Fourth Amendment Commons^™

Fourth Amendment Anti-Theory, Matthew Tokson

Michigan Law Review

A review of The Digital Fourth Amendment: Privacy and Policing in Our Online World. By Orin Kerr.

Privacy As A Democratic Guardrail: A Case For Fourth Amendment Constraints On Micro-Targeted Rhetoric, Susan Tanner

Nevada Law Journal

No abstract provided.

The Martha Wright-Reed Act: How The Fcc Took One Step Forward For Communication Equality For Deaf Individuals In Correctional Facilities And How It Could Be Expanded, Ashley Seebold

Seattle University Law Review

For decades, phone companies preyed on incarcerated individuals and their loved ones due to the lack of regulation of jail phone calls.2 In 2021, the average cost of a fifteen-minute jail phone call was about $3.3 In 2022, the average cost rose to $5.74, while some individuals faced an extreme charge of $24.82 for the same amount of time.4 In the early 2000s, consumer advocate and concerned grandmother Martha Wright-Reed called upon the Federal Communications Commission (FCC) to fix the imbalance so she could speak to her incarcerated grandson.5 Eventually, in 2023, the FCC answered her call to action and …

Forever Is Too Long: Rethinking Consent And Genetic Privacy Under The Fourth Amendment, Abigail Oberbeck

University of Cincinnati Law Review

No abstract provided.

Eye In The Sky: The Eleventh Circuit Allows Warrantless Surveillance Of The Home Via Pole Cameras In United States V. Gregory, John T. Roberts

Mercer Law Review

What does “search” mean? Defining the word seems simple enough, yet, courts have struggled to provide a consistent answer under Fourth Amendment jurisprudence. This difficulty has only been exacerbated by rapidly advancing technological innovations in the field of surveillance. Specifically, courts across the country are split on whether long-term surveillance of an individual’s home via a pole camera is considered a search under the Fourth Amendment.

In United States v. Gregory, the United States Court of Appeals for the Eleventh Circuit addressed this issue head on, holding that surveillance of this kind is not considered a search under the Fourth …

Finally, A Fair Shot: Supreme Court Shoots Down The Moment-Of-Threat Doctrine In Barnes V. Felix, Noah Ring

Mercer Law Review

The Framers designed America’s legal system with the belief that no one, not even the government, is above the law. The right to hold government officials accountable before a court reflects the Framers’ vision that justice resides in the people themselves. Unfortunately, countless citizens who suffer excessive force are barred from presenting their stories to the jury. Nowhere is the clash between liberty and authority more visible than in encounters between police and citizens. Every day, those who wear the badge are forced to make difficult judgment calls in volatile situations.

In 2024, 147 officers lost their lives in the …

What Is A House?: Searching For The Meaning And Scope Of Curtilage At Common Law, Mitchell A. Del Bianco

Fordham Law Review Online

No abstract provided.

Saying What The Law Might Be? Courts, Geofence Warrants, And The Fourth Amendment Labyrinth, Ciara Lavin

Cardozo Law Review

Since 2016, Google has received thousands of geofence warrant requests from law enforcement, requesting Google to scan through its vast database of users to identify who and what devices entered into, or exited out of, a set of coordinates in a specified period of time. Several cases began making their way through the federal courts to delineate the legality of such warrants—with challenges spanning the vast amount of data they search, their relative accuracy, and whether they comported with the Fourth Amendment. Then, in the summer of 2024, two federal appellate courts handed down decisions just weeks apart: the Fourth …

Raising The Bar: Virginia Constitutional Interpretation Post-Vlaming, The Honorable Lisa M. Lorish, Alec Block, Amy Vanderveer

University of Richmond Law Review

Across the United States, dozens of state supreme courts choose to interpret their state constitutions as co-extensive, or in “lockstep” with analogous provisions of the Constitution of the United States. Yet since the Supreme Court overruled or changed its interpretation in a number of rights-based cases, state constitutions are receiving new attention. In Virginia, several years before Dobbs sparked this new focus, the Supreme Court of Virginia departed from the Supreme Court of the United States’ interpretation of its Free Exercise Clause analogue and adopted a new standard providing increased protection. In doing so, the Court signaled its willingness to …

Reasonable, Legal, Voluntary? Grants Pass Decision Sparks Need For A Revised Fourth Amendment Search Analysis In The Context Of Homelessness, Hali R. Woods

Catholic University Law Review

On June 28, 2024 the Supreme Court decided City of Grants Pass, Oregon v. Johnson.  The case addressed whether the enforcement of city ordinances regulating camping on public property against individuals including respondents, unhoused individuals residing in the city of Grants Pass, constituted cruel and unusual punishment under the Eighth Amendment.  The Court upheld enforcement of the ordinances and since then approximately 150 cities across the United States have passed similar ordinances or strengthened existing similar laws.  This comment evaluates how Grants Pass is an Eighth Amendment case with Fourth Amendment consequences which sparks a need for a revised …

Or Else: Statutes Without Sanctions And The Doctrine Of Meaningful Interpretation, Christian Davis

Washington and Lee Law Review Online

Mankind has been fashioning laws for millennia. And while the form and substance of laws vary widely across times and places, all laws are unified by a fundamental reality that transcends the particular legal and political institutions of the day. To put it simply: laws only work if someone is prepared to enforce them.

As arbiters of the American legal system, state and federal judges are aware that—in order for a law to have the conduct-influencing effect it was designed to have—it must be supported by some version of an “or else” clause, a punishment or penalty sufficient to dissuade …

Hester's Dubious Roots And Legacy: Open Fields Doctrine Under Scrutiny, Laura K. Donohue

Texas A&M Law Review

For over a century, open fields doctrine has shaped Fourth Amendment law, denying people the right to be secure on their own property. Its impact has steadily expanded, with the result that, by some estimates, the government can now engage in warrantless surveillance of some 96% of private land and buildings regardless of fences, postings, the distance from public roads or byways, or the use to which the property is put. An originalist approach throws the doctrine into disarray: at the time of the Founding, common law protected the curtilage, which extended to the fields, barns, storehouses, and other buildings …

Engineered For Surveillance: Public Safety, Roadway Science, And The Fourth Amendment, Trayce Hockstad, Steven Jones

Idaho Law Review

No abstract provided.

The Corporate Transparency Act: Substantial Modifications Are Desperately Needed (And They Might Just Help The Law Withstand Judicial Scrutiny), Lawrence Bialek

Michigan Business & Entrepreneurial Law Review

For decades, the United States has had a reputation as the place to go for bad actors looking to launder money and fund criminal activities. Attempting to rectify this situation, Congress spent years drafting legislation to serve as a deterrent. The product, the Corporate Transparency Act (CTA), was the culmination of years of work by legislators across the aisle and multiple Congresses. The CTA’s mandatory reporting requirement sought to create a centralized database of information about all entities doing business in the United States, both foreign and domestic, and the individuals in positions of authority for each of those entities. …

Reel It In: Untangling The Circuit Split On The Constitutionality Of Geofence Warrants Under The Fourth Amendment, Kate P. Risser

Washington and Lee Journal of Civil Rights and Social Justice

This Note examines geofence warrants and their ongoing threat to constitutionally protected rights such as privacy, speech, and assembly. Part I will provide background information on geofence warrants and examine the prominent justifications for the use of the warrants. Part II will examine how law enforcement’s use of geofence warrants threatens citizens’ constitutionally protected fundamental rights like privacy and reproductive rights. Specifically, Part II addresses how geofence warrants disproportionately target and affect women, people of color, and low-income individuals. Part III will detail the history of the Fourth Amendment tracing its roots to before the Founding Era then exploring applicable …

Rethinking Objectivity: The Problem Of Pretext In The Fourth Amendment, Monu S. Bedi

Indiana Law Journal

Pretextual encounters continue to erode the legitimacy of the Supreme Court’s Fourth Amendment jurisprudence. Simply put, a police officer can act on personal bias or animus as long as the search or seizure is deemed “objectively reasonable.” Numerous scholars (e.g., Bennett Capers, Gabriel Chin, and David Harris) have critiqued this objective standard, contending it perpetuates discriminatory practices, particularly against communities of color. The late Justice Ruth Bader Ginsburg herself suggested that the Court might need to reconsider the legal precedent she helped establish. More recently, Orin Kerr has also argued that the Court’s reliance on objective determinations is inconsistent with …

Students' Rights In School, Gator Team Child Clinic

Gator Team Child Juvenile Law Clinic

An informational flyer that gives an overview of important students' rights cases in your pocket. The three cases in the flyer that are summarized are, New Jersey v. T.L.O. (1985), Tinker v. Des Moines (1969) and In Re Gault (1967).

(Mis)Judging Suspicion, Sherri Lee Keene

Georgetown Law Faculty Publications and Other Works

Twenty-five years ago, the Supreme Court decided Illinois v. Wardlow, a Fourth Amendment case that allowed the high-crime nature of a location to be considered in determinations of whether there was reasonable suspicion to support a police stop. In making these determinations, courts rarely acknowledge the role that race can play in decisions that factor in the nature of a location as context. Yet even when the race of a defendant is not mentioned, high-crime area designations can act as a proxy for race inviting racial bias into courts’ analyses. Reasonable suspicion analysis involves the interpretation of a suspect’s …

Lost And Found, Katherine M. Houlden

Nebraska Journal on Advancing Justice

No abstract provided.

Home Of The Brave, Land Of The Free: The Star-Spangled Banner's Contested History, Michael H. Hoffheimer

Nebraska Journal on Advancing Justice

No abstract provided.

Pearl's Perfect Last Will - Crushed By Infantilism Bias, Edward F. Fogarty Mr

Nebraska Journal on Advancing Justice

No abstract provided.

Dangerous Or Neglected, Amanda Landaverde

Nebraska Journal on Advancing Justice

No abstract provided.

The Call To Action, And My Reluctant Answer, Audrey R. Svane

Nebraska Journal on Advancing Justice

No abstract provided.

Legacy: Introduction To Issue 2, Nicholas L. Marti

Nebraska Journal on Advancing Justice

No abstract provided.

Volume 2, Issue 2 Masthead, Njaj Editorial Board

Nebraska Journal on Advancing Justice

No abstract provided.

The Fourth Amendment's Right To Be Secure, Thomas K. Clancy

William & Mary Bill of Rights Journal

Beginning with a 1998 article and through the editions of my treatise, I have argued that the right to be “secure” must be properly understood. The right to be secure is the powerful ability to exclude the government, and it protects against physical and technological intrusions. As will be discussed, my interpretation has had some influence among courts and scholars. Several academics have taken time to discuss it, and it has been noticed in the Supreme Court. This Essay seeks to dispel some of those characterizations and clarify the meaning of the right to be secure.

The Amendment in its …

From Phone Booths To Digital Booths: Rethinking Fourth Amendment Privacy In The Age Of Open Source Intelligence, Major Theodore H. Massey Iii

Mercer Law Review

The use of Open Source Intelligence (“OSINT”) by the U.S. intelligence community marks a paradigm shift in national security practices, leveraging vast troves of publicly available and commercially acquired data. Yet this shift raises urgent constitutional questions regarding the applicability of the Fourth Amendment’s protections in the digital age. As OSINT practices increasingly rely on sophisticated aggregation techniques and artificial intelligence tools, the line between publicly available information and constitutionally protected privacy interests begins to blur. This Article critically examines whether certain forms of OSINT collection and analysis, particularly those that aggregate digital data at scale or use predictive algorithms, …

Outbound Investment Restrictions And International Law’S Challenge, Harlan Grant Cohen

Seattle University Law Review

The Outbound Investment Rule, restricting U.S. investment in certain Chinese advanced technology sectors, has largely been portrayed as an incremental measure, a modest extension to fill loopholes in the existing investment screening regime. But while perhaps the logical next step in the securitization of the economy, the Outbound Investment Rule actually reflects a momentous shift in the relationship between governments and business, one playing out in the United States and around the world and worth attention. Unlike traditional investment screening, the Outbound Investment Rule operates like a sanctions regime, designed not to protect the U.S. economy, but to hamper the …

Resilient Dispute Resolution Systems For International Energy Conflicts, Guillermo J. Garcia Sanchez

Seattle University Law Review

Energy-related conflicts are on the rise, spanning diverse issues such as the impacts of rare mineral mining on local communities, the impacts of sanctions on energy investments due to the Russia-Ukraine war, and the impacts of expanded subsidies on the electric vehicle and solar panel industries. Increasingly, companies, communities, and governments are clashing over the challenges of pursuing disparate and sometimes competing energy policies. This Article argues that dispute resolution mechanisms in the energy investment sector must be fundamentally rethought. Traditional semi-adjudicatory models, which focus on winners and losers, fail to accommodate the complex and multifaceted nature of contemporary energy …

Restricting Data Flows Is A Sign Of Weakness, Nikolas Guggenberger

Seattle University Law Review

There has been a seismic shift in American attitudes toward the free flow of data across borders.  In less than a decade, the United States has transitioned from condemning barriers to digital trade to constructing a digital fortress of its own. It passed legislation requiring TikTok’s parent company to divest its U.S. operations or face a nationwide ban affecting 170 million U.S. users, citing national security concerns about its ties to China and the potential for data surveillance and content manipulation. Upon legal challenge by TikTok on First Amendment grounds, the Supreme Court affirmed the ban’s constitutionality. Recent federal legislation …