Fourth Amendment Commons^™

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

The Purpose Of The Fourth Amendment And Crafting Rules To Implement That Purpose, Thomas K. Clancy

University of Richmond Law Review

No abstract provided.

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 …

Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports

Faculty Scholarship

This piece argues that the Supreme Court's April 2014 decision in Navarette v. Calfornia, like last Term's opinion in Florida v. Harris, deviates from longstanding Supreme Court precedent treating probable cause and reasonable suspicion as totality-of-the-circumstances tests. Instead, these two recent rulings essentially rely on rigid rules to define probable cause and reasonable suspicion. The article criticizes the Court for selectively endorsing bright-line tests that favor the prosecution, and argues that both decisions generate rules that oversimplify and therefore tend to be overinclusive.

Spillover Across Remedies, Michael Coenen

Journal Articles

Remedies influence rights, and rights apply across remedies. Combined together, these two phenomena produce the problem of spillover across remedies. The spillover problem occurs when considerations specific to one remedy affect the definition of a substantive rule that governs in other remedial settings. For example, the severe remedial consequences of suppressing incriminating evidence might generate substantive Fourth Amendment precedents that make other Fourth Amendment remedies (such as damage awards, injunctions, or ex ante denials of search warrants) more difficult to obtain. Or, the rule of lenity might yield a narrowed reading of a statutory rule in a criminal case, which …

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 …

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 …

The Impact Of Clapper V. Amnesty International Usa On The Doctrine Of Fear-Based Standing, Amanda M. Mcdowell

Georgia Law Review

The Supreme Court's 2013 decision in Clapper v. Amnesty International USA dealt with the government's electronic surveillance authority under the Foreign Intelligence SurveillanceAct (FISA) Amendments. In a 5- 4 opinion, the Court held that a variety of U.S. persons, including attorneys and media organizations, did not have standing to challenge the constitutionality of the FISA Amendments because the plaintiffs' fear of future unlawful surveillance was not "certainly impending." Depending on how lower courts choose to interpret Clapper, the decision could have a significant impact on the doctrine of fear-based standing, which allows plaintiffs to establish standing based on fear of …

Maryland V. King: Sacrificing The Fourth Amendment To Build Up The Dna Database, Stephanie B. Noronha

Maryland Law Review

No abstract provided.

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 Anomaly Of Entrapment, Jessica A. Roth

Articles

Now in our second decade after 9/11, we are firmly in the prevention era of law enforcement. Faced with the unacceptable consequences of identifying threats too late, government agents are moving aggressively to identify potential terrorists before they strike. Undercover agents and confidential informants necessarily play a large role in such efforts. As a result of such operations, we have seen a number of cases brought to trial in the federal courts in which defendants have asserted the entrapment defense. To date, the defense has not succeeded. However, as a consequence of these cases, the United States Supreme Court may …

Nuance, Technology, And The Fourth Amendment: A Response To Predictive Policing And Reasonable Suspicion, Fabio Arcila Jr.

Scholarly Works

In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.

Deadly Drones, Due Process, And The Fourth Amendment, William Funk

William & Mary Bill of Rights Journal

No abstract provided.

Administrative Searches, Technology And Personal Privacy, Russell L. Weaver

William & Mary Bill of Rights Journal

No abstract provided.

The Court Loses Its Way With The Global Positioning System: United States V. Jones Retreats To The “Classic Trespassory Search”, George M. Dery Iii, Ryan Evaro

Michigan Journal of Race and Law

This Article analyzes United States v. Jones, in which the Supreme Court considered whether government placement of a global positioning system (GPS) device on a vehicle to follow a person’s movements constituted a Fourth Amendment “search.” The Jones Court ruled that two distinct definitions existed for a Fourth Amendment “search.” In addition to Katz v. United States’s reasonable-expectation-of-privacy standard, which the Court had used exclusively for over four decades, the Court recognized a second kind of search that it called a “classic trespassory search.” The second kind of search occurs when officials physically trespass or intrude upon a constitutionally protected …

Seizing A Cell Phone Incident To Arrest: Data Extraction Devices, Faraday Bags, Or Aluminum Foil As A Solution To The Warrantless Cell Phone Search Problem, Adam M. Gershowitz

William & Mary Bill of Rights Journal

No abstract provided.

Contextual Expectations Of Privacy, Andrew D. Selbst

Cardozo Law Review

Fourth Amendment search jurisprudence is nominally based on a "reasonable expectation of privacy," but actual doctrine is disconnected from society's conception of privacy. Courts rely on various binary distinctions: Is a piece of information secret or not? Was the observed conduct inside or outside? While often convenient, none of these binary distinctions can adequately capture the complicated range of ideas encompassed by "privacy." Privacy theorists have begun to understand that a consideration of social context is essential to a full understanding of privacy. Helen Nissenbaum's theory of contextual integrity, which characterizes a right to privacy as the preservation of expected …

The Right To Quantitative Privacy, David Gray, Danielle K. 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 …

When School Is Not In Session: How Student Drug Testing Can Transform Parenting, Amanda R. Lamberson

Touro Law Review

This comment focuses on a growing trend in today's schools: requiring drug tests. A focus is given both to the judiciary's role in this matter and the Legislature's passage of New York Education Law section 912-a, 10 which regulates student drug testing and urine analysis.

The Fourth Amendment's National Security Exception: Its History And Limits, L. Rush Atkinson

Vanderbilt Law Review

Since 2001, federal prosecutors have indicted and convicted hundreds of defendants for terrorism, espionage, and other national security crimes.' And for every prosecution, there are dozens of investigations into foreign threats that never result in a trial. Between 2001 and 2010, for example, the federal government obtained 16,306 foreign intelligence warrants in the course of its security operations. Between 2004 and 2011, the Federal Bureau of Investigations ("FBI") issued 119,192 National Security Letters for records deemed to be pertinent to national security investigations.

Despite these numbers, security investigations and prosecutions proceed on uncertain constitutional footing. The rights of terrorism suspects …