Constitutional Culpability: Questioning The New Exclusionary Rules, 2014 American University Washington College of Law
Constitutional Culpability: Questioning The New Exclusionary Rules, Andrew Ferguson
Articles in Law Reviews & Other Academic Journals
This article addresses the questions left unanswered by the Supreme Court’s recent exclusionary rule cases. The Hudson-Herring-Davis trilogy presents a new and largely unexamined doctrinal landscape for Fourth Amendment suppression hearings. Courts, litigators, and scholars are only now assessing what has changed on the ground in trial practice.Once an automatic remedy for any constitutional violation, the exclusionary rule, now necessitates a separate and more searching analysis. Rights and remedies have been decoupled, such that a clear Fourth Amendment constitutional violation may not lead to the exclusion of evidence. Instead, it now leads to an examination of the conduct of the …
Comments: Droning On About The Fourth Amendment: Adopting A Reasonable Fourth Amendment Jurisprudence To Prevent Unreasonable Searches By Unmanned Aircraft Systems, 2014 University of Baltimore School of Law
Comments: Droning On About The Fourth Amendment: Adopting A Reasonable Fourth Amendment Jurisprudence To Prevent Unreasonable Searches By Unmanned Aircraft Systems, Joel Celso
University of Baltimore Law Review
No abstract provided.
Issue 2: Table Of Contents, 2014 University of Richmond
Cause To Believe What? The Importance Of Defining A Search's Object--Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, 2014 Vanderbilt University Law School
Cause To Believe What? The Importance Of Defining A Search's Object--Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the mere evidence rule in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the object of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search might lead to evidence of wrongdoing triggers a very different inquiry than probable cause to believe that a search will produce evidence of criminal activity. The failure to address the constraints that should be imposed on …
Maryland's Social Networking Law: No "Friend" To Employers And Employees, 2014 University of Maryland Francis King Carey School of Law
Maryland's Social Networking Law: No "Friend" To Employers And Employees, Alexander Borman
Journal of Business & Technology Law
No abstract provided.
Bailey V. United States: Drawing An Exception In The Context Of Off-Premises Detentions Incident To Search Warrants, 2014 University of Maryland Francis King Carey School of Law
Bailey V. United States: Drawing An Exception In The Context Of Off-Premises Detentions Incident To Search Warrants, Christopher Chaulk
Maryland Law Review
No abstract provided.
The Right To Digital Privacy: Advancing The Jeffersonian Vision Of Adaptive Change, 2014 Claremont McKenna College
The Right To Digital Privacy: Advancing The Jeffersonian Vision Of Adaptive Change, Kerry Moller
CMC Senior Theses
The relationship between privacy, technology, and law is complex. Thomas Jefferson’s prescient nineteenth century observation that laws and institutions must keep pace with the times offers a vision for change. Statutory law and court precedents help to define our right to privacy, however, the development of new technologies has complicated the application of old precedents and statutes. Third party organizations, such as Google, facilitate new methods of communication, and the government can often collect the information that third parties receive with a subpoena or court order, rather than a Fourth Amendment-mandated warrant. Privacy promotes fundamental democratic freedoms, however, under current …
Maryland V. King: Sacrificing The Fourth Amendment To Build Up The Dna Database, 2014 University of Maryland Francis King Carey School of Law
Maryland V. King: Sacrificing The Fourth Amendment To Build Up The Dna Database, Stephanie B. Noronha
Maryland Law Review
No abstract provided.
The Purpose Of The Fourth Amendment And Crafting Rules To Implement That Purpose, 2014 University of Mississippi School of Law
The Purpose Of The Fourth Amendment And Crafting Rules To Implement That Purpose, Thomas K. Clancy
University of Richmond Law Review
No abstract provided.
Cause To Believe What? The Importance Of Defining A Search's Object—Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, 2014 University of Florida College of Law
Cause To Believe What? The Importance Of Defining A Search's Object—Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, Christopher Slobogin
Oklahoma Law Review
Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the “mere evidence rule” in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the “object” of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search “might lead to evidence of wrongdoing” triggers a very different inquiry than probable cause to believe that a search “will produce evidence of criminal activity.” The failure to address the constraints that should be imposed on …
Ubiquitous Privacy, 2014 University of South Carolina School of Law
Big Data Distortions: Exploring The Limits Of The Aba Leatpr Standards, 2014 University of the District of Columbia
Big Data Distortions: Exploring The Limits Of The Aba Leatpr Standards, Andrew G. Ferguson
Oklahoma Law Review
Before moving on to my contribution about how the growing reliance on big data analytics may necessitate a slight modification to the ABA Standards on Law Enforcement Access to Third Party Records (LEATPR Standards), I would like first to pay a few compliments to the drafters of the LEATPR Standards for producing such a systematic, thoughtful, and elegant framework for considering Fourth Amendment freedoms. As anyone who writes about or teaches the Fourth Amendment knows, the doctrine remains a theoretical muddle. Yet, despite a minefield of conflicting precedent, the drafters of the LEATPR Standards have managed to construct a defensible …
Light In The Darkness: How The Leatpr Standards Guide Legislators In Regulating Law Enforcement Access To Cell Site Location Records, 2014 University of San Francisco
Light In The Darkness: How The Leatpr Standards Guide Legislators In Regulating Law Enforcement Access To Cell Site Location Records, Susan Freiwald
Oklahoma Law Review
No abstract provided.
The Rapid Rise Of Delayed Notice Searches, And The Fourth Amendment "Rule Requiring Notice", 2014 Cleveland-Marshall College of Law, Cleveland State University
The Rapid Rise Of Delayed Notice Searches, And The Fourth Amendment "Rule Requiring Notice", Jonathan Witmer-Rich
Law Faculty Articles and Essays
This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment's "rule requiring notice."
Congress authorized these "sneak and peek" warrants in the USA Patriot Act of 2001, and soon after added a reporting requirement to monitor this invasive search technique. Since 2001, the use of delayed notice search warrants has risen dramatically, from around 25 in 2002 to 5601 in 2012, suggesting that "sneak and peek" searches are becoming alarmingly common. In fact, it is not at all clear whether true "sneak …
The Aba Standards For Criminal Justice: Law Enforcement Access To Third Party Records: Critical Perspectives From A Technology-Centered Approach To Quantitative Privacy, 2014 University of Maryland School of Law
The Aba Standards For Criminal Justice: Law Enforcement Access To Third Party Records: Critical Perspectives From A Technology-Centered Approach To Quantitative Privacy, David C. Gray
Oklahoma Law Review
No abstract provided.
The Exclusionary Rule As A Symbol Of The Rule Of Law, 2014 Southern Methodist University, Dedman School of Law
The Exclusionary Rule As A Symbol Of The Rule Of Law, Jenia I. Turner
SMU Law Review
Throughout South America, Southern and Eastern Europe, and East Asia, more than two dozen countries have transitioned to democracy since the 1980s. A remarkable number of these have adopted an exclusionary rule (mandating that evidence obtained unlawfully by the government is generally inadmissible in criminal trials) as part of broader legal reforms. Democratizing countries have adopted exclusionary rules even though they are not required to do so by any international treaty and there is no indication that there is widespread popular demand for such rules. This has occurred at a time when the rule has been weakened in the United …
Privacy In Public, 2014 Fordham University School of Law
Privacy In Public, Joel R. Reidenberg
Faculty Scholarship
As government and private companies rapidly expand the infrastructure of surveillance from cameras on every street corner to facial recognition for photographs on social media sites, privacy doctrines built on seclusion are at odds with technological advances. This essay addresses a key conceptual problem in US privacy law identified by Justice Sotomayor in U.S. v. Jones and by Justice Scalia in Kyllo v. U.S.; namely that technological capabilities undermine the meaning of the third-party doctrine and the 4th Amendment's ‘reasonable expectation of privacy’ standard. The essay argues that the conceptual problem derives from the evolution of three stages of development …
Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, 2014 Fordham University School of Law
Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, Olivier Sylvain
Faculty Scholarship
Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.This Essay argues that the reasonable …
School Surveillance And The Fourth Amendment, 2014 University of Florida Levin College of Law
School Surveillance And The Fourth Amendment, Jason P. Nance
UF Law Faculty Publications
In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …
The Law And Economics Of Stop-And-Frisk, 2014 University of Pennsylvania Carey Law School
The Law And Economics Of Stop-And-Frisk, David S. Abrams
All Faculty Scholarship
The relevant economic and legal research relating to police use of stop-and-frisk has largely been distinct. There is much to be gained by taking an interdisciplinary approach. This Essay emphasizes some of the challenges faced by those seeking to evaluate the efficacy and legality of stop-and-frisk, and suggests some ways forward and areas of exploration for future research.