Fourth Amendment Commons^™

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Faculty Articles

When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those big data records not only store our past, but thanks to data mining they are in many circumstances eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully different …

Arbitrary Law Enforcement Is Unreasonable: Whren's Failure To Hold Police Accountable For Traffic Enforcement Policies, Jonathan Witmer-Rich

Law Faculty Articles and Essays

Whren v. United States is surely a leading contender for the most controversial and heavily criticized Supreme Court case that was decided in a short, unanimous opinion. The slip opinion is only thirteen pages long, and provoked no dissents or even concurring opinions. Critical reaction has been overwhelmingly negative. Criticism not withstanding, the Court has not retreated from Whren, but continues to repeat its core holding.

Part I frames the problem in Whren with a story. Part II sets forth the fundamental Fourth Amendment principle underlying this article—the prohibition against arbitrary search and seizure. Part III explains how arbitrariness …

Anthony Amsterdam's Perspectives On The Fourth Amendment, And What It Teaches About The Good And Bad In Rodriguez V. United States, Tracey Maclin

UF Law Faculty Publications

Anthony Amsterdam’s article, Perspectives On The Fourth Amendment is one of the best, if not the best, law review article written on the Fourth Amendment. Thus, Minnesota Law Review on its hundredth anniversary fittingly recognizes and honors Professor Amsterdam’s article in its Symposium edition, “Standing on the Shoulders of Giants: Celebrating 100 Volumes of the Minnesota Law Review.” I am flattered that the Law Review invited me to participate in this Symposium. Specifically, my article connects two perspectives from Amsterdam’s article — the Fourth Amendment’s concern with discretionary police power and the Framers’ vision of the Fourth Amendment to bar …

For The Protection Of Society's Most Vulnerable, The Ada Should Apply To Arrests, Thomas J. Auner

Loyola of Los Angeles Law Review

No abstract provided.

Ignorance Of The Law Is No Excuse—Unless You’Re A Cop, Hannah Dunn

Loyola of Los Angeles Law Review

No abstract provided.

Post Quon: An Analysis Of The Evolution Of New Media And The Employment Relationship, John H. Shannon, Susan A. O’Sullivan-Gavin

Journal of Business & Technology Law

No abstract provided.

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Articles

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. The original constitutional taint disappears in the wash.

Courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. …

When The Police Get The Law Wrong: How Heien V. North Carolina Further Erodes The Fourth Amendment, Vivan M. Rivera

Loyola of Los Angeles Law Review

No abstract provided.

Constitutional Law: Hey, That's My Trash! Warrantless Searches Of Garbage Under The Minnesota Constitution—State V. Mcmurray, Lauren M. Hoglund

Mitchell Hamline Law Review

No abstract provided.

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson, Stephen E. Henderson

Faculty Articles

What is the constitutional significance of the proverbial “keep off the grass” sign? This question—asked by curmudgeonly neighbors everywhere—has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding—and control over—access to property, “the people” may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education and empowerment: Fourth Amendment LAWn signs. With every …

A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson

Faculty Articles

In Other People’s Papers, Jane Bambauer argues for careful reform of the Fourth Amendment’s third party doctrine, providing an important contribution to an increasingly rich field of scholarship, judicial opinion, statute, and law reform. Bambauer is especially concerned with access to bodies of third-party data that can be filtered and mined, as they can be privacy invasive but also effective and less subject to traditional investigative prejudices and limitations. Although her article provocatively overclaims in trying to set itself apart from existing proposals, by analyzing existing constitutional and statutory law—including what I have termed a “limited” third party doctrine—and comparing …

Gags As Guidance: Expanding Notice Of National Security Letter Investigations To Targets And The Public, Rebecca Wexler

Faculty Scholarship

National Security Letters (NSLs) are administrative subpoenas that the FBI uses to demand information from Internet service providers without prior judicial approval. They almost always include nondisclosure orders, commonly called “gags,” which prohibit the recipient from discussing the letter’s contents or even its mere existence. Courts and commentators have expressed concern that these gags may be overbroad prior restraints that violate the First Amendment and shroud government surveillance in undue secrecy. On November 30, 2015, an NSL gag order was lifted in full for the first time after a federal district judge found no “good reason” to retain it.

This …

Teaching Criminal Procedure: Why Socrates Would Use Youtube, Stephen E. Henderson, Joseph Thai

Faculty Articles

In this invited contribution to the Law Journal's annual Teaching Issue, we pay some homage to the great philosopher whose spirit allegedly guides our classrooms, in service of two concrete goals. One, we employ dialogue to describe the “nuts and bolts” of teaching Criminal Procedure, most of which are equally relevant to any doctrinal law school course (including course description, office hours, seating charts and attendance, class decorum and recording, student participation, laptops, textbooks, class preparation and presentation, and exams). Two, we explain the benefits of using multimedia in the classroom, including a few of the many modules found on …

Search Incident To Probable Cause?: The Intersection Of Rawlings And Knowles, Marissa Perry

Michigan Law Review

The search incident to arrest exception authorizes an officer to search an arrestee’s person and his or her area of immediate control. This exception is based on two historical justifications: officer safety and evidence preservation. While much of search incident to arrest doctrine is settled, tension exists between two Supreme Court cases, Rawlings v. Kentucky and Knowles v. Iowa, and a crucial question remains unanswered: Must an officer decide to make an arrest prior to commencing a search? In Rawlings, the Supreme Court stated that a search may precede a formal arrest if the arrest follows quickly thereafter. In Knowles, …

The Big Picture View Of Anonymous Tips From Ordinary People, Amanda M. Dadiego

Touro Law Review

No abstract provided.

What's Fear Got To Do With It?: The "Armed And Dangerous" Requirement Of Terry, Gerald S. Reamey

Marquette Law Review

Rarely has a court’s opinion, even one from the Supreme Court of the United States, so altered existing notions of constitutional criminal procedure law as did the opinion in Terry v. Ohio. On several levels, the opinion dramatically shifted the way in which the Fourth Amendment was understood. Law students who had learned about the probable cause “requirement” and the warrant “requirement” were surprised to learn, especially in the case of the former, that these “requirements” were not required at all. To continue to conceptualize the Fourth Amendment’s single sentence guarantees as consisting of a “warrant clause” and a “reasonableness” …

The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports

Faculty Scholarship

This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.

In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question …

Heien'S Mistake Of Law, Kit Kinports

Faculty Scholarship

The Supreme Court has been whittling away at the Fourth Amendment for decades. The Court's 2014 ruling in Heien v. North Carolina allowing the police to make a traffic stop based on a reasonable mistake of law generated little controversy among the Justices and escaped largely unnoticed by the press-perhaps because yet another Supreme Court decision reading the Fourth Amendment narrowly is not especially noteworthy or because the opinion's cursory and overly simplistic analysis equating law enforcement's reasonable mistakes of fact and law minimized the significance of the Court's decision. But the temptation to dismiss Heien as just another small …

The Sixth Pillar Of Anti-Money Laundering Compliance: Balancing Effective Enforcement With Financial Privacy, Maria A. De Dios

Brooklyn Journal of Corporate, Financial & Commercial Law

The U.S. government has responded to the increase of financial crimes, including money laundering and terrorist financing, by requiring that financial institutions implement anti-money laundering compliance programs within their institutions. Most recently, the Financial Crimes Enforcement Network exercised its regulatory powers, as authorized by the Treasury Department, by proposing regulations that now explicitly add customer due diligence to the preexisting anti-money laundering regime. The policy behind the government’s legislative and regulatory measures is clear—financial institutions must ensure that they are protected from and not aiding in the illegal efforts of criminals. The complexity and insidiousness of these financial crimes makes …

Trying To Fit A Square Peg Into A Round Hole: Why Title Ii Of The Americans With Disabilities Act Must Apply To All Law Enforcement Services, Michael Pecorini

Journal of Law and Policy

Police use of force has been subject to greater scrutiny in recent years in the wake of several high-profile killings of African Americans. Less attention, however, has been paid to the increasingly routine violent encounters between police and individuals with mental illness or intellectual and development disabilities (“I/DD”). This is particularly problematic, as police have become the de-facto first responders to these individuals and far too often police responses to these individuals result in tragedy.

This Note argues that the Americans with Disabilities Act requires law enforcement to provide reasonable accommodations during their interactions with and seizures of individuals with …