Fourth Amendment Commons^™

Searches By Environmental Protection Agencies: When Is A Warrant Necessary?, David Sparks

Journal of Natural Resources & Environmental Law

No abstract provided.

Divided Court Issues Bright-Line Ruling On Fourth Amendment Seizures, Jeffrey Bellin

Popular Media

No abstract provided.

Cloudy With A Chance Of Government Intrusion: The Third-Party Doctrine In The 21st Century, Steven Arango

Catholic University Law Review

Technology may be created by humans, but we are dependent on it. Look around you: what technology is near you as you read this abstract? An iPhone? A laptop? Perhaps even an Amazon Echo. What do all these devices have in common? They store data in the cloud. And this data can contain some of our most sensitive information, such as business records or medical documents.

Even if you manage this cloud storage account, the government may be able to search your data without a warrant. Federal law provides little protection for cloud stored data. And the Fourth Amendment may …

Preview—United States V. Cooley: What Will Happen To The Thinnest Blue Line?, Jo J. Phippin

Public Land & Resources Law Review

The Supreme Court of the United States ("Supreme Court") will hear oral arguments in this matter on Tuesday, March 23, 2021. This case presents the narrow issue of whether a tribal police officer has the authority to investigate and detain a non-Indian on a public right-of-way within a reservation for a suspected violation of state or federal law. The lower courts, holding that tribes have no such authority, granted James Cooley’s motion to suppress evidence. The Supreme Court must decide whether the lower courts erred in so deciding. While the issue before the Supreme Court is itself narrow, it has …

The War On Drugs: Moral Panic And Excessive Sentences, Michael Vitiello

Cleveland State Law Review

The United States’ War on Drugs has not been pretty. Moral panic has repeatedly driven policy when states and the federal government have regulated drugs. Responding to that panic, legislators have authorized severe sentences for drug offenses.

By design, Article III gives federal judges independence, in part, to protect fundamental rights against mob rule. Unfortunately, the Supreme Court has often failed to protect fundamental rights in times of moral panic. For example, it eroded Fourth Amendment protections during the War on Drugs. Similarly, it failed to protect drug offenders from excessive prison sentences during the War on Drugs. This Article …

Learning From The Past: Using Korematsu And Other Japanese Internment Cases To Provide Protections Against Immigration Detentions, Caleb Ward

Arkansas Law Review

One of the darkest periods in modern United States history is reoccurring with mixed public approval. During World War II, the United States government enacted executive orders creating a curfew, proscribing living areas, and forcing the exclusion and detention of all Japanese descendants from the West Coast. The United States justified these grievous freedom and equality violations through an increased need for national security “because we [were] at war with [Japan].” However, this perceived increased need for national security came from a fraudulent assessment showing any Japanese-American could be planning espionage or sabotage of the United States. After the war, …

Revising Reasonableness In The Cloud, Ian Walsh

Washington Law Review

Save everything—just in case––and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such …

The Case For Replacing The Independent Intermediary Doctrine With Proximate Cause And Fourth Amendment Review In § 1983 Civil Rights Cases, Amanda Peters

Pepperdine Law Review

Plaintiffs who file claims under § 1983 of the Civil Rights Act encounter a strange blend of civil rights, tort, and criminal procedure laws. When civil rights plaintiffs sue officers and government agencies for violations of their Fourth Amendment rights, federal courts may cut off liability using qualified immunity, but they may also use a lesser-known defense of sorts called the independent intermediate doctrine. When courts permit officers to raise both qualified immunity and the doctrine, the two defensive theories provide officers something akin to absolute immunity. The doctrine treats judges, prosecutors, grand jurors, and fact finders as superseding agents …

Can I Have Some Privacy?: A Look Into The Unfortunate Truth Of Pregnancy Tests Throughout Sports And The Negative Impact On Female Athletes, Hannah Rogers

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Facial Recognition And The Fourth Amendment In The Wake Of Carpenter V. United States, Matthew Doktor

University of Cincinnati Law Review

No abstract provided.

The Exclusionary Rule, And The Problem With Search And Seizure Law Under The Ohio Constitution, Corey Bushle

University of Cincinnati Law Review

No abstract provided.

Social Norms In Fourth Amendment Law, Matthew Tokson, Ari Ezra Waldman

Utah Law Faculty Scholarship

Courts often look to existing social norms to resolve difficult questions in Fourth Amendment law. In theory, these norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. In reality, however, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. This Article draws on contemporary sociological literatures on norms and technology to reveal how courts’ reliance on norms leads to several identifiable errors in Fourth Amendment jurisprudence.

Courts assessing social norms generally adopt what we call the closure principle, or the idea that …

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …

The Power Of The Dissent And Writing The Future Of Justice: Maat, Aristotle's Rhetoric, And Justice Ginsburg's Dissent In Kentucky V. King, Livan Davidson

Intercultural Human Rights Law Review

This article explains why Ginsburg's dissent in King is rhetorically superior to the majority opinion. It evaluates, by way of comparing and contrasting, the persuasiveness of the dissent and majority opinions in King. This article examines the opinion through the lens of Aristotle's rhetorical model and the ancient tenet of Maat. It analyzes Ginsburg and Justice Alito's (Alito) use of rhetorical devices that appeal to persuasion, including logos (appeal to logic), ethos (appeal to credibility), pathos (appeal to emotions), and Maat (rightness in the world). This article concludes that Ginsburg's use of rhetoric has a superior appeal to fairness and …

Shotspotter – The New Tool To Degrade What Is Left Of The Fourth Amendment, 54 Uic L. Rev. 797 (2021), Benjamin Goodman

UIC Law Review

No abstract provided.

Facial Recognition And The Fourth Amendment, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

Facial recognition offers a totalizing new surveillance power. Police now have the capability to monitor, track, and identify faces through networked surveillance cameras and datasets of billions of images. Whether identifying a particular suspect from a still photo, or identifying every person who walks past a digital camera, the privacy and security impacts of facial recognition are profound and troubling.

This Article explores the constitutional design problem at the heart of facial recognition surveillance systems. One might hope that the Fourth Amendment – designed to restrain police power and enacted to limit governmental overreach – would have something to say …

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

How The Fourth Amendment Frustrates The Regulation Of Police Violence, Seth W. Stoughton

Faculty Publications

Within policing, few legal principles are more widely known or highly esteemed than the “objective reasonableness” standard that regulates police uses of force. The Fourth Amendment, it is argued, is not only the facet of constitutional law that governs police violence, it sets out the only standard that state lawmakers, police commanders, and officers should recognize. Any other regulation of police violence is inappropriate and unnecessary. Ironically, though, the Constitution does not actually regulate the use of force. It regulates seizures. Some uses of force are seizures. This Article explains that a surprising number of others—including some police shootings—are not. …

Reforming The High-States Gamble Of Covert Government Seizures, Jonathan Witmer-Rich

Law Faculty Articles and Essays

In a covert government seizure, police secretly enter a home when no one is present and seize contraband, often staging the scene to look like a burglary. These covert seizures are authorized by delayed notice search warrants. This Article identifies two serious problems with this practice and proposes reforms.

The first problem is that a successful covert seizure will likely provoke violent retaliation against innocent third parties. If the target of the covert seizure--say a drug dealer--believes someone has stolen a valuable drug stash, the dealer will seek to kill or harm whomever they believe conducted the burglary. The statute …

On The Broadness Of The Fourth Amendment, Janine Kim

SMU Law Review

This Article considers the role of property rights in defining Fourth Amendment searches. Since United States v. Jones in 2012, the Supreme Court has relied on both privacy and property to determine whether a Fourth Amendment search has occurred. But recently, many of the Justices have expressed increasing skepticism about not only the effectiveness but also the appropriateness of safeguarding privacy. The 2018 case of Carpenter v. United States, which ruled that an individual’s cell site location information is protected under the Fourth Amendment, saw all four dissenters urging a larger role for property rights in the analysis of a …