articles

No abstract provided.

Substitution Effects: A Problematic Justification For The Third-Party Doctrine Of The Fourth Amendment, Blake Ellis Reid

Publications

In the past half-century, the Supreme Court has crafted a vein of jurisprudence virtually eliminating Fourth Amendment protection in information turned over to third parties - regardless of any subjective expectation of privacy or confidentiality in the information on the part of the revealer. This so-called “third-party” doctrine of the Fourth Amendment has become increasingly controversial in light of the growing societal reliance on the Internet in the United States, where nearly every transaction requires a user to turn information over to at least one third party: the Internet service provider (“ISP”).

Citing the scholarship that has criticized the third-party …

Discipline In Schools After Safford Unified School District #1 V. Redding, Dennis D. Parker

NYLS Law Review

No abstract provided.

Fourth Amendment Remedial Equilibration: A Comment On Herring V. United States And Pearson V. Callahan, David B. Owens

Articles

In two recent decisions, the Supreme Court addressed remedies under the Fourth Amendment by assuming that this remedial construction did not alter the value of the underlying right meant to be protected by the Constitution. First, in Herring v. United States, the court broadened exceptions to the exclusionary rule and implied that suppression may not be required for "negligent" errors generally. Then, in Pearson v. Callahan, the Court abandoned it's "battle-of-order" rule - which required courts to consider the right before inquiring whether that right was "clearly established" at the time of the violation - when considering qualified …

Veteran Police Officers And Three-Dollar Steaks: The Subjective/Objective Dimensions Of Probable Cause And Reasonable Suspicion, Kit Kinports

Faculty Scholarship

This Article addresses two issues surrounding probable cause and reasonable suspicion that test the line between subjective and objective standards in Fourth Amendment jurisprudence: the extent to which a particular police officer’s training and experience ought to be considered in measuring probable cause and reasonable suspicion, and the relevance of the officer’s subjective beliefs about the presence of a weapon in assessing the reasonable suspicion required to justify a frisk. Although both questions have split the lower courts and remain unresolved by the Supreme Court, the majority of courts treat them inconsistently, recognizing the importance of an officer’s training, experience, …

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 …

The Irrelevancy Of The Fourth Amendment In The Roberts Court, Thomas K. Clancy

Chicago-Kent Law Review

Since John Roberts Jr. became Chief Justice of the Supreme Court, there has been a measurable decline in the number of cases addressing Fourth Amendment questions. This article examines the reasons for that decline and predicts the substantial elimination of Fourth Amendment litigation in the Roberts Court. The prediction is based on several premises, including the lack of interest of the Justices on the Court concerning search and seizures principles and two significant recent cases, Pearson v. Callahan and United States v. Herring, which presage a significant decline in the number of lower court cases addressing the merits of …

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 …

Reasonableness As A Rule: A Paean To Justice O'Connor's Dissent In Atwater V. City Of Lago Vista, Wayne A. Logan

Scholarly Publications

This paper, part of a symposium dedicated to “great” Fourth Amendment dissents, examines Justice Sandra Day O’Connor's dissent in Atwater v. City of Lago Vista (2001), where by a 5-4 vote the Court upheld the constitutionality of warrantless police arrests for non-breach of the peace, fine-only offenses. In addition to rightfully condemning the majority's decision to equate probable cause with constitutional reasonableness, in principle, Justice O’Connor presciently recognized the numerous liberty and privacy-restricting consequences of the outcome for the “everyday lives of Americans.” Atwater, combined with decisions issued before and after it, including Whren v. United States, Devenpeck …

Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan

Scholarly Publications

Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of …

Warrantless Arrests In Police Standoffs: A Common Sense Approach To The Exigency Exception, Elizabeth E. Forbes

Law Student Publications

In the discussion that follows, I argue that exigency in police standoff situations should be governed by the clearer, more common sense rule adopted by the Sixth Circuit - namely that exigency exists due to the inherent danger of a police standoff, and is not negated by the mere passage of time. Part I provides a backdrop for the discussion, presenting an overview of the Supreme Court's jurisprudence on exigency cases. Part II discusses the differing Sixth Circuit and Ninth Circuit approaches to exigency in police standoffs. Part III argues that the better position on exigency in police standoff situations …

Diminishing Probable Cause And Minimalist Searches, Kit Kinports

Faculty Scholarship

This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are …

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 …