Fourth Amendment Commons^™

Whren V. United States: An Abrupt End To The Debate Over Pretextual Stops, Brian J. O'Donnell

Maine Law Review

In Whren v. United States, the United States Supreme Court held that a traffic stop is reasonable under the Fourth Amendment if a police officer has probable cause to believe that a traffic violation has occurred, even if the stop is a pretext for the investigation of a more serious offense. The Court affirmed the convictions of Michael A. Whren and James L. Brown, who had been arrested on federal drug charges after Washington, D.C., police stopped Brown for minor traffic infractions. The Court's unanimous opinion, delivered by Justice Scalia, brought an end to a long-running debate over the proper …

Standing Under State Search And Seizure Provision: Why The Minnesota Supreme Court Should Have Rejected The Federal Standards And Instead Invoked Greater Protection Under Its Own Constitution In State V. Carter, Rebecca C. Garrett

Maine Law Review

In State v. Carter, the Minnesota Supreme Court considered whether a criminal defendant had “standing” to challenge an alleged search under the Fourth Amendment and Article 1, Section 10 of the Minnesota Constitution. The defendant moved to suppress evidence obtained by a police officer who had peered in the window of an apartment where the defendant was participating in a drug-packaging operation with the apartment's leaseholder. A divided court held that the defendant had a legitimate expectation of privacy in the apartment. Therefore, the defendant had standing to challenge the legality of the police officer's observations pursuant to the Fourth …

Privacy Vs. Protection: Why Tracking Mobile-Device Location Data Without A Warrant Requires A Fourth Amendment Exception, Andrew Stover

Catholic University Journal of Law and Technology

No abstract provided.

Legal Consciousness As Race Consciousness: Expansion Of The Fourth Amendment Seizure Analysis Through Objective Knowledge Of Police Impunity, Lindsey Webb

Sturm College of Law: Faculty Scholarship

Encounters between police officers and members of the community are deeply influenced by race. Yet when courts assess whether police officers have complied with the Fourth Amendment, they explicitly exclude consideration of the ways in which the police-civilian interaction was influenced by racial bias, assumptions, and fear. In determining whether law enforcement officers seized a civilian, for example, courts look to the objective circumstances of the event, such as the number of officers involved, whether police weapons were drawn, and the tone of voice the officers used. They then assess whether, under such circumstances, a reasonable person would feel free …

Protecting Florida's Marine Life With Conservation Drones, Daniel Grammes

St. Thomas Law Review

This comment analyzes drones under current Fourth Amendment jurisprudence and focuses on the issues contributing to unsustainable fisheries in Florida. Part II explains the basic concept of drones and discusses privacy issues through the Fourth Amendment as well as Florida marine patrol statutes that are relevant to an analysis of drone technology. Part III highlights that Florida's fisheries are at an unsustainable level because there are not enough Florida marine patrol officers and the simplicity of disposing illegally harvested wildlife into the ocean. Part IV suggests that Florida adopt legislation authorizing a drone enforcement program for marine patrol. Part V …

Martin Luther King Jr. And Pretext Stops (And Arrests): Reflections On How Far We Have Not Come Fifty Years Later, Tracey Maclin, Maria Savarese

UF Law Faculty Publications

By January, 1956, the Montgomery Bus boycott was in full-swing. Black citizens in Montgomery, Alabama were refusing to ride the city’s private buses to protest racially segregated seating. On the afternoon of January 26, 1956, twenty-seven-year-old Martin Luther King, Jr. had finished his day of work at the Dexter Avenue Baptist Church in Montgomery. On his drive home, King stopped his vehicle to offer a ride to a group of bus boycotters standing at a downtown car-pool location. After the boycotters entered King’s car, two motorcycle policemen pulled-in behind King’s vehicle. While everyone in King’s car tried to remain calm, …

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

Faculty Articles

We finally have a federal ‘test case.’ In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age. The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher. This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious. As for ambition, the Court …

Exigent Circumstances And Searches Incident To Arrest In New York: The Difficulties And Distinctions, Kyle Knox

Touro Law Review

No abstract provided.

“You’Re Not Gonna Reach My Telephone”— The Resurgence Of The Fourth Amendment’S Particularity Requirement, Tammie Beassie Banko

SMU Law Review

No abstract provided.

Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu

Scholarly Articles

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies.

A …

The Next Step In Civil Asset Forfeiture Reform: Passing The Civil Asset Forfeiture Reform Act Of 2014, Daniel Reed

Catholic University Law Review

Civil asset forfeiture is an operation of legal fiction that enables the government to seize property without an underlying conviction of the property owner. Federal authorities bring thousands of civil asset forfeiture cases annually, often against the property of owners who have not been charged with a crime. Such cases can result in unjust outcomes and denials of due process to property owners. To address this controversy, Representative Tim Walberg proposed several reforms to federal civil asset forfeiture laws known as the Civil Asset Forfeiture Reform Act of 2014 (CAFRA 2014).

After discussing the history of civil asset forfeiture, this …

Does The End Justify The Means? The Clumsy And Circuitous Logic Of Blood Test Admissibility In Criminal Prosecutions In State V. Cormier, Kyle T. Macdonald

Maine Law Review

In State v. Cormier, the Maine Supreme Judicial Court, sitting as the Law Court, was asked to determine whether a Maine statute requiring law enforcement officers to test the blood of all drivers for intoxicants following a fatal motor vehicle collision violates the Fourth Amendment of the United States Constitution when the operation of the statute allows for the admission of those blood test results in a future criminal trial of the driver. In determining that the procedures of title 29-A, section 2522 of the Maine Revised Statutes are not violative of the Fourth Amendment, the Law Court effectively confirmed …

The Supreme Court's Long And Perhaps Unnecessary Struggle To Find A Standard Of Culpability To Regulate The Federal Exclusionary Remedy For Fourth/Fourteenth Amendment Violations, Melvyn H. Zarr

Maine Law Review

On January 14, 2009, the United States Supreme Court decided Herring v. United States. In Herring, the defendant moved to suppress evidence that he alleged was seized as a result of an arrest that violated the Fourth and Fourteenth Amendments to the U.S. Constitution. The Supreme Court approved the decision below to deny suppression of the evidence. The decision set off a flurry of speculation that the Fourth Amendment exclusionary rule would not see its 100th birthday in 2014. A headline in the New York Times of January 31 declared: “Supreme Court Edging Closer to Repeal of Evidence Ruling.” Another …

Federal Habeas Review Of State Court Convictions: Incoherent Law But An Essential Right, Lynn Adelman

Maine Law Review

I thank the editors of the Maine Law Review for the opportunity to participate in a discussion about the present state of post-conviction review of criminal convictions. This discussion is important and timely both because the quality of the procedures by which state prisoners can obtain post-conviction review varies greatly from state to state and because state prisoners who seek federal court review of their constitutional claims by petitioning for a writ of habeas corpus face many obstacles. As a federal district judge, my experience is primarily with the later problem. Thus, in this article, I will offer a few …

Find My Criminals: Fourth Amendment Implications Of The Universal Cell Phone "App" That Every Cell Phone User Has But No Criminal Wants, Christopher Joseph

Barry Law Review

No abstract provided.

Kentucky V. King: A New Approach To Consent-Based Police Encounters?, Jamesa J. Drake

Maine Law Review

The exigent circumstances exception to the warrant requirement permits the police to enter a private residence, without prior judicial approval, whenever the police have an objectively reasonable basis for believing that the destruction of evidence is imminent or underway. The United States Supreme Court’s most recent pronouncement in the exigent circumstances realm—Kentucky v. King—is not a case about exigent circumstances per se. Instead, King concerns the “policecreated exigency” doctrine, a concept that the vast majority of federal and state courts already recognize.This doctrine adds a crucial caveat to the exigent circumstances rule, but it is not new. It provides that …

The Prevailing Culture Over Immigration: Centralized Immigration And Policies Between Attrition And Accommodation, Antonios Kouroutakis

Seton Hall Circuit Review

No abstract provided.

Drinking From The Fire Hose: How Massive Self-Surveillance From The Internet Of Things Is Changing The Face Of Privacy, Steven I. Friedland

West Virginia Law Review

No abstract provided.

Rethinking The Fourth Amendment In The Age Of Supercomputers, Artificial Intelligence, And Robots, Melanie Reid

West Virginia Law Review

In an era of diminishing privacy, the Internet of Things ("loT") has become a consensual and inadvertent tool that undermines privacy protection. The loT, really systems of networks connected to each other by the Internet or other radio-type device, creates consensual mass self-surveillance in such domains as fitness and the Fitbit, health care and heart monitors, "smart" houses and cars, and even "smart" cities. The multiple networks also have created a degree of interconnectivity that has opened up a fire hose of information for companies and governments alike, as well as making it virtually insuperable to live "off the grid" …

Do Foreign Nationals Really Have Constitutional Rights?, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Last month, President Trump issued an executive order that has become known as the "travel ban." Among other things, the ban sought to temporarily exclude from the United States foreign nationals from seven predominantly Muslim countries.

Almost immediately, a number of plaintiffs sued and succeeded in obtaining "stays" preventing the ban from going into effect until the cases can be tried. Courts granted these stays because they found that the ban was likely to violate, among other things, anti-discrimination principles embedded within the First and Fifth Amendments to the United States Constitution.

Riley And Abandonment: Expanding Fourth Amendment Protection Of Cell Phones, Abigail Hoverman

Northwestern University Law Review

In light of the privacy concerns inherent to personal technological devices, the Supreme Court handed down a unanimous decision in 2014 recognizing the need for categorical heightened protection of cell phones during searches incident to arrest in Riley v. California. This Note argues for expansion of heightened protections for cell phones in the context of abandoned evidence because the same privacy concerns apply. This argument matters because state and federal courts have not provided the needed protection to abandoned cell phones pre- or post-Riley.

Arkansas Airspace Ownership And The Challenge Of Drones, Lindsey P. Gustafson

University of Arkansas at Little Rock Law Review

No abstract provided.

The 'Smart' Fourth Amendment, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

“Smart” devices radiate data, detailing a continuous, intimate, and revealing pattern of daily life. Billions of sensors will soon collect data from smartphones, smart homes, smart cars, medical devices and an evolving assortment of consumer and commercial products. But, what are these data trails to the Fourth Amendment? Does data emanating from devices on or about our bodies, houses, things, and digital effects fall within the Fourth Amendment’s protection of “persons, homes, papers, or effects”? Does interception of this information violate a “reasonable expectation of privacy?”The “Internet of Things” and the growing proliferation of smart devices create new opportunities for …

Making The Grade: School-Based Telemedicine And Parental Consent, Emily G. Narum

San Diego Law Review

This Comment advocates for a uniform state-by-state regulation, requiring schools to obtain parental consent immediately before any telemedicine service is provided to their children at school. Alternatively, the constitutional issues could be eliminated if telemedicine consent forms enumerate a finite and limited list of what medical services may be provided. These reforms will ensure not only that parents’ and children’s constitutional rights are protected, but also that schools and doctors provide the most informed health care services. Part II describes a background of school-based health, as well as the benefits and risks of offering telemedicine in schools. Part III explains …

Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen Henderson

Other Faculty Publications

Chairman Barrington, Vice Chair Brooks, members of the Committee on Public Safety, Senators, and distinguished guests, I am grateful for the opportunity to speak to you today about unmanned aerial systems, or drones, and more particularly about their federal constitutional implications and what might be the constitutional restrictions on any legislation you might like to enact. I am the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure and privacy, including the constitutional rights pertaining thereto.My topic is not an easy one. The constitutional law is …

The Rhetoric Of The Fourth Amendment: Toward A More Persuasive Fourth Amendment, Timothy C. Macdonnell

Washington and Lee Law Review

In the last forty-five years, the United States Supreme Court’s jurisprudence through the lens of classical rhetoric. Opinions are assessed based on three areas of persuasion: appeals to logic (logos); appeals to emotion (pathos); and appeals to credibility (ethos). By examining the Justices’ opinions in this fashion, patterns of unpersuasive opinion writing emerge. While a common source for all unpersuasive opinions is not available, common patterns of weak persuasion in particular appeals do exist. Weak appeals to ethos commonly stem from Justices failing to fully confront the doctrine of stare decisis. Weak pathos-based appeals often involve Justices engaging in misplaced …

If You Fly A Drone, So Can Police, Stephen Henderson

Other Faculty Publications

Written for Slate's Future Tense.According to the U.S. Constitution, the more you fly your drone, the more police can fly theirs. “Come on,” you might reply, “that hoary document”—and, yes, sorry to make you the sort who drops words like hoary—“that hoary document surely says nothing about drones.” But in fact it does. At least it does as interpreted by the courts. In particular, it is how they interpret the Fourth Amendment. So, to understand this aspect of drones, we first must understand this provision of the Bill of Rights...

Police Misconduct - A Plaintiff's Point Of View, Part Ii, John Williams

Touro Law Review

No abstract provided.

Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya

Touro Law Review

No abstract provided.

Unilateral Invasions Of Privacy, Roger Allan Ford

Law Faculty Scholarship

Most people seem to agree that individuals have too little privacy, and most proposals to address that problem focus on ways to give those users more information about, and more control over, how information about them is used. Yet in nearly all cases, information subjects are not the parties who make decisions about how information is collected, used, and disseminated; instead, outsiders make unilateral decisions to collect, use, and disseminate information about others. These potential privacy invaders, acting without input from information subjects, are the parties to whom proposals to protect privacy must be directed. This Article develops a theory …