Fourth Amendment Commons^™

Legal Aspects Of Prior Informed Consent On Access To Genetic Resources, Kuei-Jung Ni

Vanderbilt Journal of Transnational Law

Since the Convention on Biological Diversity (CBD) has been in force, national implementation of the access to and benefit-sharing (ABS) requirement on genetic resources has been flourishing. A requirement of prior informed consent (PIC) by the people controlling access to genetic resources constitutes a major instrument to deter illegal bioprospecting and to ensure fair access to genetic resources.

This Article aims to analyze the continuing global lawmaking on PIC and to conduct a comparative study on how genetically rich nations implement the PIC requirement with a view to examining whether the genuine mandate of the CBD has been fulfilled.

This …

Islam's Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Articles & Chapters

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the FourthAmendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists of …

The Case For The Third-Party Doctrine, Orin S. Kerr

Michigan Law Review

This Article offers a defense of the Fourth Amendment's third party doctrine, the controversial rule that information loses Fourth Amendment protection when it is knowingly revealed to a third party. Fourth Amendment scholars have repeatedly attacked the rule on the ground that it is unpersuasive on its face and gives the government too much power This Article responds that critics have overlooked the benefits of the rule and have overstated its weaknesses. The third-party doctrine serves two critical functions. First, the doctrine ensures the technological neutrality of the Fourth Amendment. It corrects for the substitution effect of third parties that …

The Ice Storm In U.S. Homes: An Urgent Call For Policy Change, Katherine Evans

Faculty Scholarship

Since its creation in 2003, the Bureau of Immigration and Customs Enforcement (ICE) has used increasingly aggressive tactics to enforce U.S. immigration law. One of ICE's most prominent enforcement initiatives is its practice of raiding the homes of immigrants. Accounts of home raids from victims all over the country reveal a pattern of practice that differs widely from ICE's official statements regarding raids. This paper establishes that although immigration officials are governed by the Fourth Amendment when conducting home raids, ICE's agents nonetheless regularly violate the Constitution when carrying out home raids. Additionally, this paper argues that the number and …

Border Searches Of Laptop Computers After United States V. Arnold: Implications For Traveling Professionals, Cooper Offenbecher

Washington Journal of Law, Technology & Arts

The Ninth Circuit Court of Appeals recently held that border searches of laptop computers do not require reasonable suspicion. The decision, in United States v. Arnold, reflects the continued intent of the Ninth Circuit—along with the Fourth Circuit Court of Appeals—to continue analyzing laptop computer searches under the traditional border search doctrine. This article will examine recent laptop computer search cases in light of the border search doctrine and will consider the implications for lawyers and business professionals who travel abroad with confidential information on laptops and other electronic-storage devices. The article will also consider the implications of such …

The Iphone Meets The Fourth Amendment, Adam M. Gershowitz

Faculty Publications

Under the search incident to arrest doctrine, police may search the entire body and immediate grabbing space of an arrestee, including the contents of all containers, without any probable cause. Because almost all traffic infractions are arrestable offenses, police have enormous opportunity to conduct such searches incident to arrest. In the near future, these already high-stakes searches will become even more important because millions of drivers will not only possess containers that hold a few scattered papers, such as wallets or briefcases, but also iPhones—capable of holding tens of thousands of pages of personal information. If current Fourth Amendment jurisprudence …

National Security, Policing, And The Fourth Amendment: A New Perspective On Hiibel, Evan N. Turgeon

Buffalo Public Interest Law Journal

No abstract provided.

Famous For Fifteen Minutes: Ip And Internet Social Networking, Patricia S. Abril, Jonathan Darrow, Peter Ludlow, Michael J. Monahan

Articles

No abstract provided.

Recent Case, Ninth Circuit Considers Community's Racial Tension With Police In Finding Illegal Seizure And Lack Of Voluntary Consent. — United States V. Washington, 490 F.3d 765 (9th Cir. 2007), Portia Pedro

Faculty Scholarship

The traditional story of Fourth Amendment search and seizure doctrine involves a complex compromise between public safety and the constitutional right to personal liberty. Although the choice of viewpoint is often left out of the story, much also depends on whose perspective — police officers’ or civilians’ — a judge employs for search and seizure determinations. The chosen perspective circumscribes the types of facts that a judge considers in these evaluations. In United States v. Washington, the Ninth Circuit held that the district court should have suppressed evidence obtained through a vehicle search because the consent was not voluntary, or, …

The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric B. Easton

Federal Communications Law Journal

Media corporations and their professional and trade associations, as well as organizations such as Reporters Committee for Freedom of the Press and the American Civil Liberties Union, regularly monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. But that was not always the case. While media companies have always lobbied and litigated in support of their business interests-antitrust, copyright, postal rates, taxes-litigation by the institutional press to create or avoid doctrinal precedent under the First Amendment began only in the late 1920s. Once the United States Supreme Court recognized the incorporation of the First …

"Move On" Orders As Fourth Amendment Seizures, Stephen E. Henderson

BYU Law Review

No abstract provided.

Doctrinal Feedback And (Un)Reasonable Care, James Gibson

Law Faculty Publications

The law frequently derives its content from the practices of the community it regulates. Examples are legion: Tort's reasonable care standard demands that we all exercise the prudence of an "ordinary" person. Ambiguous contracts find meaning in custom and usage of trade. The Fourth Amendment examines our collective expectations of privacy. And so on. This recourse to real-world circumstance has in-tuitive appeal, in that it helps courts resolve fact-dependent disputes and lends legitimacy to their judgments. Yet real-world practice can depart from that which the law expects. For example, suppose a physician provides more than reasonable care - extra tests, …

The Return Of Reasonableness: Saving The Fourth Amendment From The Supreme Court, Melanie D. Wilson

Scholarly Articles

Although there is no recipe for defining Fourth Amendment reasonableness, the Supreme Court produces its most anomalous Fourth Amendment outcomes when it decides "mixed" questions of reasonableness, assessing issues that turn on how ordinary, prudent citizens think and behave. The Court treats these mixed issues, combinations of fact and law, as if they raise purely legal questions. But mixed issues are more complex and require someone to determine historical facts, apply those facts to principles of Fourth Amendment law, and consider the totality of the circumstances, including taking into account community and cultural influences. The Supreme Court will take its …

Search Protocols: Establishing The Protections Mandated By The Fourth Amendment Against Unreasonable Searches And Seizures In The World Of Electronic Evidence, Derek Haynes

McGeorge Law Review

No abstract provided.

Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman

Faculty Publications

In Scott v. Harris (2007), the Supreme Court granted summary judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting summary judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to any interpretation …

Fourth Amendment Challenges To Camping Ordinances: A Legal Strategy To Force Legislative Solutions To Homelessness, Nicholas May

Richmond Journal of Law and the Public Interest

This Article argues that Fourth Amendment challenges to camping ordinances can prompt legislative efforts to solve the problem of homelessness in U.S. cities. By properly employing the Supreme Court of the United States' judicial standard for privacy rights, courts should consider the efforts of individual cities' efforts to curb poverty when asking the following question: does society view a homeless person's expectation of privacy as reasonable?

The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers

Faculty Scholarship

No abstract provided.

Surveillance And Identity Performance: Some Thoughts Inspired By Martin Luther King, Frank Rudy Cooper

Scholarly Works

In this article, Professor Frank Cooper explores self-actualization, the process whereby people create their own identity by means of experimenting with different behaviors, in the context of Martin Luther King, Jr. and the FBI surveillance he was subjected to in the time leading up to his death. He argues that it is possible for people to live in an environment that is more or less alienating to the way in which they perform their identities. Performativity scholars such as Devon Carbado and Mitu Gulati say that people can have an internal sense of self that is distinct from the identity …

Alternatives To The Exclusionary Rule After Hudson V. Michigan: Preventing And Remedying Police Misconduct, Alicia M. Hilton

Villanova Law Review (1956 - )

No abstract provided.

Reasonableness And Objectivity: A Feminist Discourse Of The Fourth Amendment, Dana Raigrodski

Articles

This article suggests that a critical reexamination of the Fourth Amendment and its jurisprudence through feminist lenses can shed new light and add to our understanding of it. These insights, in turn, can and should generate a positive feminist Fourth Amendment jurisprudence—a distinctive feminist voice to be integrated systematically into the law of search and seizure, leading to a transformation of the Fourth Amendment itself. Applying feminist theories to particular issues and normative layers of current Fourth Amendment jurisprudence may help guide us through the more difficult task of imagining a feminist jurisprudence of search and seizure law.

What Is "Blowing In The Wind"? Reopening The Exclusionary Rule Debate, John B. Rayburn

West Virginia Law Review

No abstract provided.

Waiting For The Other Shoe: Hudson And The Precarious State Of Mapp, David A. Moran

Articles

I have no idea whether my death will be noted in the New York Times. But if it is, I fear the headline of my obituary will look something like: "Professor Dies; Lost Hudson v. Michigan' in Supreme Court, Leading to Abolition of Exclusionary Rule." The very existence of this Symposium panel shows, I think, that my fear is well-grounded. On the other hand, I am not quite as fearful that Hudson foreshadows the complete overruling of Mapp v. Ohio2 and Weeks v. United States3 as I was when I published an article just three months after the Hudson decision …

Bearing False Witness: Perjured Affidavits And The Fourth Amendment, Stephen W. Gard

Law Faculty Articles and Essays

The purpose of this Article is to articulate appropriate legal doctrine to govern the problem of false statements of fact by law enforcement officers in warrant affidavits. This Article addresses the issue in the context of actions brought pursuant to 42 U.S.C. § 1983 to redress such Fourth Amendment violations. This perspective promises to be interesting and unique for two reasons. First, the fact that the guilty are ordinarily the direct beneficiaries of the Fourth Amendment has long been a matter of grave concern. In contrast, rarely, if ever, will anyone except an innocent victim of a search based on …

Roth At Fifty: Reconsidering The Common Law Antecedents Of American Obscenity Doctrine, 41 J. Marshall L. Rev. 393 (2008), James R. Alexander

UIC Law Review

No abstract provided.

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 …

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

Faculty Scholarship

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 …

Jail Strip-Search Cases: Patterns And Participants, Margo Schlanger

Articles

Among Marc Galanter’s many important insights is that understanding litigation requires understanding its participants. In his most-cited work, Why the “Haves” Come Out Ahead, Galanter pioneered a somersault in the typical approach to legal institutions and legal change: Most analyses of the legal system start at the rules end and work down through institutional facilities to see what effect the rules have on the parties. I would like to reverse that procedure and look through the other end of the telescope. Let’s think about the different kinds of parties and the effect these differences might have on the way the …

Inequality In The Game Vs. Inequality In The Legal System: The Constitutionality Of Searches And Seizures In United States V. Comprehensive Drug Testing, Elizabeth Rocco

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Fourth Amendment Challenges To Camping Ordinances: A Legal Strategy To Force Legislative Solutions To Homelessness, Nicholas May

Richmond Public Interest Law Review

This Article argues that Fourth Amendment challenges to camping ordinances can prompt legislative efforts to solve the problem of homelessness in U.S. cities. By properly employing the Supreme Court of the United States' judicial standard for privacy rights, courts should consider the efforts of individual cities' efforts to curb poverty when asking the following question: does society view a homeless person's expectation of privacy as reasonable?

Fourth Amendment Protection For Stored E-Mail, Patricia L. Bellia, Susan Freiwald

Journal Articles

The question of whether and how the Fourth Amendment regulates government access to stored e-mail remains open and pressing. A panel of the Sixth Circuit recently held in Warshak v. United States, 490 F.3d 455 (6th Cir. 2007), that users generally retain a reasonable expectation of privacy in the e-mails they store with their Internet Service Providers (ISPs), which implies that government agents must generally acquire a warrant before they may compel ISPs to disclose their users' stored e-mails. The Sixth Circuit, however, is reconsidering the case en banc. This Article examines the nature of stored e-mail surveillance and argues …