Fourth Amendment Commons^™

Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf

Scholarly Works

This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single …

International Comity And The Non-State Actor, Microsoft: Why Law Enforcement Access To Data Stored Abroad Act (Leads Act) Promotes International Comity, Sabah Siddiqui

Catholic University Journal of Law and Technology

Currently large email service providers, such as Google, Microsoft and Yahoo are refusing to comply with warrants issued under the Secured Communications Act (“SCA”) because in many instances, the requested information may be stored in servers located abroad. In the dismissed Supreme Court case, In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corporation, the Supreme Court should have addressed whether an internet service provider must comply with a warrant issued under the SCA when the requested information is stored in a foreign country and whether enforcement of these warrants would be an impermissible …

State V. Hill, Nazariy Gavrysh

NYLS Law Review

No abstract provided.

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang Ngov

Faculty Articles

No abstract provided.

Fourth Amendment Anxiety, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information can be cause for “anxiety,” meriting constitutional protection, even if subsequent uses of the information are tightly restricted. This change is significant. While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing. Beyond offering a careful reading of Birchfield, this Article has two goals. First, …

Illegal Predicate Searches And Tainted Warrants After Heien And Strieff, Kit Kinports

Faculty Scholarship

A long-standing debate has surrounded the relationship between two features of the Fourth Amendment's exclusionary rule - the fruits of the poisonous tree doctrine and the good-faith exception - in cases where the evidence used to secure a search warrant was obtained in violation of the defendant's constitutional rights. Some judges and scholars maintain that the fruits of the poisonous tree doctrine takes precedence in such "tainted warrant" cases, leading to the suppression of any evidence seized in executing the warrant unless the warrant was supported by probable cause independent of the illegal predicate search. By contrast, others believe that …

A Genealogy Of Programmatic Stop And Frisk: A Discourse-To-Practice-Circuit, Frank Rudy Cooper

Scholarly Works

President Trump has called for increased use of the recently predominant policing methodology known as programmatic stop and frisk. This Article contributes to the field by identifying, defining, and discussing five key components of the practice: (1) administratively dictated (2) pervasive Terry v. Ohio stops and frisks (3) aimed at crime prevention by means of (4) data-enhanced profiles of suspects that (5) target young racial minority men. Whereas some scholars see programmatic stop and frisk as solely the product of individual police officer bias, this Article argues for understanding how we arrived at specific police practices by analyzing three levels …

Get Off My Porch: United States V. Carloss And The Escalating Dangers Of “Knock And Talks”, Skyler K. Sikes

Oklahoma Law Review

No abstract provided.

United States V. Carloss: Should The Police Act Like Good Neighbors?, Cole Mclanahan

Oklahoma Law Review

No abstract provided.

Katz V. United States: Back To The Future?, Michael Vitiello

University of Richmond Law Review

No abstract provided.

United States V. Ammons, Rebecca Ruffer

NYLS Law Review

No abstract provided.

Resolving The Circuit Split Over Consent Based Searches In Shared Living Spaces, Christopher Grimaldi

Cardozo International & Comparative Law Review

The note argues that the police, not citizens, should bear the responsibility of resolving ambiguities in consent to search cases under the Fourth Amendment. It advocates for a solution that aligns with Supreme Court precedent, particularly Rodriguez and Salinas-Cano, to ensure constitutional protections while maintaining efficient law enforcement. The proposed approach emphasizes the importance of police inquiry to clarify authority over jointly used property, balancing individual privacy rights with practical law enforcement needs.

A Descriptive Analysis Of The Fourth Amendment And The Third-Party Doctrine In The Digital Age, Lawrence J. Trautman, Peter Ormerod

Faculty Publications

There are few areas of constitutional law that raise scholars’ ire and trouble jurists like the Fourth Amendment’s third-party doctrine. Making sense of the Court’s distinctions between content and metadata and between personal communications and business records was already difficult with physical documents and analog technologies. But the proliferation of digital technologies has rendered obsolete the factual predicates underpinning those distinctions, and courts have struggled mightily with adapting third-party rules forged over thirty years ago to new technologies.

At the same time, the Supreme Court has become more explicit in fashioning distinct Fourth Amendment rules for digital 74 ALB. L.J. …

Exigent Circumstances And Searches Incident To Arrest In New York: The Difficulties And Distinctions, Kyle Knox

Touro Law Review

No abstract provided.

Why Courts Fail To Protect Privacy: Race, Age, Bias, And Technology, Bernard Chao, Catherine Durso, Ian Farrell, Christopher Robertson

Faculty Scholarship

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If …

Body Cameras And The Path To Redeem Privacy Law, Woodrow Hartzog

Faculty Scholarship

From a privacy perspective, the movement towards police body cameras seems ominous. The prospect of a surveillance device capturing massive amounts of data concerning people’s most vulnerable moments is daunting. These concerns are compounded by the fact that there is little consensus and few hard rules on how and for whom these systems should be built and used. But in many ways, this blank slate is a gift. Law and policy makers are not burdened by the weight of rules and technologies created in a different time for a different purpose. These surveillance and data technologies will be modern. Many …

Policing Narrative, Tal Kastner

Scholarly Works

Counter narrative, a story that calls attention to and rebuts the presumptions of a dominant narrative framework, functions as an essential tool to reshape the bounds of the law. It has the potential to shape the collective notion of what constitutes legal authority. Black Lives Matter offers a counter narrative that challenges the characterization of the shared public space, among other aspects of contemporary society, as the space of law. Using the concept of necropower--the mobilization and prioritization of the state's power to kill--I analyze the contested physical and conceptual space of law exposed by the counter narrative of Black …

Private Actors, Corporate Data And National Security: What Assistance Do Tech Companies Owe Law Enforcement?, Caren Morrison

William & Mary Bill of Rights Journal

When the government investigates a crime, do citizens have a duty to assist? This question was raised in the struggle between Apple and the FBI over whether the agency could compel Apple to defeat its own password protections on the iPhone of one of the San Bernardino shooters. That case was voluntarily dismissed as moot when the government found a way of accessing the data on the phone, but the issue remains unresolved.

Because of advances in technology, software providers and device makers have been able to develop almost impenetrable protection for their customers’ information, effectively locking law enforcement out …

The Fourth Amendment Disclosure Doctrines, Monu Bedi

William & Mary Bill of Rights Journal

The third party and public disclosure doctrines (together the “disclosure doctrines”) are long-standing hurdles to Fourth Amendment protection. These doctrines have become increasingly relevant to assessing the government’s use of recent technologies such as data mining, drone surveillance, and cell site location data. It is surprising then that both the Supreme Court and scholars, at times, have associated them together as expressing one principle. It turns out that each relies on unique foundational triggers and does not stand or fall with the other. This Article tackles this issue and provides a comprehensive topology for analyzing the respective contours of each …

Feeding The Machine: Policing, Crime Data, & Algorithms, Elizabeth E. Joh

William & Mary Bill of Rights Journal

No abstract provided.