Fourth Amendment Commons^™

Time As A Constitutional Constraint: Resolving The Circuit Split On Prolonged Fourth Amendment, Ian Seabrooks

Washington Law Review Online

The Fourth Amendment of the U.S. Constitution states, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” Some circuits, like the Ninth and D.C. Circuits, have interpreted the Fourth Amendment’s reasonableness standard to apply beyond just the initial seizure of property but also to include the continued retention of the seized property. Other circuits, such as the First, Second, Sixth, Seventh, and Eleventh Circuits, have read the reasonableness standard more narrowly and interpreted this requirement to pertain only to the original seizure. …

Private Police Regulation And The Exclusionary Remedy: How Washington Can Eliminate The Public/Private Distinction, Jared Rothenberg

Washington Law Review

Private security forces such as campus police, security guards, loss prevention officers, and the like are not state actors covered by the Fourth Amendment’s prohibition against unreasonable searches and seizures nor the Fifth Amendment’s Miranda protections. As members of the umbrella category of “private police,” these private law enforcement agents often obtain evidence, detain individuals, and elicit confessions in a manner that government actors cannot, which can then be lawfully turned over to the government. Though the same statutory law governing private citizens (assault, false imprisonment, trespass, etc.) also regulates private police conduct, private police conduct is not bound by …

Scanning Iphones To Save Children: Apple’S On-Device Hashing Algorithm Should Survive A Fourth Amendment Challenge, Timothy Gernand

Dickinson Law Review (2017-Present)

When Apple announced it would combat the growth of child sexual abuse material (CSAM) on its platform by scanning all its users’ devices without their consent, many of its loyal customers felt betrayed. With tech companies such as Google and Facebook arranging their business models around selling their customers’ personal information, Apple customers saw the company’s focus on privacy as a refreshing alternative. However, as Apple itself privately acknowledged, this emphasis on privacy had led to it becoming a haven for CSAM. Despite the reputational damage it would incur with its customers, Apple resolved to confront CSAM on its platform …

The Fourth Amendment In The Age Of Autonomous Vehicles, Tracy Hresko Pearl

Faculty Articles

Autonomous vehicles exist at the intersection of two extremely turbulent areas of Fourth Amendment jurisprudence—traffic stops and emerging technologies—and have implications for virtually every major search and seizure doctrine developed over the last century. Complicating matters even further is the fact that car manufacturers are developing these vehicles at varying rates, meaning that vehicles with differing levels of automation are being introduced onto the consumer market at different (and often unpredictable) times. Each level of vehicle automation, in turn, poses unique issues for law enforcement. Semi-autonomous (Levels 2 and 3) vehicles make it extremely difficult for police to distinguish between …

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

Faculty Scholarship

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 …

Perceptions, Knowledge And Experiences Among Police Officers: Traffic Stops, Vehicle Searches And K-9 Involvement, Daniel Ozment

Master of Science in Criminal Justice Theses & (Pre-2016) Policy Research Projects

This survey study explores the perceptions, knowledge and experiences of police “line” officers concerning Fourth Amendment search and seizure norms and applications during traffic stops and vehicles searches, in particular police use of canine units following the landmark United States Supreme Court decision of Rodriguez v. United States. In particular, the study examines issues surrounding the length and scope of a traffic stop by police, including stops with canine involvement. Finally, the study includes an analysis of how federal courts of appeal and Georgia courts have interpreted the Rodriguez decision.

A Cognitive Theory Of The Third-Party Doctrine And Digital Papers, H. Brian Holland

Faculty Scholarship

For nearly 200 years, an individual’s personal papers enjoyed near-absolute protection from government search and seizure. That is no longer the case. With the widespread adoption of cloud-based information processing and storage services, the third-party doctrine operates to effectively strip our digital papers of meaningful Fourth Amendment protections.

This Article presents a new approach to reconciling current third-party doctrine with the technological realities of modern personal information processing. Our most sensitive data is now processed and stored on cloud computing systems owned and operated by third parties. Although we may consider these services to be private and generally secure, the …

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 …

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 …

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 …

Recent Development: Sellman V. State: Absent Additional Circumstances, Consent To A Vehicle Search In A High Crime Area Does Not Create Reasonable Suspicion To Justify A Terry Frisk Of A Passenger Who Displays Nervous Behavior; Theft From A Vehicle Does Not Automatically Infer That An Individual Is Armed, Ashley N. Simmons

University of Baltimore Law Forum

The Court of Appeals of Maryland held that, under the totality of the circumstances, a law enforcement officer did not have reasonable suspicion to conduct a Terry frisk of a passenger during a traffic stop. Sellman v. State, 449 Md. 526, 544, 144 A.3d 771, 782 (2016). The court ruled that a police department policy authorizing officers to conduct Terry frisks based on consent to search a vehicle violates the Fourth Amendment. Id. at 557, 144 A.3d at 790. The court further held that the crime of theft from vehicles does not imply the possession of a deadly weapon. Id. …

Supreme Court, New York County, Kellogg V. Travis, Donna A. Napolitano

Touro Law Review

No abstract provided.

Supreme Court, Kings County, People V. Ortiz, Robert Kronenberg

Touro Law Review

No abstract provided.

Supreme Court, Kings County, People V. Butler, Robert B. Kronenberg

Touro Law Review

No abstract provided.

Court Of Appeals, People V. Robinson, Jonathan Janofsky

Touro Law Review

No abstract provided.

Blood And Privacy: Towards A "Testing-As-Search" Paradigm Under The Fourth Amendment, Andrei Nedelcu

Seattle University Law Review

A vehicle on a public thoroughfare is observed driving erratically and careening across the roadway. After the vehicle strikes another passenger car and comes to a stop, the responding officer notices in the driver the telltale symptoms of intoxication—bloodshot eyes, slurred speech, and a distinct odor of intoxicants. On these facts, a lawfully-procured warrant authorizing the extraction of the driver’s blood is obtained. However, the document fails to circumscribe the manner and variety of testing that may be performed on the sample. Does this lack of particularity render the warrant constitutionally infirm as a mandate for chemical analysis of the …

A “Workplace Exception”: Exploring The Legal Loophole That Allows For Warrantless Gps Tracking Of Government Employees’ Personal Vehicles, Antonia J. Broughton

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, People V. William Ii, Brooke Lupinacci

Touro Law Review

No abstract provided.

The Conversational Consent Search: How “Quick Look” And Other Similar Searches Have Eroded Our Constitutional Rights, Alexander A. Mikhalevsky

Georgia State University Law Review

One area in which law enforcement agencies have stretched constitutional limits concerns the scope of a suspect’s consent to search his or her vehicle. Police forces across the country have tested the limits of consent by asking vague, conversational questions to suspects with the goal of obtaining a suspect’s consent to search, even though that individual may not want to allow the search or may not know that he or she has the right to deny consent.

Conversational phrases like “Can I take a quick look?” or “Can I take a quick look around?” have “emerg[ed] as . . . …

School Surveillance And The Fourth Amendment, Jason P. Nance

UF Law Faculty Publications

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

“Lonesome Road”: Driving Without The Fourth Amendment, Lewis R. Katz

Seattle University Law Review

The protections of the Fourth Amendment on the streets and highways of America have been drastically curtailed. This Article traces the debasement of Fourth Amendment protections on the road and how the Fourth Amendment’s core value of preventing arbitrary police behavior has been marginalized. This Article contends that the existence of a traffic offense should not be the end of the inquiry but the first step, and that defendants should be able to challenge the reasonableness even when there is proof of a traffic offense.

Eavesdropping Under New York And Federal Law: How New York Is Departing From Long-Standing Interpretations Mirroring Federal Law - People V. Rabb, Bailey Ince

Touro Law Review

No abstract provided.

Vehicle Checkpoints: The Ever-Expanding Array Of Purposes For Which A Vehicle May Be Stopped - People V. Gavenda, Jan Lucas

Touro Law Review

No abstract provided.

Roving Border Patrols In New York – Sometimes The Drug Smuggler Does Not Get Convicted: The Legal Limitations Regarding Vehicle Stops And Consent Searches Based Upon Reasonable Suspicion - People V. Banisadr, Robert Mitchell

Touro Law Review

No abstract provided.

Do Automobile Passengers Have A Legitimate Expectation Of Privacy? An Analysis Of Reasonable Expectation Under The Fourth Amendment - People V. Howard, Lisa Belrose

Touro Law Review

No abstract provided.

Search And Seizure: New York Vs. Federal Approach - People V. Keita, Tillie S. Mirman

Touro Law Review

No abstract provided.

The Inevitable Discovery Rule - Justice Served Or Justice Thwarted? - People V. Pinckney, Danielle M. Hansen

Touro Law Review

No abstract provided.

It’S In The Bag: Voluntariness, Scope, And The Authority To Grant Consent - United States V. Harris, Daniel Fier

Touro Law Review

No abstract provided.

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, …

The Good And Bad News About Consent Searches In The Supreme Court, Tracey Maclin

UF Law Faculty Publications

This article is about the Supreme Court's consent search doctrine. Part I describes how the law of consent searches developed between the 1920s and 1973, when Schneckloth v. Bustamonte was decided, which is the Court's seminal consent search case. Part II of the article is a discussion of Bustamonte. In particular, this part highlights the spoken and unspoken premises that influenced the result in Bustamonte and outlines Bustamonte's continuing relevance for consent search cases today. Part III examines United States v. Drayton, a ruling authored by Justice Kennedy that explains why a cryptic passage in that ruling provides important clues …