Fourth Amendment Commons^™

Fourth Amendment Limitations On The Execution Of Computer Searches Conducted Pursuant To A Warrant, David Ziff

Articles

Police officers and other government agents commonly seize and search computers during criminal investigations. When reviewing the search of a properly seized computer for compliance with the Fourth Amendment, courts face the complicated task of applying constitutional protections from the eighteenth century to today's computerized world. Many courts and commentators have attempted to draw analogies to old rules or invented new rules to evaluate these computer searches. This Note examines one "special approach" that some courts have adopted to limit the scope of computer searches, and concludes that this special approach is unwarranted. Rather, this Note argues that courts should …

How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar

Articles

Before becoming governor of California, Earl Warren had spent his entire legal career, twenty-two years, in law enforcement. Professor Kamisar maintains that this experience significantly influenced Warren's work as a Supreme Court justice and gave him a unique perspective into police interrogation and other police practices. This article discusses some of Warren's experiences in law enforcement and searches for evidence of that experience in Warren's opinions. For example, when Warren was head of the Alameda County District Attorney's Office, he and his deputies not only relied on confessions in many homicide cases but also themselves interrogated homicide suspects. The seeds …

Constitutional Law—Fourth Amendment—Knock And Announce: The Ninth Circuit Knocks And The Supreme Court Announces A Re-Emphasis On The Case-By-Case Analysis.United States V. Banks, 540 U.S. 31 (2003), Erin Elizabeth Cassinelli

University of Arkansas at Little Rock Law Review

No abstract provided.

Police Shootings Under The Fourth Amendment, Wayne C. Beyer

Richmond Public Interest Law Review

The Fourth Amendment permits police to use deadly force when there is an imminent threat of serious bodily harm or death to themselves or others. Although the governing standard is well established in a general way, its application to particular facts and circumstances may not be clear to officers on the street. Unless a reasonable police officer would have understood that his/her decision to shoot was clearly constitutionally prohibited, the officer may be entitled to qualified immunity, a decision that the court can make on summary judgment before trial. Discussed first are shootings that are not subject to Fourth Amendment …

Nothing New Under The Sun? A Technologically Rational Doctrine Of Fourth Amendment Search, Stephen E. Henderson

Faculty Articles

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Yet as interpreted by the United States Supreme Court, the Amendment places no restriction on police combing through financial records; telephone, e-mail and website transactional records; or garbage left for collection. Indeed there is no protection for any information knowingly provided to a third party, because the provider is said to retain no reasonable expectation of privacy in that information. As technology dictates that more and more of our personal lives are available to anyone equipped to receive them, and as social norms dictate that more and …

Police Shootings Under The Fourth Amendment, Wayne C. Beyer

Richmond Journal of Law and the Public Interest

The Fourth Amendment permits police to use deadly force when there is an imminent threat of serious bodily harm or death to themselves or others. Although the governing standard is well established in a general way, its application to particular facts and circumstances may not be clear to officers on the street. Unless a reasonable police officer would have understood that his/her decision to shoot was clearly constitutionally prohibited, the officer may be entitled to qualified immunity, a decision that the court can make on summary judgment before trial. Discussed first are shootings that are not subject to Fourth Amendment …

Collapsing Spheres: Joint Terrorism Task Forces, Federalism, And The War On Terror, Susan Herman

Faculty Scholarship

No abstract provided.

Neither Big Brother Nor Dead Brother: The Need For A New Fourth Amendment Standard Applying To Emerging Technologies, Casey Holland

Kentucky Law Journal

No abstract provided.

Groh V. Ramirez: Strengthening The Fourth Amendment Particularity Requirement, Weakening Qualified Immunity, C. Brandon Rash

University of Richmond Law Review

No abstract provided.

Data Matching, Data Mining, And Due Process, Daniel J. Steinbock

Georgia Law Review

The Article concerns the governmental use of computerized data matching (comparison of records) and data mining (profiling),which increasingly are aimed at locating potential terrorists. The most striking aspect of virtually all anti-terrorist data matching and data mining decisions is the total absence of even the most rudimentary procedures for notice, hearing, or other opportunities for meaningful participation before, or even after, the deprivation is imposed. The Article evaluates under Fourth Amendment and due process standards a variety of law enforcement activities data matching or data mining might instigate. After reviewing these activities' potential effects on private, governmental, and accuracy interests, …

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

Righteous Shooting, Unreasonable Seizure? The Relevance Of An Officer's Pre-Seizure Conduct In An Excessive Force Claim, Aaron Kimber

William & Mary Bill of Rights Journal

No abstract provided.

A Law Student In The Supreme Court: United States V. Drayton And The Future Of Consent Search Analysis, Dennis J. Callahan

William & Mary Bill of Rights Journal

No abstract provided.

Protestors Have Fourth Amendment Rights, Too: In Graves V. City Of Coeur D'Alene, The Ninth Circuit Clouds Clearly Established Law Governing Searches, Holly Vance

Washington Law Review

In Graves v. City of Coeur d'Alene, the United States Court of Appeals for the Ninth Circuit concluded that a police officer should not have arrested a protestor at an Aryan Nations parade when the protestor refused to allow the officer to search his backpack. The court held that the arrest was illegal because the officer had no probable cause to believe the protestor was carrying a weapon. However, the court also held that the arresting officer was entitled to qualified immunity and thus not liable for his violation of the protestor's rights. Qualified immunity is a privilege that …

Justice In The Time Of Terror, Sharon L. Davies

Michigan Law Review

On my drive into work recently I found myself behind a Ford pickup truck and noticed its bumper sticker: "When the going gets tough, I get a machine gun." Not a doctor. Not a counselor or mediator. Not a shelter for cover. Not the wisdom of a favored advisor or a proven friend. But a machine gun. How odd, I thought, to prefer a weapon incapable of identifying with any precision, any careful thought, where the enemy of the wielder of it might actually be hidden. A weapon as apt to injure non-targets as targets. A weapon mindless of its …

Profiling With Apologies, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

The Fourth Amendment And New Technologies: Constitutional Myths And The Case For Caution, Orin S. Kerr

Michigan Law Review

To one who values federalism, federal preemption of state law may significantly threaten the autonomy and core regulatory authority of The Supreme Court recently considered whether a1mmg an infrared thermal imaging device at a suspect's home can violate the Fourth Amendment. Kyllo v. United States announced a new and comprehensive rule: the government's warrantless use of senseenhancing technology that is "not in general use" violates the Fourth Amendment when it yields "details of the home that would previously have been unknowable without physical intrusion." Justice Scalia's majority opinion acknowledged that the Court's rule was not needed to resolve the case …

Technology, Privacy, And The Courts: A Reply To Colb And Swire, Orin S. Kerr

Michigan Law Review

I thank Sherry Colb and Peter Swire for devoting their time and considerable talents to responding to my article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution. I will conclude with a few comments.

A World Without Privacy: Why Property Does Not Define The Limits Of The Right Against Unreasonable Searches And Seizures, Sherry F. Colb

Michigan Law Review

Imagine for a moment that it is the year 2020. An American company has developed a mind-reading device, called the "brain wave recorder" ("BWR"). The BWR is a highly sensitive instrument that detects electrical impulses from any brain within ten feet of the machine. Though previously thought impossible, the BWR can discern the following information about the target individual: (1) whether he or she is happy, sad, anxious, depressed, or irritable; (2) whether he or she is even slightly sexually aroused; (3) whether he or she is taking any medication (and if so, what the medication is); (4) if a …

Katz Is Dead. Long Live Katz, Peter P. Swire

Michigan Law Review

Katz v. United States is the king of Supreme Court surveillance cases. Written in 1967, it struck down the earlier regime of property rules, declaring that "the Fourth Amendment protects people, not places." The concurrence by Justice Harlan announced the new regime - court-issued warrants are required where there is an infringement on a person's "reasonable expectation of privacy." Together with the companion case Berger v. New York, Katz has stood for a grand conception of the Fourth Amendment as a bulwark against wiretaps and other emerging forms of surveillance. Professor Orin Kerr, in his excellent article, shows that …

Trager Symposium: Our New Federalism? National Authority And Local Autonomy In The War On Terror: Introduction, Susan Herman

Faculty Scholarship

No abstract provided.

Racial Profiling Of African-American Males: Stopped, Searched, And Stripped Of Constitutional Protection, 38 J. Marshall L. Rev. 439 (2004), Floyd D. Weatherspoon

UIC Law Review

No abstract provided.

Overcoming Hiddenness: The Role Of Intentions In Fourth Amendment Analysis, Daniel B. Yeager

Faculty Scholarship

This Article rehearses a response to the problems posed to and by the Supreme Court's attempts to work out the meaning and operation of the word "search." After commencing Part II by meditating on the notion of privacy, I take up its relation to the antecedent suspicion or knowledge that Fourth-Amendment law requires as a justification for all privacy invasions. From there, I look specifically at that uneasy relation in Supreme Court jurisprudence, which has come to privilege privacy over property as a Fourth Amendment value. From there, Part III reviews the sources or bases that can tell us what …

Consent Engendered: A Feminist Critique Of Consensual Fourth Amendment Searches, Dana Raigrodski

Articles

As I will argue, the Court's consent-to-search cases are driven by this patriarchal ideology to maintain social structures of power disparities and to perpetuate the subordination of women, minorities, and other disempowered members of society.

We need to acknowledge the power and submission paradigm that underlies police-citizen encounters and to scrutinize the entire notion of consent. In order to confront both power and consent, I will turn to feminist critique of consent, particularly in the area of rape, and to feminist writings about choice and agency. Based on these writings I will argue that by distinguishing coerced consent to a …

Rethinking Miranda: Custodial Interrogation As A Fourth Amendment Search And Seizure, 37 U.C. Davis L. Rev. 1109 (2004), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Pringle Case's New Notion Of Probable Cause: An Assault On Di Re And The Fourth Amendment, Tracey Maclin

UF Law Faculty Publications

No abstract provided.

Pretextual Use Of Search Warrants In Federal White Collar Criminal Investigations Of Legitimate Businesses To Conduct Custodial Interrogations Of Targets, Employees, And Occupants: Can They Really Do That?, Patrick R. James, Matthew R. House

University of Arkansas at Little Rock Law Review

No abstract provided.

Dawn Raids Here At Home - The Danger Of Vanishing Privacy Expectations For Corporate Employees, Sarah Plotkin Paul

St. Thomas Law Review

This article posits that, due to the limited and diminishing privacy protections for corporate employees, Fourth Amendment jurisprudence is closer to permitting dawn raids in the workplace than popular opinion might suggest. First, the employee "standing" requirement to challenge an illegal search means employees must have a privacy interest in the particular workspace searched. In certain instances, then, individual employees have no way of protesting the use of illegally obtained corporate documents against them, including documents they have authored. Second, there may be few protections available to employees insofar as modem, widely-used workplace technologies are concerned, such as company computers …

Tip-Based Warrantless Searches And Seizures Under The Rubric Of The Investigativedetention Exception To The Warrant Requirement: What Law Enforcementpersonnel Must Understand About Exclusion And Training, Brian Decker

Richmond Public Interest Law Review

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Anthony V. City Of New York, Roy G. Locke Jr.

NYLS Law Review

No abstract provided.