Fourth Amendment Commons^™

Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti

Maryland Law Review

No abstract provided.

In Celebration Of Dissents (And Lengthy Textbooks): How Digital Became Different For The Fourth Amendment And Why It Is Time For A Real Warrant Default, Stephen E. Henderson

Faculty Articles

The last decade has brought tremendous change to the Fourth Amendment, finally resulting in a ‘digital is different’ norm. We stand at an inflection point between a monolithic, analog past and a murky future of yet-unarticulated constitutional digital policing rules. It is a good time, then, to reflect upon how we came to be here and where we ought to go. This Essay first looks back to a monumental, majestic dissent: that of Justice Louis Brandeis in the 1928 decision of Olmstead v. United States. Every American, and especially every law student, ought to know that opinion, and judges …

State V. Reisner, 253 A.3d 1273 (R.I. 2021), David Tice

Roger Williams University Law Review

No abstract provided.

Fourth Amendment Privacy In Public: A Fundamental Theory With Application To Location Tracking, Jordan Wallace-Wolf

Law Faculty Scholarship

When we walk out our front door, we are in public and other people may look at us. But intuitively, we don’t open ourselves up to unlimited scrutiny just by going outside. We retain some privacy, even in public. What is the source of this residual public-privacy, and how should the law recognize it without degrading the open character of public space?

The answer given by commentators, and most recently by the Supreme Court in Carpenter v. U.S., comes in the form of two related claims. The first is the chilling theory of the Fourth Amendment. According to this idea, …

Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti

Articles by Maurer Faculty

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.

Such an approach presupposes that property law is not itself circular. If …

Facebook, Crime Prevention, And The Scope Of The Private Search Post-Carpenter, Connor M. Correll

Georgia Law Review

The Fourth Amendment of the U.S. Constitution protects people “against unreasonable searches and seizures.” The private search doctrine provides a notable exception to the Fourth Amendment, providing that the government may reconstruct a search previously performed by a private party without first obtaining a warrant. The U.S. Supreme Court developed the private search doctrine prior to the advent of the internet; however, modern technology has changed the way that individuals live. What was once done entirely in private is now done alongside ever-present third parties, such as cell phones and virtual assistants.

Facebook and other social media sites complicate Fourth …

Smart Meters As A Catalyst For Privacy Law, Matthew Tokson

Utah Law Faculty Scholarship

Smart utility meters raise several puzzling legal questions—and answering them can help point the way toward the future of Fourth Amendment and civil privacy law. This forum essay addresses two such issues: use restrictions on collected data, and voluntary data disclosure.

First, more than any other current technology, smart meters compel the development of use restrictions on collected data. The benefits of smart meters are potentially enormous, such that categorically prohibiting public utilities from collecting smart meter data is likely beyond the pale. Yet allowing law enforcement agents to obtain detailed or intimate data about the home without a warrant …

Monasky’S Totality Of Circumstances Is Vague – The Child’S Perspective Should Be The Main Test, Sabrina Salvi

Touro Law Review

After decades of confusion, the Supreme Court ruled on child custody in an international setting in Monasky v. Taglieri, by attempting to establish the definition of a child’s “habitual residence.” The Court held that a child’s “residence in a particular country can be deemed ‘habitual, however, only when her residence there is more than transitory.’” Further, the Court stated that, ‘“[h]abitual’ implies customary, usual, of the nature of a habit.”’ However, the Supreme Court’s ruling remains unclear. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“HCCAICA” or “The Hague Convention”), which is adopted in ninety-eight …

A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher

Faculty Articles

Today, information is shared almost constantly. People share their DNA to track their ancestry or for individualized health information; they instruct Alexa to purchase products or provide directions; and, now more than ever, they use videoconferencing technology in their homes. According to the third-party doctrine, the government can access all such information without a warrant or without infringing on Fourth Amendment privacy protections. This exposure of vast amounts of highly personal data to government intrusion is permissible because the Supreme Court has interpreted the third-party doctrine as a per se rule. However, that interpretation rests on an improper understanding of …

The Corrosive Effect Of Inevitable Discovery On The Fourth Amendment, Tonja Jacobi, Elliot Louthen

Faculty Articles

The Supreme Court has only once, almost four decades ago, addressed the doctrine of inevitable discovery, when it established the exception in Nix v. Williams. Inevitable discovery encapsulates the notion of no harm, no foul—if law enforcement would have discovered unlawfully obtained evidence regardless of a constitutional violation, then the resulting evidence need not be excluded. Nix laid out two simple dictates: the eponymous requirement of inevitability and a corresponding evidentiary burden requiring the prosecution to prove by a preponderance of the evidence that law enforcement inevitably would have discovered the evidence without the violation. Such analysis requires counterfactual …

Girls, Assaulted, India Thusi

Articles by Maurer Faculty

Girls who are incarcerated share a common trait: They have often experienced multiple forms of sexual assault, at the hands of those close to them and at the hands of the state. The #MeToo movement has exposed how powerful people and institutions have facilitated pervasive sexual violence. However, there has been little attention paid to the ways that incarceration perpetuates sexual exploitation. This Article focuses on incarcerated girls and argues that the state routinely sexually assaults girls by mandating invasive, nonconsensual searches. Unwanted touching and display of private parts are common features of life before and after incarceration—from the sexual …

Something Rots In Law Enforcement And It's The Search Warrant: The Breonna Taylor Case, Blanche Bong Cook

Faculty Publications & Other Works

When police rammed the door of Breonna Taylor’s home and shot her six times in a hail of thirty-two bullets, they lacked legal justification for being there. The affidavit supporting the warrant was perjurious, stale, vague, and lacking in particularity. The killing of Breonna Taylor, however, is not just a story about the illegality of the warrant, it is also about the legality of the circumstances that facilitated her killing. Police officers lying to obtain warrants and magistrates rubber stamping facially defective warrants are the stories of individual failings. This article examines a weightier structural issue: how the Supreme Court …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

Scholarly Works

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement's presence squarely in the racist history of policing and school policing the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools must …

Felony Financial Disenfranchisement, Neel U. Sukhatme, Alexander Billy, Gaurav Bagwe

Georgetown Law Faculty Publications and Other Works

Individuals with prior felony convictions often must complete all terms of their sentence before they regain voter eligibility. Many jurisdictions include legal-financial obligations (LFOs) — fines, fees, and/or restitution stemming from convictions — in the terms of the sentence. Twenty-eight states, governing over 182 million Americans, either directly or indirectly tie LFO repayment to voting privileges, a practice we call felony financial disenfranchisement.

Proponents of felony financial disenfranchisement posit that returning citizens must satisfy the financial obligations stemming from convictions to restore themselves as community equals. Moralism aside, others claim low rates of electoral participation among those with felony convictions …

State V. Depina, 245 A.3d 1222 (R.I. 2021), Christopher Minicucci

Roger Williams University Law Review

No abstract provided.

Accidental Wiretaps: The Implications Of False Positives By Always-Listening Devices For Privacy Law & Policy, Lindsey Barrett, Ilaria Liccardi

Oklahoma Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Keynote Address, Christopher J. Buccafusco, Jeff Kosseff

Cardozo Arts & Entertainment Law Journal

The article discusses the evolution and impact of Section 230 of the Communications Decency Act, highlighting its role in shaping internet speech and liability. It traces the law's origins, key court rulings, and current debates about its future. The speaker emphasizes the need for informed discussion to address concerns about harmful content, platform moderation, and free speech.

Equality In The Streets: Using Proportionality Analysis To Regulate Street Policing, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The racially disparate impact and individual and collective costs of stop and frisk, misdemeanor arrests, and pretextual traffic stops have been well documented. Less widely noticed is the contrast between Supreme Court case law permitting these practices and the Court's recent tendency to strictly regulate technologically enhanced searches that occur outside the street policing setting and that--coincidentally or not--happen to be more likely to affect the middle class. If, as the Court has indicated, electronic tracking and searches of digital records require probable cause that evidence of crime will be found, stops and frisks should also require probable cause that …

The Fourth Amendment In The Age Of Autonomous Vehicles, Tracy Hresko Pearl

Faculty Articles

Autonomous vehicles exist at the intersection of two extremely turbulent areas of Fourth Amendment jurisprudence—traffic stops and emerging technologies—and have implications for virtually every major search and seizure doctrine developed over the last century. Complicating matters even further is the fact that car manufacturers are developing these vehicles at varying rates, meaning that vehicles with differing levels of automation are being introduced onto the consumer market at different (and often unpredictable) times. Each level of vehicle automation, in turn, poses unique issues for law enforcement. Semi-autonomous (Levels 2 and 3) vehicles make it extremely difficult for police to distinguish between …