Fourth Amendment Commons^™

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 …

Rights, Remedies, And The Quantum And Burden Of Proof, Joelle A. Moreno

Faculty Publications

It is tempting to commemorate the 2014 centenary of the exclusionary rule by celebrating our historically progressive role in constitutional rights protection, but those familiar with the facts know that Fourth Amendment violations persist unabated. As New Yorkers consider Judge Scheindlin’s damning assessment of police stop-and-frisk practices, and the country erupts in protests following fatal police encounters, are legal scholars who continue to pontificate on constitutional bona fides addressing “real” Fourth Amendment questions?

Traditional academic abstraction and artificial doctrinal divides obscure the fact that rights and remedies are defined by their operation. Constitutional rights have no value if, after they …

Substitute Arguments In Constitutional Law, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In this article, I argue that that substitution is crucial to our practice of constitutional law. Of course, if one wished, one could easily extend the domain of substitution beyond these boundaries. Substitute arguments are an important aspect of law more generally and, indeed, of life. I have nonetheless chosen to limit my discussion to constitutional substitution because, I believe, overt discussion of substitution in this particular area illuminates important aspects of our constitutional regime-–aspects that substitution itself regularly obscures. To put my central point directly, I hope to show that constitutional law amounts to one, giant substitute argument.

Following The Script: Narratives Of Suspicion In Terry Stops In Street Policing, Jeffery Fagan, Amanda Geller

Faculty Scholarship

Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts in which police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment …

The Un-Territoriality Of Data, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorities depend on whether the target is located within the United States or without; and courts’ warrant jurisdiction extends, with limited exceptions, only to the borders’ edge. Yet the rise of electronic data challenges territoriality at its core. Territoriality, after all, depends on the ability to define the relevant “here” and “there,” and it presumes that the “here” and “there” have normative significance. The …

Widening The Aperture On Fourth Amendment Interests: A Comment On Orin Kerr's The Fourth Amendment And The Global Internet, David G. Delaney

Articles by Maurer Faculty

Physical-world law may not be suitable for cyberspace. For example, the Supreme Court's "sufficient connection" test in U.S. v. Verdugo-Urquidez (1990) is inconsistent with the century-long trend for courts to find greater constitutional protections for those subject to U.S. jurisdiction outside the United States. Courts must maintain flexibility to conceive of a Fourth Amendment that does not depend exclusively on territory to fulfill its twin aims of ordering government and enabling redress of liberty infringements. Federal and state courts and legislatures addressing searches, seizures, and surveillance in cyberspace should seek simple rules that can easily adapt as cyberspace and government …

The Dawn Of Social Intelligence (Socint), Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

More information about citizens’ lives is recorded than ever before. Because the data is digitized, it can be accessed, analyzed, shared, and combined with other information to generate new knowledge. In a post-9/‌11 environment, the legal standards impeding access to such data have fallen. Simultaneously, the advent of global communications and cloud computing, along with network convergence, have expanded the scope of information available. The U.S. government has begun to collect and to analyze the associated data.

The result is the emergence of what can be termed “social intelligence” (SOCINT), which this Article defines as the collection of digital data …

High Technology, Consumer Privacy, And U.S. National Security, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Documents released over the past year detailing the National Security Agency’s (“NSA”) telephony metadata collection program and interception of international content under the Foreign Intelligence Surveillance Act (FISA) implicated U.S. high technology companies in government surveillance. The result was an immediate, and detrimental, impact on U.S. corporations, the economy, and U.S. national security.

The first Snowden documents, printed on June 5, 2013, revealed that the government had served orders on Verizon, directing the company to turn over telephony metadata under Section 215 of the USA PATRIOT Act. The following day, The Guardian published classified slides detailing how the NSA had …

Resisting Wholesale Electronic Invasion Of The Fourth Amendment, Michael E. Tigar

Faculty Scholarship

No abstract provided.

The Supreme Digital Divide, Mary Graw Leary

Scholarly Articles

Society has long struggled with the meaning of privacy in a modern world. This struggle is not new. With the advent of modern technology and information sharing, however, the challenges have become more complex. Socially, Americans seek to both protect their private lives, and also to utilize technology to connect with the world. Commercially, industries seek to obtain information from individuals, often without their consent, and sell it to the highest bidder. As technology has advanced, the ability of other individuals, institutions, and governments to encroach upon this privacy has strengthened. Nowhere is this tension between individual privacy rights and …

Appellate Division, First Department, People V. Celaj, Danielle Dupré

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, People V. Johnson, Denise Shanley

Touro Law Review

No abstract provided.

False Arrest, Malicious Prosecution, And Abuse Of Process In § 1983 Litigation, John Williams

Touro Law Review

No abstract provided.

Qualified Immunity In The Fourth Amendment: A Practical Application Of 1983 As It Applies To Fourth Amendment Excessive Force Cases, Karen Blum

Touro Law Review

No abstract provided.

Rediscovering Trespass: Towards A Regulatory Approach To Defining Fourth Amendment Scope In A World Of Advancing Technology, Martin R. Gardner

Buffalo Law Review

No abstract provided.

Stopping Police In Their Tracks: Protecting Cellular Location Information Privacy In The Twenty-First Century, Stephen Wagner

Duke Law & Technology Review

Only a small fraction of law enforcement agencies in the United States obtain a warrant before tracking the cell phones of suspects and persons of interest. This is due, in part, to the fact that courts have struggled to keep pace with a changing technological landscape. Indeed, courts around the country have issued a disparate array of holdings on the issue of warrantless cell phone tracking. This lack of judicial uniformity has led to confusion for both law enforcement agencies and the public alike. In order to protect reasonable expectations of privacy in the twenty-first century, Congress should pass legislation …

County Court, Westchester County, People V. Gant, Albert V. Messina Jr.

Touro Law Review

No abstract provided.

Supreme Court, Bronx County, People V. Barnville, David Schoenhaar

Touro Law Review

No abstract provided.

Justification For Police Intrusions, Corey Rashkover

Touro Law Review

No abstract provided.

Interpreting Search Incident To Arrest In New York: Past, Present, And Future, Jacqueline Iaquinta

Touro Law Review

No abstract provided.

Search And Seizures: Constitutionally Protected Or Discretionary Police Work?, Jaren Fernan

Touro Law Review

No abstract provided.

Seize First, Search Later: The Hunt For Digital Evidence, Paige Bartholomew

Touro Law Review

No abstract provided.

Swearing By New Technology: Strengthening The Fourth Amendment By Utilizing Modern Warrant Technology While Satisfying The Oath Or Affirmation Clause, Andrew H. Bean

BYU Law Review

No abstract provided.

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

Faculty Publications

For decades, the reasonable expectation of privacy has been the primary standard by which courts have determined whether a "search" has occurred within the meaning of the Fourth Amendment. The Supreme Court's recent decision in U.S. v. Jones, however, has reinvigorated the physical trespass doctrine's importance when determining whether there has been a "search" triggering constitutional protection. Recognizing the unpredictability of the reasonable expectation of privacy doctrine and that doctrine's bias against the urban poor, many scholars hope that the Jones opinion may ameliorate the class divide that has developed in Fourth Amendment jurisprudence.

This Article argues that while …

Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbulling Laws, Emily Suski

Faculty Publications

For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This …

The Fatal Flaws Of The 'Sneak And Peek' Statute And How To Fix It, Jonathan Witmer-Rich

Law Faculty Articles and Essays

In the USA PATRIOT Act, Congress authorized delayed notice search warrants — warrants authorizing a “sneak and peek” search, in which investigators conduct covert searches, notifying the occupant weeks or months after the search. These warrants also sometimes authorize covert seizures — a “sneak and steal” search — in which investigators seize evidence, often staging the scene to look like a burglary.

Covert searches invade the privacy of the home and should be used only in exceptional cases. The current legal rules governing delayed notice search warrants are conceptually flawed. The statute uses a legal doctrine — “exigent circumstances” — …

The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin

Faculty Publications

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all …

Redefining The Right To Be Let Alone: Privacy Rights And The Constitutionality Of Technical Surveillance Measures In Germany And The United States, Nicole Jacoby

Georgia Journal of International & Comparative Law

No abstract provided.

The Fourth Amendment In Schools: An Ambiguous Precedent And The Role Of Gender In Determining Reasonableness, Maria M. Lewis

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.

Minding Your Meds: Balancing The Needs For Patient Privacy And Law Enforcement In Prescription Drug Monitoring Programs, Devon T. Unger

West Virginia Law Review

No abstract provided.