Fourth Amendment Commons^™

Lawlessness Breeds Lawlessness: A Case For Applying The Fourth Amendment To Extraterritorial Searches, Amy E. Pope

Florida Law Review

The purpose of this Article is to revisit the jurisprudence on the Fourth Amendment’s application to extraterritorial searches in which the fruits of seizures are introduced in U.S. courts to prosecute defendants who violate U.S. federal statutes. The Supreme Court has not opined on this issue since 1990,5 and the time for review is ripe.

Reasonable Expectations Of Privacy Settings: Social Media And The Stored Communications Act, Christopher J. Borchert, Fernando M. Pinguelo, David Thaw

Duke Law & Technology Review

In 1986, Congress passed the Stored Communications Act (“SCA”) to provide additional protections for individuals’ private communications content held in electronic storage by third parties. Acting out of direct concern for the implications of the Third-Party Records Doctrine—a judicially created doctrine that generally eliminates Fourth Amendment protections for information entrusted to third parties—Congress sought to tailor the SCA to electronic communications sent via and stored by third parties. Yet, because Congress crafted the SCA with language specific to the technology of 1986, courts today have struggled to apply the SCA consistently with regard to similar private content sent using different …

Justice Scalia's Fourth Amendment: Text, Context, Clarity, And Occasional Faint-Hearted Originalism, Timothy C. Macdonnell

Scholarly Articles

Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology's encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia's opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, …

Future Of The Fourth Amendment: The Problem With Privacy, Poverty And Policing, Kami Chavis Simmons

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

No abstract provided.

Government Retention And Use Of Unlawfully Secured Dna Evidence, Wayne A. Logan

Scholarly Publications

No abstract provided.

A Silver Bullet: Should The Mere Presence Of Ammunition Create A Reasonable Suspicion Of Criminal Activity?, 48 J. Marshall L. Rev. 843 (2015), Kyle Gruca

UIC Law Review

No abstract provided.

The Fourth Amendment In The Digital Age Symposium, Braxton Marcela

Criminal Law Practitioner

No abstract provided.

Supreme Court Jurisprudence Of The Personal In City Of Los Angeles V. Patel, Brian L. Owsley

Michigan Law Review First Impressions

Recently, the Supreme Court issued a 5-4 decision in City of Los Angeles v. Patel striking down a city ordinance that required hotel and motel owners to make their guest registries available to police officers whenever requested to do so. Although the Court’s opinion in Patel simply affirmed the Ninth Circuit’s finding that the ordinance was unconstitutional, the Court could have used Patel to readdress the third-party doctrine, which establishes that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Patel provided a vehicle for the Court to do so, particularly because …

No More Shortcuts: Protect Cell Site Location Data With A Warrant Requirement, Lauren E. Babst

Michigan Telecommunications & Technology Law Review

In modern society, the cell phone has become a virtual extension of most Americans, managing all kinds of personal and business matters. Modern cell tower technology allows cell service providers to accumulate a wealth of individuals’ location information while they use their cell phones, and such data is available for law enforcement to obtain without a warrant. This is problematic under the Fourth Amendment, which protects reasonable expectations of privacy. Under the Katz two-prong test, (1) individuals have an actual, subjective expectation of privacy in their cell site location data, and (2) society is prepared to acknowledge that expectation as …

From Fugitives To Ferguson: Repairing Historical And Structural Defects In Legally Sanctioned Use Of Deadly Force, José F. Anderson

All Faculty Scholarship

The lawful use of lethal force to subdue suspected wrongdoers has a long tradition in our nation. There is certainly nothing wrong with securing, incapacitating, or even killing violent persons who pose a serious threat to the lives of innocent individuals. One of the important roles of government is to protect people from harm and keep the peace. Recent events in Ferguson, Missouri, have highlighted the tension between the officers on the beat and citizens on the street. These tensions are not likely to subside unless there are major structural changes in the way the police do their job and …

Storming The Castle: Fernandez V. California And The Waning Warrant Requirement, Joshua Bornstein

Loyola of Los Angeles Law Review

No abstract provided.

Perceptions Of Search Consent Voluntariness As A Function Of Race, Rebecca M. Gold

Scripps Senior Theses

The United States Constitution provides its citizens protection from unreasonable searches and seizures from government officials, including police officers, through the Fourth Amendment. This Amendment applies to searches that violate a reasonable expectation of privacy. However, the Fourth Amendment does not protect citizens when they consent to a search voluntarily. It is necessary to determine whether or not a search is voluntary by looking at a variety of factors. Although an infinite number of factors can be considered to make this determination, race of both the police officer and of the person being searched should be considered, due to societal …

Consequence, Weapons Of Mass Destruction, And The Fourth Amendment's "No-Win" Scenario, Scott J. Glick

Indiana Law Journal

No abstract provided.

Online Data Breaches, Standing, And The Third-Party Doctrine, Adam Lamparello

Cardozo Law Review de•novo

This Essay argues that, in the context of online data breaches, these doctrines hinder consumers from receiving full monetary compensation and do not adequately safeguard privacy rights. For example, courts frequently dismiss consumers’ suits against online service providers for lack of standing, which results in consumers bearing the cost for damages that the providers were in a position to prevent. This Essay argues that the Supreme Court should relax the standing doctrine’s “imminent harm” requirement and permit consumers to sue providers for mitigation damages. In addition, the Court should abandon the longstanding principle that citizens lose all privacy protections in …

Better The Mob And The Ku-Klux: A History Of The Law Of Search And Seizure In Florida, Milton Hirsch

St. Thomas Law Review

As late as 1930, and on several occasions prior to that date, Harvard Law Professor Felix Frankfurter could offer, as an example of something that the Supreme Court would almost never be called upon to decide, "whether the [Fourth Amendment] protection against 'unreasonable searches and seizures' is violated. In 1939 Professor Frankfurter was appointed to the High Court, where he would serve for 23 years; and where, as Justice Frankfurter, he would participate in a great many notable opinions having to do with whether the Fourth Amendment protection against unreasonable searches and seizures had been violated. That Professor Frankfurter made …

A Comprehensive Analysis Of The History Of Interrogation Law, With Some Shots Directed At Miranda V. Arizona, Tracey Maclin

UF Law Faculty Publications

Police interrogation is designed to convict suspects under arrest or those suspected of crime. It does not matter that the suspect may not be guilty; interrogation is instigated to obtain an incriminating statement that will help convict the suspect. While many are quick to defend what are considered the “respectable freedoms” embodied in the Constitution — freedom of speech, freedom of the press, and freedom of religion — few champion the Fifth Amendment’s bar against compelled self-incrimination, popularly known as the “right to remain silent,” as a basis for a suspect’s right to resist police questioning. Although it has been …

Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin

UF Law Faculty Publications

This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA. Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when …

Furtive Encryption: Power, Trusts, And The Constitutional Cost Of Collective Surveillance, Jeffrey L. Vagle

Indiana Law Journal

Recent revelations of heretofore secret U.S. government surveillance programs have sparked national conversations about their constitutionality and the delicate balance between security and civil liberties in a constitutional democracy. Among the revealed policies asserted by the National Security Agency (NSA) is a provision found in the “minimization procedures” required under section 702 of the Foreign Intelligence Surveillance Act of 1978. This provision allows the NSA to collect and keep indefinitely any encrypted information collected from domestic communications—including the communications of U.S. citizens. That is, according to the U.S. government, the mere fact that a U.S. citizen has encrypted her electronic …

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

Faculty Articles

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between law-enforcement investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited resources to develop countermeasures, law enforcement officers will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game-theoretic model that shows that when law-enforcement investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

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.

Environmental Privacy, Katrina F. Kuh

Utah Law Review

The purpose of this Article is not to anticipate whether or how the Fourth Amendment might apply to specific efforts to collect information about environmentally significant individual behaviors. The purpose is to discern the considerations that have proven salient in balancing environmental regulation and privacy to date that may likewise be relevant to navigating privacy concerns that arise with respect to policy directed to environmentally significant individual behaviors.

In this regard, the Article’s survey suggests that neither the fact that environmentally significant individual behaviors must be aggregated to produce environmental harm nor the fact that individuals, as opposed to commercial …

Unsexing The Fourth Amendment, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Regulating Drones Under The First And Fourth Amendments, Marc Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai

Faculty Articles

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September of this year. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Ultimately, given UAV utility and cost effectiveness over a vast range of tasks, widespread commercial use seems certain. So it is imperative …

The Fourth Amendment And Surveillance In A Digital World, Arthur Leavens

Faculty Scholarship

Technology has transformed government surveillance and opened traditionally private information to official scrutiny. The current privacy-based approach to the Fourth Amendment is unable to cope with the changes. This Article offers a solution to the problems that technological surveillance techniques present. Starting with the introduction of the approach in Katz, the Article reviews the development of privacy-based approach. It then looks at three 21st century Supreme Court cases that grappled with applying the Katz test to advanced technological surveillance techniques: Kyllo, Quon, and Jones. These cases demonstrate the problems that the privacy-based approach creates and the …

Big Data And Predictive Reasonable Suspicion, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics …

Beyond The Fourth Amendment: Additional Constitutional Guarantees That Mass Surveillance Violates, Nadine Strossen

Articles & Chapters

The ongoing dragnet communications surveillance programs raise multiple statutory and constitutional problems. Each problem alone, and even more so the whole combination, provides a serious ground at least for vastly curbing such programs, if not ending them. This Article reviews constitutional challenges to these programs to evaluate the likely success of current and future litigants.

The Death Penalty On The Streets: What The Eighth Amendment Can Teach About Regulating Police Use Of Force, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

The use of force by police officers has traditionally been analyzed through the lens of Fourth Amendment reasonableness. The Supreme Court has decided that the proper question regarding the excessiveness of police force is whether the police officer acted as a reasonable law enforcement officer. When that police force is fatal — what this Article deems the death penalty on the streets — the legal question is the same, leaving us with an analysis that requires a heavy reliance on the officer's version of events and a host of disagreement on what constitutes appropriate police action. Reasonable minds can, …

Robots In The Home: What Will We Have Agreed To?, Margot E. Kaminski

Publications

A new technology can expose the cracks in legal doctrine. Sometimes a technology resists analogy. Sometimes, through analogies, it reveals inconsistencies in the law, or basic flaws in framing, or in the fit between different parts of the legal system. This Essay addresses robots in the home, and what they reveal about U.S. privacy law. Household robots might not themselves uproot U.S. privacy law, but they will reveal its inconsistencies, and show where it is most likely to fracture. Just as drones are serving as a legislative “privacy catalyst” — encouraging the enactment of new privacy laws as people realize …

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

All Faculty Scholarship

With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the …

Consequence, Weapons Of Mass Destruction, And The Fourth Amendment's "No-Win" Scenario, Scott J. Glick

Hofstra Law Faculty Scholarship

This article looks at consequence, with a particular focus on the threatened use of a WMD, to begin a discussion on a new doctrinal solution to the hypothetical. As background, Part I takes a look at cardinal Fourth Amendment principles and rules, as well as the many exceptions to the warrant, probable cause and particularity requirements that the Supreme Court has recognized. Part I also discusses minimization, a well-established privacy enhancing mechanism that normally serves as a back-end check on the government’s conduct, to determine whether it can serve as a front-end substitute for the Fourth Amendment’s particularity requirement. Based …