Fourth Amendment Commons^™

Katz, Carpenter, And Classical Conservatism, Nicholas A. Kahn-Fogel

Cornell Journal of Law and Public Policy

In 1967, in Katz v. United States, the Supreme Court adopted a privacy-based framework for determining whether government conduct constitutes a Fourth Amendment search. Under that standard, a search occurs when the government infringes on an expectation of privacy that "society is prepared to recognize as 'reasonable.'" Although the Court qualified its commitment to Katz in 2012 by asserting that an older, property-based approach survived Katz and remains the first-line test for identifying Fourth Amendment searches, most of the Court today is committed to preserving a role for the Katz standard. Yet, most of the justices have also recognized problems …

Standing To Challenge Familial Searches Of Commercial Dna Databases, Hillary L. Kody

William & Mary Law Review

In April 2018, police officers arrested Joseph James DeAngelo. DeAngelo, the officers claimed, was the “Golden State Killer,” a man who committed dozens of murders and over fifty sexual assaults in California in the 1970s and 1980s. The Golden State Killer had long eluded police, even though his DNA profile linked him to dozens of violent crimes. While law enforcement officials from several jurisdictions in California had collected his DNA from crime scenes, the Golden State Killer’s crimes predated modern DNA analysis. Police found little use for the profile without a suspect’s profile to compare to it.

Nearly forty years …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

"23 And Plea": Limiting Police Use Of Genealogy Sites After Carpenter V. United States, Antony Barone Kolenc

West Virginia Law Review

No abstract provided.

Cell Phones And The Border Search Exception: Circuits Split Over The Line Between Sovereignty And Privacy, Gina R. Bohannon

Maryland Law Review

No abstract provided.

A New Third-Party Doctrine: The Telephone Metadata Program And Carpenter V. United States, Mary-Kathryn Takeuchi

Notre Dame Law Review

This Note will answer the question of whether bulk metadata collection is still defensible under the third-party doctrine. It ultimately concludes that Chief Justice Roberts incorrectly asserted that Carpenter v. United States will not impact the application of the third-party doctrine to collection techniques involving national security, and that the warrantless collection of bulk metadata under the Foreign Intelligence Surveillance Act is no longer defensible by the third-party doctrine. In Section I.A, this Note discusses traditional Fourth Amendment jurisprudence in Katz v. United States and the establishment of the third-party doctrine as a bright-line rule in United States v. Miller …

Automated License Plate Readers: The Difficult Balance Of Solving Crime And Protecting Individual Privacy, Lauren Fash

Maryland Law Review Online

No abstract provided.

Text Messages Are Property: Why You Don’T Own Your Text Messages, But It’D Be A Lot Cooler If You Did, Spence M. Howden

Washington and Lee Law Review

This Note proceeds as follows: Part II offers a brief overview of what text messages are and what they are not. Part III covers the history of intangible personal property law and reviews the evolution of “cybertrespass” claims. Part IV explores the judiciary and the Fourth Amendment’s failure to protect text messages. Finally, Part V evaluates whether text messages constitute property and the practical implications of this finding.

Assessment Of Public Sector Service Quality: Gauging Experiences And Perceptions Of Racial Profiling, Aaron C. Rollins Jr.

Journal of Public Management & Social Policy

The absence of a culturally competent public sector workforce has led to increased public scrutiny and heightened levels of distrust. In the field of public safety, this is particularly important due to the sensitive nature of the task performed and the historically strained relationships that exist between racial minorities and law enforcement. Using national survey data to gauge the prevalence of citizen’s experiences and perceptions of racial profiling, this research reveals significant discrepancies amongst minorities and their white counterparts. In response, this research encourages public officials and agencies to eliminate inconsistencies in their interactions with the citizenry as a whole. …

Location Tracking And Digital Data: Can Carpenter Build A Stable Privacy Doctrine?, Evan H. Caminker

Articles

In Carpenter v United States, the Supreme Court struggled to modernize twentieth-century search and seizure precedents for the “Cyber Age.” Twice previously this decade the Court had tweaked Fourth Amendment doctrine to keep pace with advancing technology, requiring a search warrant before the government can either peruse the contents of a cell phone seized incident to arrest or use a GPS tracker to follow a car’s long-term movements.

Cell Phones Are Orwell's Telescreen: The Need For Fourth Amendment Protection In Real-Time Cell Phone Location Information, Matthew Devoy Jones

Cleveland State Law Review

Courts are divided as to whether law enforcement can collect cell phone location information in real-time without a warrant under the Fourth Amendment. This Article argues that Carpenter v. United States requires a warrant under the Fourth Amendment prior to law enforcement’s collection of real-time cell phone location information. Courts that have required a warrant prior to the government’s collection of real-time cell phone location information have considered the length of surveillance. This should not be a factor. The growing prevalence and usage of cell phones and cell phone technology, the original intent of the Fourth Amendment, and United States …

Mission Creep And Wiretap Act 'Super Warrants': A Cautionary Tale, Jennifer S. Granick, Patrick Toomey, Naomi Gilens, Daniel Yadron Jr.

Loyola of Los Angeles Law Review

Congress enacted the Wiretap Act in 1968 in an effort to combat organized crime while safeguarding the privacy of innocent Americans. However, the Act instead served to legitimize wiretapping, and its privacy protections have eroded over time. As a result, there has been a significant increase in wiretapping in the decades since the Act’s passage. As technology evolves, the Wiretap Act does less to protect Americans’ private communications from government interception. Nevertheless, policy makers see the Wiretap Act, with its “super-warrant” procedures, as the gold standard for statutory privacy protection. To the contrary, when considering how to regulate new and …

Guilt By Genetic Association: The Fourth Amendment And The Search Of Private Genetic Databases By Law Enforcement, Claire Abrahamson

Fordham Law Review

Over the course of 2018, a number of suspects in unsolved crimes have been identified through the use of GEDMatch, a public online genetic database. Law enforcement’s use of GEDMatch to identify suspects in cold cases likely does not constitute a search under the Fourth Amendment because the genetic information hosted on the website is publicly available. Transparency reports from direct-to-consumer (DTC) genetic testing providers like 23andMe and Ancestry suggest that federal and state officials may now be requesting access to private genetic databases as well. Whether law enforcement’s use of private DTC genetic databases to search for familial relatives …

Airbnb In New York City: Whose Privacy Rights Are Threatened By A Government Data Grab?, Tess Hofmann

Fordham Law Review

New York City regulators have vigorously resisted the rise of Airbnb as an alternative to traditional hotels, characterizing “home sharing” as a trend that is sucking up permanent housing in a city already facing an affordability crisis. However, laws banning short-term rentals have done little to discourage this practice, as Airbnb’s policy of keeping user information private makes it possible for illegal operators to evade law enforcement. Frustrated by this power imbalance, the New York City Council passed Local Law 146, which requires Airbnb to provide city officials with access to the names and information of its home sharing hosts …

Alexa, Amazon Assistant Or Government Informant?, Julia R. Shackleton Esq.

University of Miami Business Law Review

Alexa, are you listening to me? Technology has become an integral part of one’s everyday life with voice-controlled devices pervading our most intimate interactions and spaces within the home. The answers to our questions are now at our fingertips with the simple roll of the tongue “Alexa,” your very own personal intelligence assistant. This futuristic household tool can perform tasks that range from answering simple voice commands to ordering any online shopping. However, the advent of voice technology presents a myriad of problems. Concerns arise as these new devices live in the privacy of our homes while quietly listening for …

Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Josh Gupta-Kagan

Faculty Publications

The Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue ruled in the 1990s and 2000s that T.L.O. applied to SRO-involved …

Addressing Racial Bias In The Jury System: Another Failed Attempt?, Alisa Micu

Georgia State University Law Review

This Note explores the majority opinion and the dissents in Pena- Rodriguez regarding whether the Supreme Court has adequately provided guidance for lower courts to follow the ruling, which now allows exceptions for evidence of racial bias to Rule 606(b). Part I discusses the history of the no-impeachment rule, its foundation in the Sixth Amendment, and its constitutional requirements. Further, Part I discusses the different approaches that courts have taken in adopting Rule 606(b) and what problems courts have identified in its application. Part II analyzes whether the Supreme Court, as a practical matter, has provided a workable procedural scheme …

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William Simon

Indiana Law Journal

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial …

Devotion ̶T̶O̶ And The Rule Of Law: Acknowledging The Role Of Religious Values In Judicial Decision-Making, Priya Purohit

Indiana Law Journal

This Comment advocates for the acknowledgment of religious values in judicial decision-making in three parts. Part I explores the role of religion in American politics, and more specifically, the role of religion in federal judicial confirmation hearings and state-level judicial elections. Membership to an institutionalized religion often performs an essential gatekeeping function when it comes to assessing the background or personal values of a candidate for political or judicial office. The initially positive role of religion in judicial selection processes suggests that the practice of refusing to acknowledge the role that religion likely already plays in judicial decision-making is wholly …

The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports

University of Michigan Journal of Law Reform

For decades, the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment’s warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still, others use undefined and unhelpful terms such as “reasonable to believe” in describing how exigent the situation must be to permit the police to proceed without a warrant. Not surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.

To resolve this conflict and provide guidance to law enforcement …

Tort Justice Reform, Paul David Stern

University of Michigan Journal of Law Reform

This Article calls for a comprehensive reform of public tort law with respect to law enforcement conduct. It articulates an effective and equitable remedial regime that reconciles the aspirational goals of public tort law with the practical realities of devising payment and disciplinary procedures that are responsive to tort settlements and judgments. This proposed statutory scheme seeks to deter law enforcement misconduct without disincentivizing prudent officers from performing their duties or overburdening them with extensive litigation. Rather than lamenting the dissolution of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics or the insurmountability of qualified immunity, reform …

Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, …

All Watched Over By Machines Of Loving Grace: Border Searches Of Electronic Devices In The Digital Age, Sean O'Grady

Fordham Law Review

The border search exception to the Fourth Amendment has historically given the U.S. government the right to conduct suspicionless searches of the belongings of any individual crossing the border. The federal government relies on the border search exception to search and detain travelers’ electronic devices at the border without a warrant or individualized suspicion. The government’s justification for suspicionless searches of electronic devices under the traditional border search exception for travelers’ property has recently been called into question in a series of federal court decisions. In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal …

Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Josh Gupta-Kagan

Fordham Law Review

The U.S. Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue in the 1990s and 2000s found that T.L.O. applied to …

Heien V. North Carolina And Significant Interpretive Court Cases: An Empirical Examination Of Police Officers’ Perceptions And Knowledge, Michael De Leo

Master of Science in Criminal Justice Theses & (Pre-2016) Policy Research Projects

This empirical study examines legal aspects of policing in relation to the recent, landmark United States Supreme Court case of Heien v. North Carolina. In Heien, the Court found that objectively reasonable mistakes of law by police can support traffic stops. By doing so, it extends the permissible margin of error for stops by law enforcement officers. Due to the potential, far-reaching implications of the Heien decision, including implications for law enforcement and for the Fourth Amendment privacy protections of individuals, it is important to better understand how the lower courts have interpreted and applied Heien. Therefore, …

Nowhere To Run, Nowhere To Hide.* Applying The Fourth Amendment To Connected Cars In The Internet-Of-Things Era, Gregory C. Brown, Jr.

Journal of Civil Rights and Economic Development

(Excerpt)

Part I of this Note will briefly discuss the key components of a Connected Car, identify who collects the data from the Car, and examine the various uses for the data. Part I also explores whether Car owners consent to the collection of their Car’s data. Part II-A will trace the historical development of the automobile exception to the Fourth Amendment, which generally permits law-enforcement officers to conduct a warrantless search of a vehicle. Part II-B will discuss how the Supreme Court has applied the Fourth Amendment to pre-Internet technologies. Part II-C will discuss two recent Fourth Amendment Supreme …

On The Fringes Of The Fourth Amendment: Changing Reasonableness At The Border, Isabelle Hutchinson

Student Scholarship

The protection of the U.S.-Mexico border has become a priority for politicians and government officials alike. However, the protection of people��s rights near the border has been largely ignored. Due to the Fourth Amendment��s border search exception, customs officials and border patrol agents may use lower standards for suspicion in conducting searches and seizures of people in the border region. In determining whether a search or seizure is reasonable, the Fourth Amendment requires balancing of the degree to which the government intrudes on a person��s privacy against the government��s interest in conducting the search. This Article analyzes the changes in …

Custodial Compulsion, Kyron J. Huigens

Articles

In cases that fall under Miranda v Arizona, police interrogators not only give a suspect reasons to confess; they also suggest that the suspect ought to confess. In doing so, interrogators effectively invoke the Wigmorean duty of a citizen to produce any evidence he has in his possession, including his own confession. That is, they invoke the duty against which the Self Incrimination Clause stands, so that the clause is applicable to police interrogations, and is violated where it is not waived. This means that “a Miranda violation” is a violation of the Self Incrimination Clause in the field, just …

The Public Information Fallacy, Woodrow Hartzog

Faculty Scholarship

The concept of privacy in “public” information or acts is a perennial topic for debate. It has given privacy law fits. People struggle to reconcile the notion of protecting information that has been made public with traditional accounts of privacy. As a result, successfully labeling information as public often functions as a permission slip for surveillance and personal data practices. It has also given birth to a significant and persistent misconception — that public information is an established and objective concept.

In this article, I argue that the “no privacy in public” justification is misguided because nobody knows what “public” …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.