Fourth Amendment Commons^™

Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu

Faculty Publications

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies. …

Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu

Washington Law Review

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies. …

The Pro Bono Collaborative Project Spotlight: Rwu Law Street Law: Teaching Teens About The Law And Inspiring Future Lawyers 11-16-2017, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

The Next Step In Civil Asset Forfeiture Reform: Passing The Civil Asset Forfeiture Reform Act Of 2014, Daniel Reed

Catholic University Law Review

Civil asset forfeiture is an operation of legal fiction that enables the government to seize property without an underlying conviction of the property owner. Federal authorities bring thousands of civil asset forfeiture cases annually, often against the property of owners who have not been charged with a crime. Such cases can result in unjust outcomes and denials of due process to property owners. To address this controversy, Representative Tim Walberg proposed several reforms to federal civil asset forfeiture laws known as the Civil Asset Forfeiture Reform Act of 2014 (CAFRA 2014).

After discussing the history of civil asset forfeiture, this …

The Fallacy Of A Colorblind Consent Search Doctrine, Beau C. Tremitiere

Northwestern University Law Review

Most searches conducted by police officers are “consensual” and thus beyond the reach of the Fourth Amendment. However, such searches violate the Fourth Amendment when, under the totality of circumstances, consent appears to be a product of coercion—that is, when the consent was involuntary. In 1980, in Mendenhall v. United States, the Supreme Court identified race as a relevant factor courts should consider but failed to explain precisely why race was relevant. After decades of mistreatment and state-sanctioned violence, distrust of law enforcement was rampant in communities of color, and the Mendenhall Court correctly intuited (but failed to describe) the …

Does The End Justify The Means? The Clumsy And Circuitous Logic Of Blood Test Admissibility In Criminal Prosecutions In State V. Cormier, Kyle T. Macdonald

Maine Law Review

In State v. Cormier, the Maine Supreme Judicial Court, sitting as the Law Court, was asked to determine whether a Maine statute requiring law enforcement officers to test the blood of all drivers for intoxicants following a fatal motor vehicle collision violates the Fourth Amendment of the United States Constitution when the operation of the statute allows for the admission of those blood test results in a future criminal trial of the driver. In determining that the procedures of title 29-A, section 2522 of the Maine Revised Statutes are not violative of the Fourth Amendment, the Law Court effectively confirmed …

The Supreme Court's Long And Perhaps Unnecessary Struggle To Find A Standard Of Culpability To Regulate The Federal Exclusionary Remedy For Fourth/Fourteenth Amendment Violations, Melvyn H. Zarr

Maine Law Review

On January 14, 2009, the United States Supreme Court decided Herring v. United States. In Herring, the defendant moved to suppress evidence that he alleged was seized as a result of an arrest that violated the Fourth and Fourteenth Amendments to the U.S. Constitution. The Supreme Court approved the decision below to deny suppression of the evidence. The decision set off a flurry of speculation that the Fourth Amendment exclusionary rule would not see its 100th birthday in 2014. A headline in the New York Times of January 31 declared: “Supreme Court Edging Closer to Repeal of Evidence Ruling.” Another …

Reflections On Forty Years Of Private Practice And Sustained Pro Bono Advocacy, Stephen H. Oleskey

Maine Law Review

I am going to address two topics. The first is the one Judge Coffin asked me to address in October 2009, when I was invited to give the 2010 Coffin Lecture: how to combine the private practice of law with an active pro bono practice. The second topic is the one Dean Peter Pitegoff and I agreed to add: a brief discussion of legal developments in national security law since 9/11. My pro bono involvement in Guantanamo Habeas litigation began in 2004 and led directly to my interest in national security law and to my recognition of how difficult it …

The Prolonged Arm Of The Law: Fourth Amendment Principles, The Maynard Decision, And The Need For A New Warrant For Electronic Tracking, R. Reeve Wood Iii

Maine Law Review

This article examines the decision in United States v. Maynard as well as the simultaneous emergence of a vocal set of magistrate judges advocating for Fourth Amendment protection for cell phone location information. It argues that, even if the Maynard rationale is widely adopted and the use of tracking devices is found to be a search, the Fourth Amendment principles of specificity and limited discretion on the part of government officers mean that the warrant frameworks currently in use will not provide adequate protection from the threat of government officers obtaining information for which they have not demonstrated a need. …

Police In America: Ensuring Accountability And Mitigating Racial Bias Feat. Paul Butler

Northwestern Journal of Law & Social Policy

No abstract provided.

Litigating Police Misconduct: Does The Litigation Process Matter? Does It Work?

Northwestern Journal of Law & Social Policy

No abstract provided.

Going Postal: Analyzing The Abuse Of Mail Covers Under The Fourth Amendment, Julie L. Rooney

Vanderbilt Law Review

Since at least the late 1800s, the United States government has regularly tracked the mail of many of its citizens. In 2014 alone, for example, the government recorded all data on the outside of the mail parcels of over 50,000 individuals via a surveillance initiative known as the mail covers program. In the current age of mass surveillance, this program-like all surveillance initiatives-has grown exponentially. Unbeknownst to most citizens, the government now photographs and records the exterior of each of the roughly 160 billion mail parcels delivered by the USPS every year. Still, despite its ability to allow governmental authorities …

Fbi's Carnivore: Under The Fourth Amendment And The Usa Patriot Act, Scott Griner

Oklahoma Journal of Law and Technology

No abstract provided.

Emailer Beware: The Fourth Amendment And Electronic Mail, E. Parker Lowe

Oklahoma Journal of Law and Technology

No abstract provided.

Enforcing The Fourth Amendment: The Original Understanding, Bradford Wilson

The Catholic Lawyer

No abstract provided.

Lichtenberger And The Three Bears: Getting The Private Search Exception And Modern Digital Storage "Just Right", Samuel Crecelius

Texas A&M Law Review

Finding a happy medium is hard. Often, it is a challenge to find a workable balance between two unworkable extremes. Known as the “Goldilocks Principle,” this phenomenon has been observed in fields as diverse as developmental psychology and astrobiology. As Goldilocks found in the Three Bears’ house, “just right” may not come on the first attempt. We may have to explore the extremes of the spectrum—“too hot” and “too cold”—before we can settle on “just right. Goldilocks also discovered that this process is all the more difficult in a new environment—like the Three Bears’ house. Goldilocks persevered, however, until she …

The Quality Of Life: From Roe To Quinlan And Beyond, Joseph Cincotta

The Catholic Lawyer

No abstract provided.

Carpenter V. United States: Brief Of Amici Curiae Empirical Fourth Amendment Scholars In Support Of Petitioner, J. J. Prescott

Appellate Briefs

Amici are professors (identified in the Appendix) whose research and teaching include the Fourth Amendment, empirical analysis of the criminal justice system, and, specifically, empirical analyses of the public's "reasonable expectations." They file this brief to urge this Court to reverse the Sixth Circuit, recognize that the Fourth Amendment governs the inquiry here, and find that authorities violate the Fourth Amendment when law enforcement collect cell site location data without first obtaining a warrant.

The Court has recognized that public expectations of privacy are relevant to the Fourth Amendment. A growing body of social science research shows that a majority …

Brief Of Scholars Of The History And Original Meaning Of The Fourth Amendment As Amici Curiae In Support Of Petitioner, Margaret Hu

Briefs

No abstract provided.

Digital Effects: The Fourth Amendment And Computer Searches Warrants, Ash Moore

Oklahoma Journal of Law and Technology

No abstract provided.

The Outer Limits: Imsi-Catchers, Technology, And The Future Of The Fourth Amendment, Ryan C. Chapman

Pepperdine Law Review

Recent advances in technology are posing new challenges for a legal system based on decades-old precedent. Nowhere is this more apparent than in law enforcement’s warrantless use of IMSI Catchers. These devices mimic a cell phone tower, and when the device is activated, cell phones will naturally connect to them. Law enforcement officers can use those intercepted cell phone signals to track a suspect’s movements in real time with startling accuracy. Scholarly commentary on these devices has largely concluded that their use requires a warrant. This Comment engages in a close examination of Fourth Amendment precedent and argues that, as …

Federal Habeas Review Of State Court Convictions: Incoherent Law But An Essential Right, Lynn Adelman

Maine Law Review

I thank the editors of the Maine Law Review for the opportunity to participate in a discussion about the present state of post-conviction review of criminal convictions. This discussion is important and timely both because the quality of the procedures by which state prisoners can obtain post-conviction review varies greatly from state to state and because state prisoners who seek federal court review of their constitutional claims by petitioning for a writ of habeas corpus face many obstacles. As a federal district judge, my experience is primarily with the later problem. Thus, in this article, I will offer a few …

Rule 41 Amendments Provide For A Drastic Expansion Of Government Authority To Conduct Computer Searches And Should Not Have Been Adopted By The Supreme Court, Markus Rauschecker

Maryland Law Review

No abstract provided.

Nearsighted And Colorblind: The Perspective Problems Of Police Deadly Force Cases, Jelani Jefferson Exum

Cleveland State Law Review

In dealing with the recently publicized instances of police officers’ use of deadly force, some reform efforts have been focused on the entities that are central to the successful prosecutions of police—the prosecutor and the grand jury. Some have suggested special, independent prosecutors for these cases so that the process of deciding whether to seek charges against police officers remains untainted by the necessary cooperative relationship between the police department and the prosecutor’s office. Others have urged more transparency in the grand jury process so that the public can scrutinize a prosecutor’s efforts in presenting evidence for an indictment. Still …

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Byrd V. U.S. (U.S. June 12, 2017) (No. 16- 1371)., Janet Moore

Faculty Articles and Other Publications

More than two centuries after it was ratified, the Fourth Amendment continues to protect the “right of the people to be secure” from “unreasonable searches.” U.S. Const. amend. IV. Modern technological advances and social developments do not render our rights “any less worthy of the protection for which the Founders fought.” Riley v. California, 134 S. Ct. 2473, 2494–95 (2014). This Court plays an essential role in ensuring that the Fourth Amendment retains its vitality as an indispensable safeguard of liberty, even as Americans dramatically change the ways they organize their everyday affairs. This case calls for the Court to …

The Legacy Of Slavery And The Continued Marginalization Of Communities Of Color Within The Legal System, Julia N. Alvarez

Dissertations, Theses, and Capstone Projects

The aim of this thesis paper is to demonstrate how the history of slavery in the United States continues to marginalize communities of color. The history of slavery in America was the result of various factors. Some of these factors included but were not limited to; economic, legal, and social. Slavery provided a reliable and self-reproducing workforce. The laws enacted during slavery ensured the continuation of the social order of the time. This social order was based on the generalized understanding that blacks were born into servitude. Those born into slavery were not given the same legal or economic status …

Stories That Swim Upstream: Uncovering The Influence Of Stereotypes And Stock Stories In Fourth Amendment Reasonable Suspicion Analysis, Sherri Lee Keene

Maryland Law Review

No abstract provided.

Searching For Federal Judicial Power: Article Iii And The Foreign Intelligence Surveillance Court, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Find My Criminals: Fourth Amendment Implications Of The Universal Cell Phone "App" That Every Cell Phone User Has But No Criminal Wants, Christopher Joseph

Barry Law Review

No abstract provided.

Kentucky V. King: A New Approach To Consent-Based Police Encounters?, Jamesa J. Drake

Maine Law Review

The exigent circumstances exception to the warrant requirement permits the police to enter a private residence, without prior judicial approval, whenever the police have an objectively reasonable basis for believing that the destruction of evidence is imminent or underway. The United States Supreme Court’s most recent pronouncement in the exigent circumstances realm—Kentucky v. King—is not a case about exigent circumstances per se. Instead, King concerns the “policecreated exigency” doctrine, a concept that the vast majority of federal and state courts already recognize.This doctrine adds a crucial caveat to the exigent circumstances rule, but it is not new. It provides that …