Fourth Amendment Commons^™

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

Faculty Publications

No abstract provided.

The Adversity Of Race And Place: Fourth Amendment Jurisprudence In Illinois V. Wardlow, 528 S. Ct. 673 (2000), Adam B. Wolf

Michigan Journal of Race and Law

This Case Note lays out Wardlow's pertinent facts, describes the decisions of the Court and lower courts, and then analyzes the ramifications of the Court's holding. In particular, this Case Note argues that the Court's ruling recognizes substantially less Fourth Amendment protections for people of color and indigent citizens than for wealthy Caucasians. This perpetuates a cycle of humiliating experiences, as well as fear and mistrust of the police by many poor people of color.

Confessions, Search And Seizure And The Rehnquist Court, Yale Kamisar

Articles

About the time William Rehnquist ascended to the Chief Justiceship of the United States, two events occurred that increased the likelihood that Miranda would enjoy a long life. In Moran v. Burbine,' a 6-3 majority held that a confession preceded by an otherwise valid waiver of a suspect's Miranda rights should not be excluded either (a) because the police misled an inquiring attorney when they told her they were not going to question the suspect she called about or (b) because the police failed to inform the suspect of the attorney's efforts to reach him.

Race, Rights, And Remedies In Criminal Adjudication, Pamela S. Karlan

Michigan Law Review

Once upon a time, back before the Warren Court, criminal procedure and racial justice were adjacent hinterlands in constitutional law's empire. In 1954, the fifth edition of Dowling's constitutional law casebook contained one chapter on "procedural due process" in which six of the eight cases were about criminal justice, and three of those - Powell v. Alabama, Moore v. Dempsey, and Bailey v. Alabama - were as much about race as they were about crime. A few pages later, two slender chapters on the "national protection of civil rights" and "equal protection of the laws" contained seven and nine decisions, …

What's In A Word? A Comparative Analysis Of Article I, § 12 Of The New York State Constitution And The Fourth Amendment To The United States Constitution As Interpreted By The New York Court Of Appeals And The United States Supreme Court, Douglas Holden Wigdor

Touro Law Review

No abstract provided.

New York Vs. "The Rest Of The Country": State Constitutional Criminal Procedure, Barry Latzer

Touro Law Review

No abstract provided.

Fourth Amendment Accommodations: (Un)Compelling Public Needs, Balancing Acts, And The Fiction Of Consent, Guy-Uriel E. Charles

Michigan Journal of Race and Law

The problems of public housing-including crime, drugs, and gun violence- have received an enormous amount of national attention. Much attention has also focused on warrantless searches and consent searches as solutions to these problems. This Note addresses the constitutionality of these proposals and asserts that if the Supreme Court's current Fourth Amendment jurisprudence is taken to its logical extremes, warrantless searches in public housing can be found constitutional. The author argues, however, that such an interpretation fails to strike the proper balance between public need and privacy in the public housing context. The Note concludes by proposing alternative consent-based regimes …

Computers, Urinals, And The Fourth Amendment: Confessions Of A Patron Saint, Wayne R. Lafave

Michigan Law Review

At least the title indicates that the article is somehow concerned with "the Fourth Amendment," though for anyone who knows me or is at all familiar with my work, that piece of information hardly would come as a revelation. The fact of the matter is that I almost always write about the Fourth Amendment; I am in an academic rut so deep as to deserve recognition in the Guinness Book World of Records. Search and seizure has been my cheval de bataille during my entire time as a law professor and even when I was a mere law student. …

Counter-Revolution In Constitutional Criminal Procedure? Two Audiences, Two Answers, Carol S. Steiker

Michigan Law Review

For the purposes of my argument, I adapt Professor Meir Dan-Cohen's distinction (which he in turn borrowed from Jeremy Bentham) between "conduct" rules and "decision" rules. Bentham and Dan-Cohen make this distinction in the context of substantive criminal law; for their purposes, "conduct" rules are addressed to the general public in order to guide its behavior (for example, "Let no person steal") and "decision" rules are addressed to public officials in order to guide their decisionmaking about the consequences of violating conduct rules (for example, "Let the judge cause whoever is convicted of stealing to be hanged"). But as any …

State Constitutional Jurisprudence: Decision Making At The New York Court Of Appeals, Michael Hutter, Vincent Bonventre, Luke Bierman

Touro Law Review

No abstract provided.

Improving Constitutional Criminal Procedure, Welsh S. White

Michigan Law Review

A Review of The Failure of the Criminal Procedure Revolution by Craig M. Bradley

The Warren Court And Criminal Justice: A Quarter-Century Retrospective, Yale Kamisar

Articles

Many commentators have observed that when we speak of "the Warren Court," we mean the Warren Court that lasted from 1962 (when Arthur Goldberg replaced Felix Frankfurter) to 1969 (when Earl Warren retired). But when we speak of the Warren Court's "revolution" in American criminal procedure we mean the Warren Court that lasted from 1961 (when the landmark case of Mapp v. Ohio was decided) to 1966 or 1967. In its final years, the Warren Court was not the same Court that had handed down Mapp or Miranda v. Arizona.

Guilt: Henry Friendly Meets The Maharal Of Prague, Irene Merker Rosenberg, Yale L. Rosenberg

Michigan Law Review

So while the overnight deliberation rule is at least partially bound up with the question of reliability and relates to the judicial process itself, the broader and more fundamental issue raised by this law is whether we should free the guilty to preserve a value that we deem necessary to proper working of the criminal justice process, regardless of the culpability of individual defendants. To this Judge Friendly's answer is generally no, 113 and the MaHaRaL's is yes.

Evaluating The Fourth Amendment Exclusionary Rule: The Problem Of Police Compliance With The Law, William C. Heffernan, Richard W. Lovely

University of Michigan Journal of Law Reform

Part I of this article reviews background matters bearing on our research - in particular, we discuss the Court's framework for analyzing exclusion as a deterrent safeguard, the research questions that need to be raised within that framework, and the research strategy we adopted in light of the Court's approach to exclusion. Part II analyzes our findings on police knowledge of the rules of search and seizure. Part III analyzes our findings on officers' willingness to obey the law. Part IV evaluates our findings in light of policy questions concerning the exclusionary rule. We consider whether the Court should retain …

Controlling Discretion By Administrative Regulations: The Use, Misuse, And The Nonuse Of Police Rules And Policies In Fourth Amendment Adjudication, Wayne R. Lafave

Michigan Law Review

In assaying fourth amendment jurisprudence, it is useful to take into account available knowledge regarding the actual search and seizure practices of the police. Especially helpful is the perspective afforded by the American Bar Foundation's Survey of the Administration of Criminal Justice in the United States, which ranks as the preeminent empirical study of law enforcement procedures in this country. Despite the fact - or, more likely, because of the fact that the ABF Survey was published over twenty years ago, certain insights from that study highlight some recent and significant changes in this corpus juris inconstans .

Clearly "the …

Errors In Good Faith: The Leon Exception Six Years Later, David Clark Esseks

Michigan Law Review

Given this vast literature on the good faith exception, little room appears to exist for additional commentary on the propriety of the decision, its theoretical weaknesses or strengths, or what further changes in constitutional criminal procedure it forebodes. This Note will not add to the many voices complaining of the Court's misconstrual of the grounding of the exclusionary rule, nor of its crabbed notion of deterrence. Instead, it accepts, arguendo, the propriety of the exception and its underlying purpose, and then examines the six-year experience with the revised rule. The proliferation of reported applications of the good faith exception …

In Pursuit Of The Elusive Fourth Amendment: The Police Chase Cases, Ronald J. Bacigal

Law Faculty Publications

The first section of this article considers whether the police officer's intent is an indispensable component of fourth amendment seizures. The second section of the article addresses the Court's efforts to define a seizure· by focusing upon the objective causal link between an officer's efforts to apprehend a suspect and the suspect's attempt to avoid apprehension.

Beyond The Warren Court And Its Conservative Critics: Toward A Unified Theory Of Constitutional Criminal Procedure, Donald A. Dripps

University of Michigan Journal of Law Reform

Part I develops more fully the differences that divide liberal and conservative commentators on criminal procedure, taking special note of the series of Reports prepared by the Justice Department's Office of Legal Policy and published recently in the University of Michigan Journal of Law Reform. Part II explains my disquiet with the suggestion that original-meaning jurisprudence ought to guide criminal procedure doctrine. Part II also defends the thesis that the fourteenth amendment protects the individual interest in freedom from unjust punishment, rather than any abstract interest in truth for its own sake. Part III considers two familiar controversies in criminal …

Remembering The 'Old World' Of Criminal Procedure: A Reply To Professor Grano, Yale Kamisar

Articles

When I graduated from high school in 1961, the "old world" of criminal procedure still existed, albeit in its waning days; when I graduated from law school in 1968, circa the time most of today's first-year law students were arriving on the scene, the "new world" had fully dislodged the old. Indeed, the force of the new world's revolutionary impetus already had crested. Some of the change that the criminal procedure revolution effected was for the better, but much of it, at least as some of us see it, was decidedly for the worse. My students, however, cannot make the …

The Law Of Pretrial Interrogation, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The existing rules in the United States governing the questioning of suspects in custody are based on the Supreme Court's five to four decision in Miranda v. Arizona. The Court in Miranda promulgated a new, code-like set of rules for custodial questioning, including the creation of a right to counsel in connection with custodial questioning, a requirement of warnings, a prohibition of questioning unless the suspect affirmatively waives the rights set out in the warnings, and a prohibition of questioning if the suspect asks for a lawyer or indicates in any manner that he is unwilling to talk. These …

The Search And Seizure Exclusionary Rule, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The fourth amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This guaranty is not self-executing, however, and the courts and criminal justice systems in this country have long been bedeviled by questions concerning appropriate methods of ensuring its observance. As a result of the Supreme Court's decisions in Weeks v. United States and Mapp v. Ohio, the method principally relied upon today is a judicially created rule excluding from criminal trials evidence obtained in violation of the defendant's fourth amendment rights.

The search and seizure …

Police-Obtained Evidence And The Constitution: Distinguishing Unconstitutionally Obtained Evidence From Unconstitutionally Used Evidence, Arnold H. Loewy

Michigan Law Review

The article will consider four different types of police-obtained evidence: evidence obtained from an unconstitutional search and seizure, evidence obtained from a Miranda violation, confessions and lineup identifications obtained in violation of the sixth amendment right to counsel, and coerced confessions. My conclusions are that evidence obtained from an unconstitutional search and seizure is excluded because of the police misconduct by which it was obtained. On the other hand, evidence obtained from a Miranda violation is (or ought to be) excluded because use of that evidence compromises the defendant's procedural right not to be compelled to be a witness against …

'Comparative Reprehensibility' And The Fourth Amendment Exclusionary Rule, Yale Kamisar

Articles

It is not . . . easy to see what the shock-the-conscience test adds, or should be allowed to add, to the deterrent function of exclusionary rules. Where no deterrence of unconstitutional police behavior is possible, a decision to exclude probative evidence with the result that a criminal goes free to prey upon the public should shock the judicial conscience even more than admitting the evidence. So spoke Judge Robert H. Bork, concurring in a ruling that the fourth amendment exclusionary rule does not apply to foreign searches conducted exclusively by foreign officials. A short time thereafter, when an interviewer …

Edward L. Barrett, Jr.: The Critic With 'That Quality Of Judiciousness Demanded Of The Court Itself', Yale Kamisar

Articles

Barrett was as talented and as dedicated a law teacher as any of his distinguished (or soon-to-become-distinguished) contemporaries. But Barrett resisted the movement toward new rights in fields where none had existed before. At least, he was quite uneasy about the trend. To be sure, others in law teaching shared Barrett's concern that the clock was spinning too fast. Indeed, some others were quite vociferous about it.' But because his criticism was cerebral rather than emotional - because he fairly stated and fully explored the arguments urging the courts to increase their tempo in developing constitutional rights - Barrett was …

Two Models Of The Fourth Amendment, Craig M. Bradley

Michigan Law Review

Fourth amendment critics rank in rows, and it has been repeatedly pointed out that individual cases are inconsistent with each other or that whole chunks of doctrine, such as the automobile exception or the plain view exception, are either misconceived, too broad, or too narrow. But these critics all play the Court on its own field, simply arguing as tenth Justices that the doctrines should be tinkered with in different ways than the Court has done. This Article, in contrast, suggests that current fourth amendment law, complete with the constant tinkering which it necessarily entails, should be abandoned altogether. Instead, …

Rejoinder: Truth, Justice, And The American Way--Or Professor Haddad's "Hard Choices", John M. Burkoff

University of Michigan Journal of Law Reform

I frankly think that Professor Haddad's response to my article on pretext searches is first-rate. It is articulate; it is thoughtful and scholarly; it sharpens the issues and the analysis in this area; and, for the most part, I think his criticisms of various portions of my own work present my positions fairly and honestly. On the other hand, I think that Professor Haddad is dead wrong.

Pretextual Fourth Amendment Activity: Another Viewpoint, James B. Haddad

University of Michigan Journal of Law Reform

Pretextual detentions, arrests, and searches pose knotty fourth amendment problems. With an air of plausibility, defense attorneys often accuse police of pretextual use of arrest warrants, search warrants, and various exceptions to the warrant requirement. Specifically, they contend that officers have utilized a particular fourth amendment doctrine to obtain certain evidence even though courts have not assigned as a reason for approving the doctrine the need to discover such evidence.

The Pretext Search Doctrine: Now You See It, Now You Don't, John M. Burkoff

University of Michigan Journal of Law Reform

One can only hope, to put it bluntly, that the Supreme Court majority in Villamonte-Marquez did not mean what it seemed to have said. Indeed, there is some evidence that this is precisely the case. In the same Term Villamonte-Marquez was decided, the Court also decided Texas v. Brown. In Brown, the Supreme Court continued to recognize and respond to the problem of pretext searches. In other words, the Court still acts as if the pretext search doctrine remains vital, despite the apparent body blow delivered to it in Scott and Villamonte-Marquez. The remainder of this Article …

Introduction: Trends And Developments With Respect To That Amendment 'Central To Enjoyment Of Other Guarantees Of The Bill Of Rights', Yale Kamisar

Articles

Seventy years ago, in the famous Weeks case,' the Supreme Court evoked a storm of controversy by promulgating the federal exclusionary rule. When, a half-century later, in the landmark Mapp case,2 the Court extended the Weeks rule to state criminal proceedings, at least one experienced observer assumed that the controversy "today finds its end." 3 But as we all know now, Mapp only intensified the controversy. Indeed, in recent years spirited debates over proposals to modify the exclusionary rule or to scrap it entirely have filled the air - and the law reviews.'

Probable Cause And Common Sense: A Reply To The Critics Of Illinois V. Gates, Joseph D. Grano

University of Michigan Journal of Law Reform

Part I of this article reviews Gates's actual holding. Although one can view much of the Court's more interesting discussion of the two-pronged test as dicta, the majority and dissenters clearly did not regard it as such. The majority and dissenters disagreed, however, not only over the appropriate hearsay test but, more fundamentally, over the nature of probable cause itself. I will argue that one must resolve this more basic disagreement before properly addressing the hearsay issue.

Part II examines probable cause from an historical perspective. In this part, I attempt to demonstrate that both the English common law …