Legal Studies Commons^™

Justifying The Fourth Amendment, Daniel Epps

Scholarship@WashULaw

Why does the Fourth Amendment belong in the Constitution? This question is not whether society should impose some legal restraints on government searches and seizures. Rather, why should such protections reside in our national charter, superior to other forms of law and insulated from change via ordinary majoritarian political processes? Despite major disputes about the Fourth Amendment’s content, Fourth Amendment theorists rarely ask this question. Almost all agree that the Fourth Amendment’s constitutional protections are critically important—even if no one can agree exactly what those protections are.

This Article seeks a justification for the Fourth Amendment—the reason why search-and-seizure protections …

Police Diversity Theory, Trevor George Gardner

Scholarship@WashULaw

In light of both the tragic death of Tyre Nichols in Memphis at the hands of Black police officers and the mixed results of studies of Black same-race policing, this Article proposes a conceptual framework by which to better understand the utility of police diversity. The framework maps the relational possibilities among three factors: (i) the Black officer’s approach to same-race policing; (ii) the Black officer’s performance in the context of same-race policing; and (iii) the policing priorities of the Black communities the Black officer is taken to represent.

Responsive to the conceptual framework for police diversity theory, the Article …

The Ambiguity Of Probable Cause And Its Contentious Application By Police, Dave Sainte-Luce

College Honors Program

It is well documented how our country’s Criminal Justice System has a history of targeting people of color. A lot of this contention is derived from police officers’ behavior when interacting with individuals, yet officers only act upon the laws and legal policies that grant them authority, including probable cause. My thesis addresses the question, how does the fluid and ambiguous nature of probable cause leave the door open for officers to disproportionately target people of color in the United States? While focusing on vehicle, person, and property searches, I first define probable cause, building an understanding of exactly what …

The Fourth Amendment And General Law, Daniel Epps, Danielle D'Onfro

Scholarship@WashULaw

For decades, Fourth Amendment protections have turned on “reasonable expectations of privacy.” But a new era may be dawning. There is growing interest among judges and scholars in turning away from privacy toward property or positive law as the touchstone for Fourth Amendment protections. Yet many questions remain about how that approach should work, such as where judges should look for positive law and precisely what role positive law should play in Fourth Amendment analysis.

This Article answers those questions, and in so doing lays forth a new, comprehensive theory of the Fourth Amendment. We argue that courts should interpret …

Fourth Amendment Notice In The Cloud, Neil M. Richards, Jesse Lieberfeld

Scholarship@WashULaw

The widespread storage of documents through the range of Internet technologies known as “the cloud” offers tremendous convenience but also creates significant risks of exposure to third parties. In particular, law enforcement investigators seeking access to potentially relevant evidence have aggressively and extensively used the Electronic Communications Act of 1986 (“ECPA”) to execute digital searches. But a relatively obscure provision of ECPA, § 2703, allows law enforcement to search a person’s Fourth Amendment “papers” without them ever learning that a warrant has allowed the exposure of their private, sensitive, and possibly incriminating documents. What is more, federal and state law …

The New Bailments, Danielle D'Onfro

Scholarship@WashULaw

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

The Evolution Of Substantive Due Process Throughout Time, Vitoria Olivo Factor

Honors Undergraduate Theses

Substantive due process has been of great importance to the decision of many Supreme Court cases since its beginning. Since its inception in Lochner v. New York,[1] the Supreme Court has used the theory of substantive due process in order to grant numerous rights to individuals and this theory has been interpreted differently by each Justice that has crossed its path.

This thesis will explain how recent changes in the composition of the United States Supreme Court make it likely that judicial opinions involving substantive due process will be decided differently. The United States Supreme Court’s future substantive …

Police Violence And The African-American Procedural Habitus, Trevor George Gardner

Scholarship@WashULaw

How should an African American respond to a race-based police stop? What approach, disposition, or tactic will minimize his risk within the context of the police stop of being subject to police violence? This Essay advances a conversation among criminal procedural theorists about citizen agency within the field of police-administered criminal procedure, highlighting “The Talk” that parents have with their African American children regarding how to respond to police seizure. It argues that the most prominent version of The Talk—the one in which parents call for absolute deference to police authority in the event of a police stop—may be as …

Protecting Online Privacy In The Digital Age: Carpenter V. United States And The Fourth Amendment's Third-Party Doctrine, Cristina Del Rosso

Honors Undergraduate Theses

The intent of this thesis is to examine the future of the third-party doctrine with the proliferation of technology and the online data we are surrounded with daily, specifically after the United States Supreme Court's decision in Carpenter v. United States. In order to better understand the Supreme Court's reasoning in that case, this thesis will review the history of the third-party doctrine and its roots in United States v. Miller and Smith v. Maryland. A review of Fourth Amendment history and jurisprudence is also crucial to this thesis, as it is imperative that individuals do not forfeit …

Lacking Regulated Policy For Dna Evidence, Maia Lister

Themis: Research Journal of Justice Studies and Forensic Science

Despite its strong presence in criminal justice, DNA analysis is still a minimally regulated area. This minimal regulation devalues DNA evidence through the inconsistencies in these areas. The analysis methods of low template DNA lack a uniform method resulting in varying levels of reliability. Utilizing familial searches to assist in criminal investigations can potentially violate citizen rights. Such violations can also be found in the collection of DNA samples before an arrestee is tried or convicted. There are, however, regulations that could be applied universally to combat the problems that were discussed.

An Examination Of The Evolution Of Racially Biased Pretextual Investigatory Stops And Their Legitimacy In Policing, Brett A. Lacey

Theses and Dissertations

This thesis examines the use of tactics originally purposed as a component of the Drug Enforcement Agency’s Operation Pipeline and their evolution since their creation in the 1980’s. The paper provides a history of investigatory policing stops regarding the argument of Epp et al. (2014) that primarily relied on Police Chief magazine and Remsberg’s Street Survival. Epp argues that the methods used in investigatory stops are an invasion of privacy, use racial profiling, and have proliferated from a tactic used in the war on drugs to combat drug trafficking to a routine day-to-day policing tactic. Through the use of a …

The Third-Party Doctrine And The Future Of The Cloud, Neil M. Richards

Scholarship@WashULaw

When the government seeks electronic documents held in the cloud, what legal standard should apply? This simple question raises fundamental questions about the future of our civil liberties in the digital world. In a series of cases, government lawyers have argued that information shared with digital intermediaries—including emails and cloud-stored documents—can be seized without a warrant. Their argument rests upon a controversial Fourth Amendment principle known as the “Third-Party Doctrine,” which maintains that information shared even with trusted “third parties” loses a reasonable expectation of privacy under the Fourth Amendment, and with it, the protection of the warrant requirement. Criminal …

Brief For Professor Albert E. Scherr As Amicus Curiae In Support Of Petitioner, Albert E. Scherr

Law Faculty Scholarship

INTRODUCTION AND SUMMARY OF ARGUMENT Professor Scherr agrees with petitioner that review is warranted because the Maryland Court of Appeals decision is erroneous. The Fourth Amendment does not sanction police harvesting of DNA without probable cause and a warrant and without the subject’s knowledge or consent, to be used however the authorities deem appropriate and without restriction. The Maryland Court of Appeals’ decision is contrary to the Supreme Court’s jurisprudence as articulated in the Riley v. California – Maryland v. King – United States v. Jones trilogy. This case fits squarely in the center of the triangle formed by that …

The Language Of Consent In Police Encounters, Janice Nadler, J.D. Trout

Faculty Working Papers

In this chapter, we examine the nature of conversations in citizen-police encounters in which police seek to conduct a search based on the citizen's consent. We argue that when police officers ask a person if they can search, citizens often feel enormous pressure to say yes. But judges routinely ignore these pressures, choosing instead to spotlight the politeness and restraint of the officers' language and demeanor. Courts often analyze the language of police encounters as if the conversation has an obvious, context-free meaning. The pragmatic features of language influence behavior, but courts routinely ignore or deny this fact. Instead, current …

06-15-1983 Memorandum To The Conference, William H. Rehnquist

Illinois v. Gates 462 U.S. 213 (1983)

Justice Rehnquist discusses Colorado v. Quintero, No. 82-1711, with respects to Illinois v. Gates, No. 81-430.

06-15-1983 Memorandum To The Conference, William H. Rehnquist

Illinois v. Gates 462 U.S. 213 (1983)

Rehnquist refers to No. 82-963 - Massachusetts v. Sheppard in regard to the good faith reliance on the search warrant.

06-02-1983 Correspondence From Blackmun To Renhquist, Harry A. Blackmun

Illinois v. Gates 462 U.S. 213 (1983)

Memo from Justice Blackmun to Justice Rehnquist to join him.

05-31-1983 Correspondence From Rehnquist To Blackmun, William H. Rehnquist

Illinois v. Gates 462 U.S. 213 (1983)

Correspondence from Rehnquist to Blackmun accepting changes.

05-25-1983 Correspondence From Burger To Rehnquist, Warren E. Burger

Illinois v. Gates 462 U.S. 213 (1983)

Correspondence from Chief Justice Burger to Rehnquist indicating that he joins him.

05-25-1983 Clerk Memo, Alan S. Madans

Illinois v. Gates 462 U.S. 213 (1983)

Mr. Justice:

The CJ has now joined WHR's draft. You are the only one out in this case, and your vote will determine whether WHR gets a Court for his opinion.

Opinion Of The Court, William H. Rehnquist

Illinois v. Gates 462 U.S. 213 (1983)

Justice Rehnquist delivered the opinion of the court on Illinois v. Gates - 3rd draft.

05-11-1983 Correspondence From Marshall To Brennan, Thurgood Marshall

Illinois v. Gates 462 U.S. 213 (1983)

Correspondence from Marshall to Brennan asking him to join him in his opinion.

Justice Brennan, Dissenting, William J. Brennan

Illinois v. Gates 462 U.S. 213 (1983)

Justice Brennan's draft opinion on Illinois v. Gates.

05-08-1983 Clerk Memo, Alan S. Madans

Illinois v. Gates 462 U.S. 213 (1983)

Law clerk memo outlining the current positions of the US Supreme Court Justices' on Ill. v. Gates, and recommending joining Chief Rehnquist's opinion pending certain corrections.

Justice White, Concurring, Byron R. White

Illinois v. Gates 462 U.S. 213 (1983)

Justice White's concurring opinion on Illinois v. Gates.

05-31-1983 Correspondence From Blackmun To Rehnquist, Harry A. Blackmun

Illinois v. Gates 462 U.S. 213 (1983)

Corrections suggested to Rehnquist by Blackmun regarding Illinois v. Gates.

04-28-1983 Correspondence From Powell To Rehnquist, Lewis F. Powell

Illinois v. Gates 462 U.S. 213 (1983)

Correspondence from Powell to Rehnquist requesting him to join him in his opinion.

04-25-1983 Correspondence From White To Rehnquist, Byron R. White

Illinois v. Gates 462 U.S. 213 (1983)

Correspondence from White to Rehnquist, saying he will write separately.

04-21-1983 Correspondence From Brennan To Stevens, William J. Brennan

Illinois v. Gates 462 U.S. 213 (1983)

Correspondence from Brennan to Stevens, asking him to join him in Steven's dissent.

04-21-1983 Correspondence From Brennan To Rehnquist, William J. Brennan

Illinois v. Gates 462 U.S. 213 (1983)

Correspondence from Brennan to Rehnquist saying that he is writing his own dissent.