Fourth Amendment Commons^™

Decentering Property In Fourth Amendment Law, Michael C. Pollack, Matthew Tokson

Articles

For the past several decades, privacy has been the primary conceptual foundation for Fourth Amendment search law. The canonical test for Fourth Amendment searches accordingly looks to whether the government has violated a person’s reasonable expectation of privacy. Yet privacy is no longer the sole determinant of Fourth Amendment protection, as the Supreme Court has recently added a property-based test to address cases involving physical intrusions on land or chattel. Further, given the ambiguity of the reasonable expectation of privacy test, a variety of influential judges and scholars have proposed relying primarily, or even exclusively, on property in determining the …

Byte By Byte: Breaking Down The Third-Party Doctrine And Reproductive Health Apps After Dobbs, Travis Handler

Oklahoma Law Review

No abstract provided.

Free Movement Rights And The American City, Ryan Stoa

FIU Law Review

American cities are facing an inflection point. Widespread dissatisfaction with urban planning outcomes is making land use and transportation policies (such as congestion pricing) a mainstream topic of debate. Suburban sprawl and housing shortages are moving urban populations into the periphery, commuting times (and associated mental health problems) are increasing, and pedestrian and cyclist deaths caused by vehicles are at all-time highs. American cities that were largely planned and built in the twentieth century based on assumptions that we now know are flawed are not meeting the needs of their residents, and urban planners are making changes to reshape urban …

Consensus And Conflict Over Context: Select Criminal Law And Procedure Cases From The Supreme Court's 2024-25 Term, Eve Brensike Primus, Elena Schultz

Articles

In its 2024-2025 Term, the Supreme Court emphasized the utility—and necessity—of context-based, fact-sensitive analyses throughout its criminal law and procedure cases. Though the Justices sparred over how to derive meaning from factual, structural, legal, and historical contexts, they tended to agree that courts should not be artificially restricted from considering the breadth of the record before them.

Caught In The Crosshairs: Predictive Policing And The Use Of Force, Matthew D. Zampa

University of San Francisco Law Review

No abstract provided.

Family Regulation's Consent Problem, Anna Arons

Faculty Publications

The home is the most protected space in constitutional law. But family regulation investigators conduct millions of home searches a year. Under pressure, parents nearly always consent to these state agents’ entry into the most private areas of their lives.

This Article identifies the coercive forces—not least the threat of family separation—that drive parents to consent to home searches. Drawing on primary sources and case law examining consent in criminal cases, it shows that common family regulation investigation tactics render consent involuntary and the ensuing searches unconstitutional. And yet, it argues, the Constitution is not enough. Though constitutional litigation could …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Remedying Unconstitutional Immigration Enforcement, Guha Krishnamurthi

Cardozo Law Review de•novo

Fearmongering about “illegal immigration” has reached a fever pitch. There is a nearing bipartisan consensus among politicians that “stopping illegal immigration and securing the border” is a paramount priority. The fact that many politicians and institutional actors have displayed animus in discussing immigration enforcement portends that many perils lie ahead. It is precisely during this time that constitutional rights must serve as a bulwark against government overreach. This Essay contends that our constitutional rights framework, specifically its principal remedies for rights violations, are inadequate to protect against government malfeasance. In particular, I demonstrate that there are plausible scenarios where the …

State V. Sweatt: An Examination Of The Current Confusion In Fourth Amendment Standing, John Archer Hobson

Maine Law Review

In State v. Sweatt the Maine Law Court held that an owner of gems being sold on consignment in a third party's store has standing under the fourth amendment to contest the seizure of the gems. The movants in Sweatt were the targets of several police searches during October and November of 1980. During these searches the police seized tourmaline gemstones which were alleged to have been stolen from Dale Sweatt's former business partner, and miscellaneous personal items belonging to the Sweatts. Subsequently, the Sweatts moved for suppression and return of all these articles. The superior court granted the movants' …

Utah V. Strieff And Teaching Analysis, Lisa A. Tucker

St. John's Law Review

(Excerpt)

In Utah v. Strieff, the Supreme Court considered whether the Fourth Amendment required suppression of evidence obtained in an unlawful investigatory stop when police discovered that the person stopped was subject to lawful arrest based on an unrelated outstanding warrant. The majority opinion, written by Justice Clarence Thomas, held that suppression was not required in such a case; the dissent by Justice Sotomayor argued that it should be.

These two legal opinions took jarringly different approaches to determining a question of law, one that disproportionately impacts people of color, who are statistically most likely to be unlawfully stopped …

After The Age Of Discretion: Policing And Privacy In A World Of Automated Roadway Enforcement, Trayce Hockstad, Lawrence Cappello

St. John's Law Review

(Excerpt)

Our Fourth Amendment attempts to harmonize in fifty-eight words the tenuous, antagonistic relationship between privacy and public safety. These two values appear to be deadlocked in a contentious legal orbit, leaving behind them a trail of fascinating but foreboding jurisprudence in American law. The fundamental need of individuals for spaces of seclusion from government surveillance has endured a slow siphoning of its constitutional protection by the encroaching definition of the “public” and the perceived need to police every person and place that may be considered so. Nowhere has this proven truer than our nation’s roadways. As the judicial system …

Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine, Wayne A. Logan

Buffalo Law Review

No abstract provided.

Imperfect Protection Against Perfect Enforcement: When Procedure Is Not Enough, William S. Fallon

Connecticut Law Review

Government technology that exclusively detects illegal conduct is per se constitutional. Today, the Fourth Amendment provides no protection—zero—against government technology that identifies illegality without also revealing private, innocent behavior.

Meanwhile, alarmingly, government is rapidly developing—and deploying— technology that bypasses the need to examine private, innocent behavior in its detection of wrongdoing. Government can know there is contraband in your bedroom drawer without the need to rummage through that drawer, your home, or any of your private information and possessions. Government can know there is illegal content on your phone without the need to search through that phone or any of …

Will Bruen Kill Cops?, Peter N. Salib, Guha Krishnamurthi

Fordham Law Review Online

Criminal procedure is a balancing act. On one hand, it must allow law enforcement officers to protect the public and themselves. On the other hand, criminal procedure must safeguard citizens’ individual constitutional rights—privacy, physical liberty, and bodily integrity. And now, the right to bear arms.

There is a serious tension here. Landmark Fourth Amendment cases like Terry v. Ohio, Pennsylvania v. Mimms, and Chimel v. California give the police wide latitude to seize firearms on the assumption that guns are dangerous. But these doctrines largely evolved before the Second Amendment’s ascendance. In District of Columbia v. Heller, …

Egbert V. Boule And The Dwindling Bivens Doctrine, Luke Smith

MC Law Review

No abstract provided.

What's Love Got To Do With It? Davis V. Henderson And A Proposed Revision To Mississippi's Termination Of Child Support Standard, Maddie Woodhead

MC Law Review

No abstract provided.

Criminal Juror Challenges And Csli: A Rule 16 Revision To Maintain Impartial Juries, Ivy Kaplan

Northwestern University Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants “the right to a speedy and public trial by an impartial jury of the State.” Voir dire, the procedure during which the prosecution and the defense may challenge prospective jurors for cause or exercise peremptory challenges, purports to uphold this right. When the prosecution has access to cellular geolocation data on prospective jurors that the defense lacks, however, it may jeopardize the defendant’s Sixth Amendment rights.

This Note proposes a solution to that problem in the form of an addition to Rule 16 of the Federal Rules of Criminal Procedure. …

United States V. Jones: Big Brother And The "Common Good" Versus The Fourth Amendment And Your Right To Privacy, Melanie Reid

Tennessee Journal of Law and Policy

No abstract provided.

State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron

Maine Law Review

Law enforcement officers often have occasion to follow the path to the front door of a residence in order to speak to its occupant. Upon answering the door, the occupant may hear a complaint about his barking dog, a query as to whether he witnessed the burglary next door, or a plea seeking support for the police department's Christmas charity drive. Occasionally, a police officer follows the path to a person's door and unexpectedly observes incriminating evidence or activities. In such cases, the police officer's conduct generates the issue of whether his observation implicates the fourth amendment's prohibition against unreasonable …

The Problem Of Third-Party Consent In Fourth Amendment Searches: Toward A "Conservative" Reading Of The Matlock Decision, Robert Deschene

Maine Law Review

In United States v. Matlock, the United States Supreme Court delivered its most recent and comprehensive statement on the doctrine of third-party consent. Under the doctrine, police may search a defendant's home or effects without first obtaining a judicially issued search warrant. Instead of this traditional prerequisite for a valid fourth amendment search, the police need only have the voluntary consent of a third person who possesses "common authority" over or a "sufficient relationship" to the area to be searched. At that point, the defendant's own consent becomes largely irrelevant. Both the United States and Maine constitutions provide protection against …

Unfenced: The Fourth Circuit Gives Geofencing Its First Appellate Go-Ahead In United States V. Chatrie, Jordan Wallace-Wolf

Washington and Lee Law Review Online

In United States v. Chatrie, the Fourth Circuit issued the first federal appellate opinion on the Fourth Amendment status of geofencing queries. The opinion is significant because geofences present a conceptual challenge to the framework of Carpenter v. United States, the reigning Supreme Court precedent on the Fourth Amendment status of digital searches. That opinion held that long-term tracking of a target individual was a search. However, geofencing reveals information about an indeterminate number of individuals for only a short time, in virtue of their being at a target location during a target span of time. Does the …

State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron

Maine Law Review

Law enforcement officers often have occasion to follow the path to the front door of a residence in order to speak to its occupant. Upon answering the door, the occupant may hear a complaint about his barking dog, a query as to whether he witnessed the burglary next door, or a plea seeking support for the police department's Christmas charity drive. Occasionally, a police officer follows the path to a person's door and unexpectedly observes incriminating evidence or activities. In such cases, the police officer's conduct generates the issue of whether his observation implicates the fourth amendment's prohibition against unreasonable …

Back To The Future: Revisiting State Constitutions To Protect Against New Technological Intrusions, Matthew Radford

Washington and Lee Law Review

The Fourth Amendment is crucial for protecting Americans from government intrusion. However, new technologies such as pole cameras, reverse keyword searches, and geofence searches provide new ways for governments to gather information about individuals. As these new technologies develop, the Fourth Amendment has struggled to advance alongside this new technology.

Thankfully, the Fourth Amendment is not the only protection Americans have from government intrusion. Every single state has its own state constitution and analog to the Federal Fourth Amendment. In fact, some states had their own analog amendments even before the adoption of the Federal Fourth Amendment. While oftentimes the …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

Black Lives Still Matter: The Unconstitutionality Of The Reasonableness Standard In The Doctrine Of Qualified Immunity, Angela D. Minor, Esq.

University of the District of Columbia Law Review

No abstract provided.

Mental Health Response To 911 Calls: Defunding The Police, Now With All Of The Danger And None Of The Protection, Marcia M. Ziegler

University of the District of Columbia Law Review

No abstract provided.

Dobbs Was Wrong: The Liberty To Choose To Give Birth Should Be Federally Protected, Alysa J. Wiggins

University of the District of Columbia Law Review

No abstract provided.

An Analysis Of United States V. Morta: Refining The Application Of The Other-Indicia Approach To Criminal-Alias Mail, Nicholas Manning

Pepperdine Law Review

Americans who use their legal names to send and receive mail through traditional postal services have long maintained a reasonable expectation of privacy in that mail under the Fourth Amendment. Courts have also recognized that even those who use aliases with traditional postal services have a reasonable expectation of privacy in their mail. But circuit courts have split over whether Americans who use aliases in mail purely for criminal purposes—such as sending or receiving drugs—should have that same expectation of privacy. More specifically, courts disagree over the correct approach to analyze a defendant’s criminal-alias mail for purposes of Fourth Amendment …