New Jersey V. T.L.O.: The Supreme Court Severely Limits Schoolchildrens' Fourth Amendment Rights When Being Searched By Public School Officials,
2013
Pepperdine University
New Jersey V. T.L.O.: The Supreme Court Severely Limits Schoolchildrens' Fourth Amendment Rights When Being Searched By Public School Officials, Missy Kelly Bankhead
Pepperdine Law Review
No abstract provided.
A Smarter Rule For Smarter Phones: Why Sila Does Not Protect Our Smartphones And Why The California
Legislature Should,
2013
Pacific McGeorge School of Law
A Smarter Rule For Smarter Phones: Why Sila Does Not Protect Our Smartphones And Why The California Legislature Should, Russell Cooper
McGeorge Law Review
No abstract provided.
Genetic Privacy & The Fourth Amendment: Unregulated Surreptitious Dna Harvesting,
2013
University of New Hampshire School of Law
Genetic Privacy & The Fourth Amendment: Unregulated Surreptitious Dna Harvesting, Albert E. Scherr
Georgia Law Review
Genetic privacy and police practices have come to the
fore in the criminal justice system. Case law and stories
in the media document that police are surreptitiously
harvesting the out-of-body DNA of putative suspects.
Some sources even indicate that surreptitious data
banking may also be in its infancy. Surreptitious
harvesting of out-of-body DNA by the police is currently
unregulated by the Fourth Amendment. The few courts
that have addressed the issue find that the police are free
to harvest DNA abandoned by a putative suspect in a
public place. Little in the nascent surreptitious harvesting
case law suggests that surreptitious …
From Selfies To Shackles: Why The Government May Be Able To Search Your Cell Phone Without A Warrant,
2013
American University Washington College of Law
From Selfies To Shackles: Why The Government May Be Able To Search Your Cell Phone Without A Warrant, Rochelle Brunot
Criminal Law Practitioner
No abstract provided.
The New American Privacy,
2013
University of Massachusetts School of Law - Dartmouth
The New American Privacy, Richard J. Peltz-Steele
Faculty Publications
Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 …
Eyes In The Sky: Constitutional And Regulatory Approaches To Domestic Drone Deployment,
2013
University of Massachusetts School of Law - Dartmouth
Eyes In The Sky: Constitutional And Regulatory Approaches To Domestic Drone Deployment, Hillary B. Farber
Faculty Publications
This article begins with a current look at the deployment of drones domestically, both in terms of their use and the procedure for attaining approval for flight. Part II examines the capabilities of drones. Part III considers the Supreme Court's current Fourth Amendment jurisprudence and its application to law enforcement's use of drones. Part IV reviews existing and proposed federal and state regulation of drones. Part V offers constitutional and legislative prescriptions for regulating drones.
A Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence,
2013
University of Maryland Francis King Carey School of Law
A Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence, David C. Gray
Faculty Scholarship
Much of the Supreme Court’s contemporary Fourth Amendment exclusionary rule jurisprudence is constructed upon an analytic mistake that H.L.A. Hart described in another context as a “spectacular non sequitur.” That path to irrelevance is paved by the Court’s recent insistence that the sole justification for excluding evidence seized in violation of the Fourth Amendment is the prospect of deterring law enforcement officers. This deterrence-only approach ignores or rejects more principled justifications that inspired the rule at its genesis and have sustained it through the majority of its history and development. More worrisome, however, is the conceptual insufficiency of deterrence considerations …
Neurotechnologies At The Intersection Of Criminal Procedure And Constitutional Law,
2013
University of Maryland Francis King Carey School of Law
Neurotechnologies At The Intersection Of Criminal Procedure And Constitutional Law, Amanda C. Pustilnik
Faculty Scholarship
The rapid development of neurotechnologies poses novel constitutional issues for criminal law and criminal procedure. These technologies can identify directly from brain waves whether a person is familiar with a stimulus like a face or a weapon, can model blood flow in the brain to indicate whether a person is lying, and can even interfere with brain processes themselves via high-powered magnets to cause a person to be less likely to lie to an investigator. These technologies implicate the constitutional privilege against compelled, self-incriminating speech under the Fifth Amendment and the right to be free of unreasonable search and seizure …
A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy,
2013
University of Maryland Franics King Carey School of Law
A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron
Faculty Scholarship
On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and …
The Right To Quantitative Privacy,
2013
University of Maryland Franics King Karey School of Law
The Right To Quantitative Privacy, David C. Gray, Danielle Keats Citron
Faculty Scholarship
We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of …
Florence V. Board Of Chosen Freeholders: Maintaining Jail Security While Stripping Detainees Of Their Constitutional Rights,
2013
University of Maryland Francis King Carey School of Law
Florence V. Board Of Chosen Freeholders: Maintaining Jail Security While Stripping Detainees Of Their Constitutional Rights, Nina Gleiberman
Maryland Law Review Online
No abstract provided.
On The 'Considered Analysis' Of Collecting Dna Before Conviction,
2013
Penn State Law
On The 'Considered Analysis' Of Collecting Dna Before Conviction, David H. Kaye
Journal Articles
For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland's highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Chief Justice Roberts stayed the Maryland judgment, writing that "given the considered analysis of courts on the other side …
Maryland V. King: Per Se Unreasonableness, The Golden Rule, And The Future Of Dna Databases,
2013
Penn State Law
Maryland V. King: Per Se Unreasonableness, The Golden Rule, And The Future Of Dna Databases, David H. Kaye
Journal Articles
In Maryland v. King, the Supreme Court applied a balancing test to uphold a Maryland statute mandating preconviction collection and analysis of DNA from individuals charged with certain crimes. The DNA profiles are limited to an inherited set of DNA sequences that are not known to be functional and that are tokens of individual identity. This invited online essay examines two aspects of an article on the case by Professor Erin Murphy. I question the claim that the case is pivotal in a conceivable abandonment of the per se rule that warrantless, suspicionless searches are unconstitutional unless they fall …
The Dog Days Fourth Amendment Jurisprudence,
2013
Penn State Law
The Dog Days Fourth Amendment Jurisprudence, Kit Kinports
Journal Articles
This Article discusses Florida v. Harris and Florida v. Jardines, the two Fourth Amendment drug dog opinions issued by the Supreme Court earlier this year. Together the cases hold that a narcotics detection dog effects a “search” when it intrudes on a constitutionally protected area in order to collect evidence, but that the dog’s positive alert is generally sufficient to support a finding of probable cause. The piece argues that both cases essentially generate a bright-line rule, thereby deviating from precedent that favored a more amorphous standard considering all the surrounding circumstances. Like many purportedly clear rules, the ones …
Culpability, Deterrence, And The Exclusionary Rule,
2013
Penn State Law
Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports
Journal Articles
This Article discusses the Supreme Court’s use of the concepts of culpability and deterrence in its Fourth Amendment jurisprudence, in particular, in the opinions applying the good-faith exception to the exclusionary rule. The contemporary Court sees deterrence as the exclusionary rule’s sole function, and the Article begins by taking the Court at its word, evaluating its exclusionary rule case law on its own terms. Drawing on three different theories of deterrence – economic rational choice theory, organizational theory, and the expressive account of punishment – the Article analyzes the mechanics by which the exclusionary rule deters unconstitutional searches and questions …
Pass Parallel Privacy Standards Or Privacy Perishes,
2013
Penn State Law
Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. Mckenna
Journal Articles
No abstract provided.
Warrantless Government Drone Surveillance: A Challenge To The Fourth Amendment, 30 J. Marshall J. Info. Tech. & Privacy L. 155 (2013),
2013
UIC School of Law
Warrantless Government Drone Surveillance: A Challenge To The Fourth Amendment, 30 J. Marshall J. Info. Tech. & Privacy L. 155 (2013), Jennifer O'Brien
UIC John Marshall Journal of Information Technology & Privacy Law
The Federal Aviation Administration Modernization and Reform Act of 2012 aims to integrate drones into the United States national airspace by 2015. While the thought of prevalent private and public daily drone use might seem implausible now, the combination of this new legislation and the increasing availability of inexpensive, technologically advanced small drones will make it a reality. From detectaphones to pen registers and most recently, the GPS, the Supreme Court has faced a plethora of unreasonable search challenges to the warrantless use of such sense augmentation devices by law enforcement to collect information. Acting as the privacy safeguard of …
Florida V. Jardines: The Wolf At The Castle Door,
2013
Washington and Lee University School of Law
Florida V. Jardines: The Wolf At The Castle Door, Timothy C. Macdonnell
Scholarly Articles
The purpose of this article is to examine the controversy regarding the application of the contraband exception to the home and the potential impact of the Florida v. Jardines decision of the U.S. Supreme Court. The article will begin by examining the cases that make up the Supreme Court's contraband exception and some of the Court's precedent regarding the home and warrantless searches. Next, the article will examine the Florida Supreme Court's holding in Jardines and discuss how the Florida court arrived at the conclusion that the canine sniff in that case was a search. This section will compare the …
Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability,
2013
Touro Law Center
Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz
Scholarly Works
This article discusses the Supreme Court's ruling in Rehberg v. Paulk, 132 S. Ct. 1497 (2012), which extended the absolute witness immunity recognized in Briscoe v. LaHue, to grand jury witnesses. In an unanimous opinion, written by Justice Samuel A. Alito, Jr., the Court held that grand jury witnesses are absolutely immune from §1983 liability for their testimony, and even for conspiring to give false testimony.
Do The Federal Courts Sweep Buie Clean?,
2013
American University Washington College of Law
Do The Federal Courts Sweep Buie Clean?, Jeffrey T. Wennar
Criminal Law Practitioner
No abstract provided.
