Fourth Amendment Commons^™

Washington Search And Seizure Law: 2026 Update, Justice Charles W. Johnson, Justice Debra L. Stephens, Justice Steven González

Seattle University Law Review

This Survey is intended to serve as a resource which Washington lawyers, judges, law enforcement officers, and others can turn to as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. As the U.S. Supreme Court has continued to examine Fourth Amendment search and seizure jurisprudence, its decisions and reflections on Washington law are discussed.

Most of the Survey cases involve the Washington …

"Intolerable" Inquiries, Zachary R. Cormier

St. John's Law Review

(Excerpt)

A growing majority of courts have broadly accepted travel-plan questions (and their follow-up questions) as a qualifying category of traffic-mission inquiries under Rodriguez, leaving officers with a clear pathway from pretextual traffic stop—to extended discussion about vehicle occupant activities outside the traffic violation—to drug dog sniff—to vehicle search. A closer analysis of Rodriguez, however, precludes such passage through the heart of its traffic-mission rule. This Article will demonstrate that travel-plan questioning cannot qualify alongside the roadway safety checks identified by Rodriguez in its traffic-mission inquiry list because such checks provide direct information about another safety-related traffic violation …

Decriminalization: A New Consideration For The Fourth Amendment Balance, Maine Law Review

Maine Law Review

During the past several years Maine has reevaluated the wisdom of applying criminal sanctions to certain forms of conduct. In addition to the total abrogation of a number of crimes, the Maine Legislature has reduced the statutory classification of some offenses to civil violations. Moreover, certain newly established offenses have been limited to the status of civil violations. The designation of offenses as "civil" raises the question of what constitutional safeguards should be applied to the manner in which such violations are investigated and to the process under which civil sanctions are administered. This Comment will summarize the Supreme Court's …

State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron

Maine Law Review

Law enforcement officers often have occasion to follow the path to the front door of a residence in order to speak to its occupant. Upon answering the door, the occupant may hear a complaint about his barking dog, a query as to whether he witnessed the burglary next door, or a plea seeking support for the police department's Christmas charity drive. Occasionally, a police officer follows the path to a person's door and unexpectedly observes incriminating evidence or activities. In such cases, the police officer's conduct generates the issue of whether his observation implicates the fourth amendment's prohibition against unreasonable …

State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron

Maine Law Review

Law enforcement officers often have occasion to follow the path to the front door of a residence in order to speak to its occupant. Upon answering the door, the occupant may hear a complaint about his barking dog, a query as to whether he witnessed the burglary next door, or a plea seeking support for the police department's Christmas charity drive. Occasionally, a police officer follows the path to a person's door and unexpectedly observes incriminating evidence or activities. In such cases, the police officer's conduct generates the issue of whether his observation implicates the fourth amendment's prohibition against unreasonable …

Back To The Future: Revisiting State Constitutions To Protect Against New Technological Intrusions, Matthew Radford

Washington and Lee Law Review

The Fourth Amendment is crucial for protecting Americans from government intrusion. However, new technologies such as pole cameras, reverse keyword searches, and geofence searches provide new ways for governments to gather information about individuals. As these new technologies develop, the Fourth Amendment has struggled to advance alongside this new technology.

Thankfully, the Fourth Amendment is not the only protection Americans have from government intrusion. Every single state has its own state constitution and analog to the Federal Fourth Amendment. In fact, some states had their own analog amendments even before the adoption of the Federal Fourth Amendment. While oftentimes the …

Arrests: Legal And Illegal, Daniel Yeager

Georgia State University Law Review

The Fourth Amendment prohibits unreasonable searches and seizures. An arrest—manifesting a police intention to transport a suspect to the stationhouse for booking, fingerprinting, and photographing—is a mode of seizure. Because arrests are so intrusive, they require roughly a fifty percent chance that an arrestable offense has occurred. Because nonarrest seizures (aka Terry stops), though no “petty indignity,” are less intrusive than arrests, they require roughly just a twenty-five percent chance that crime is afoot.

Any arrest not supported by probable cause is illegal. It would therefore seem to follow that any arrest supported by probable cause is legal. But it …

Criminal Procedure—"I Smell Marijuana”—Why Arkansas’S Categorical Authorization For A Warrantless Automobile Search Is Entirely Unreasonable, W. Jennings Stanley

University of Arkansas at Little Rock Law Review

No abstract provided.

Criminal Procedure—Technology In The Modern Era: The Implications Of Carpenter V. United States And The Limits Of The Third-Party Doctrine As To Cell Phone Data Gathered Through Real-Time Tracking, Stingrays, And Cell Tower Dumps, Deepali Lal

University of Arkansas at Little Rock Law Review

No abstract provided.

The Computer Got It Wrong: Facial Recognition Technology And Establishing Probable Cause To Arrest, T.J. Benedict

Washington and Lee Law Review

Facial recognition technology (FRT) is a popular tool among police, who use it to identify suspects using photographs or still-images from videos. The technology is far from perfect. Recent studies highlight that many FRT systems are less effective at identifying people of color, women, older people, and children. These race, gender, and age biases arise because FRT is often “trained” using non-diverse faces. As a result, police have wrongfully arrested Black men based on mistaken FRT identifications. This Note explores the intersection of facial recognition technology and probable cause to arrest.

Courts rarely, if ever, examine FRT’s role in establishing …

Antiracism In Action, Daniel Harawa, Brandon Hasbrouck

Washington and Lee Law Review

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system …

Cloudy With A Chance Of Government Intrusion: The Third-Party Doctrine In The 21st Century, Steven Arango

Catholic University Law Review

Technology may be created by humans, but we are dependent on it. Look around you: what technology is near you as you read this abstract? An iPhone? A laptop? Perhaps even an Amazon Echo. What do all these devices have in common? They store data in the cloud. And this data can contain some of our most sensitive information, such as business records or medical documents.

Even if you manage this cloud storage account, the government may be able to search your data without a warrant. Federal law provides little protection for cloud stored data. And the Fourth Amendment may …

Preview—United States V. Cooley: What Will Happen To The Thinnest Blue Line?, Jo J. Phippin

Public Land & Resources Law Review

The Supreme Court of the United States ("Supreme Court") will hear oral arguments in this matter on Tuesday, March 23, 2021. This case presents the narrow issue of whether a tribal police officer has the authority to investigate and detain a non-Indian on a public right-of-way within a reservation for a suspected violation of state or federal law. The lower courts, holding that tribes have no such authority, granted James Cooley’s motion to suppress evidence. The Supreme Court must decide whether the lower courts erred in so deciding. While the issue before the Supreme Court is itself narrow, it has …

Law School News: 'Unmatched Opportunities' 12-16-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss: Dyer V. Smith, Brandon Hasbrouck, Katherine Mims Crocker

Scholarly Articles

This case illustrates how the First Amendment functions as an essential backstop to Fourth Amendment freedoms—and vice versa. As revealed by the national response to the killing of George Floyd and so many similar injustices, the ability to record encounters with government representatives is critical to preserving civil rights, and especially the right to avoid excessive force. The public only “became aware of the circumstances surrounding George Floyd’s death because citizens standing on a sidewalk exercised their First Amendment rights and filmed a police officer kneeling on Floyd’s neck until he died.” Index Newspapers LLC v. U.S. Marshals Serv., …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 12-2020, Barry Bridges, Michael M. Bowden, Nicole Dyszlewski, Louisa Fredey

Life of the Law School (1993- )

No abstract provided.

Peffer V. Stephens: Probable Cause, Searches And Seizures Within The Home, And Why Using Technology Should Not Open Your Front Door, Shane Landers

Texas A&M Law Review

The Fourth Amendment provides for the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Search warrants may only be issued upon a finding of probable cause. This core tenet of our constitutional republic becomes progressively flexible with every development in Fourth Amendment interpretation. In Peffer v. Stephens, the United States Court of Appeals for the Sixth Circuit delivered the latest blow to constitutional rights that restrict the State from engaging in unprincipled searches. In an issue of first impression, the Sixth Circuit held that a criminal defendant’s alleged use …

State V. Pinkham: Erosion Of Meaningful Forth Amendment Protection For Vehicle Stops In Maine?, Roger M. Clement Jr.

Maine Law Review

In State v. Pinkham, the Maine Supreme Judicial Court, sitting as the Law Court, held that a police officer's stop of a motorist to inquire and advise about the motorist's improper-but not illegal-lane usage did not necessarily violate the Fourth Amendment's proscription against unreasonable seizures. The Pinkham decision is the first time that the Law Court has validated the stop of a moving vehicle in the absence of either a suspected violation of law or an imminent, ongoing threat to highway safety.
This Note considers whether the Law Court was correct in sustaining the police officer's stop of Ronald Pinkham. …

Saving America’S Privacy Rights: Why Carpenter V. United States Was Wrongly Decided And Why Courts Should Be Promoting Legislative Reform Rather Than Extending Existing Privacy Jurisprudence, David Stone

St. Mary's Law Journal

Privacy rights are under assault, but the Supreme Court’s judicial intervention into the issue, starting with Katz v. United States and leading to the Carpenter v. United States decision has created an inconsistent, piecemeal common law of privacy that forestalls a systematic public policy resolution by Congress and the states. In order to reach a satisfactory and longlasting resolution of the problem consistent with separation of powers principles, the states should consider a constitutional amendment that reduces the danger of pervasive technologyaided surveillance and monitoring, together with a series of statutes addressing each new issue posed by technological change as …

Sniffing Out The Fourth Amendment: United States V. Place-Dog Sniffs-Ten Years Later, Hope Walker Hall

Maine Law Review

In the endless and seemingly futile government war against drugs, protections afforded by the Fourth Amendment of the United States Constitution may have fallen by the wayside as courts struggle to deal with drug offenders. The compelling government interest in controlling the influx of drugs all too often results in a judicial attitude that the ends justify the means. Judges can be reluctant to exclude evidence of drugs found in an unlawful search pursuant to the exclusionary rule, which provides that illegally obtained evidence may not be used at trial. The exclusion of drugs as evidence in drug cases often …

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 …

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 …

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.

Carpenter V. United States: Brief Of Scholars Of Criminal Procedure And Privacy As Amici Curiae In Support Of Petitioner, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

Amici curiae are forty-two scholars engaged in significant research and/or teaching on criminal procedure and privacy law. This brief addresses issues that are within amici’s particular areas of scholarly expertise. They have a shared interest in clarifying the law of privacy in the digital era, and believe that a review of scholarly literature on the topic is helpful to answering the question in this case. This brief is co-authored by Harry Sandick, Kathrina Szymborski, & Jared Buszin of Patterson Belknap Webb & Tyler LLP.Carpenter v. United States presents an opportunity to reconsider the Fourth Amendment in the digital age. Cell …

When The Police Get The Law Wrong: How Heien V. North Carolina Further Erodes The Fourth Amendment, Vivan M. Rivera

Loyola of Los Angeles Law Review

No abstract provided.

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson, Stephen E. Henderson

Faculty Articles

What is the constitutional significance of the proverbial “keep off the grass” sign? This question—asked by curmudgeonly neighbors everywhere—has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding—and control over—access to property, “the people” may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education and empowerment: Fourth Amendment LAWn signs. With every …

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Faculty Articles

When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those big data records not only store our past, but thanks to data mining they are in many circumstances eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully different …

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

What is the constitutional significance of the proverbial "keep off the grass" sign? This question — asked by curmudgeonly neighbors everywhere — has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding — and control over — access to property, "the people" may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education …

The Internet Of Things And The Fourth Amendment Of Effects, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

By 2020 there will be billions of “things” connected through the “Internet of Things.” These smart devices built within our homes, cars, smartphones, clothing, and accessories present new possibilities for technological surveillance for law enforcement. This network of smart devices also poses a new challenge for a Fourth Amendment built around “effects.” The constitutional language protecting “persons, houses, papers, and effects” from unreasonable searches and seizures must confront this change. This article addresses how a Fourth Amendment built on old-fashioned “effects” can address a new world when things are no longer just inactive, static objects, but objects that create and …

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.