Fourth Amendment Commons^™

What Alex Kozinski And The Investigation Of Earl Bradley Teach About Searching And Seizing Computers And The Dangers Of Inevitable Discovery, Stephen E. Henderson

Faculty Articles

This paper tells two stories. One concerns the investigation of a Delaware physician named Earl B. Bradley that resulted in a conviction and sentence of fourteen consecutive life terms for the sexual abuse of children. The other concerns the computer problems, both judicial and extra-judicial, of Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. Though in a sense unrelated, they share lessons about the practicalities of computers and their search that are worth telling. As courts continue to struggle with how to cabin the searches of computers in order to minimize privacy intrusion …

Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen

Faculty Articles

A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of …

After United States V. Jones, After The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the Supreme Court unanimously rejected the proposition that the Government can surreptitiously electronically track vehicle location for an entire month without Fourth Amendment restraint. While the Court's three opinions leave much uncertain, in one perspective they fit nicely within a long string of cases in which the Court is cautiously developing new standards of Fourth Amendment protection, including a rejection of a strong third party doctrine. This Article develops that perspective and provides a cautiously optimistic view of where search and seizure protections may be headed.

More detail:

United States v. Jones, in which the …

Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the High Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult …

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 …

Preserving Privacy In A Digital Age: Lessons Of Comparative Constitutionalism, David Cole

Georgetown Law Faculty Publications and Other Works

In the modern age, we increasingly live our lives through, and accompanied by, digital media. Virtually every transaction or communication that uses such media, as well as every move of mobile phone owners, is recorded. Computers are able to store, transmit, and analyze the data as never before, drawing on multiple sources to construct an intimate picture of our interests, contacts, travels and desires. Private data-mining services, most often used for commercial advertising purposes, can determine: what we read, listen to, and look at; where we travel to, shop, and dine; and with whom we speak or associate. Meanwhile, social …

Ensuring Miranda’S Right To Counsel Abroad, David Henek '12

NYLS Law Review

No abstract provided.

Rehnquist's Fourth Amendment: Be Reasonable, Craig M. Bradley

Articles by Maurer Faculty

"The Fourth Amendment: Be Reasonable," is a chapter in a book, The Rehnquist Legacy, published by Cambridge University Press in 2006. The book is a comprehensive legal biography of the Chief Justice in which leading scholars examine his legacy in diverse areas of constitutional law, including criminal procedure. This chapter examines Rehnquist's voluminous Fourth Amendment jurisprudence. While Rehnquist has not authored any single path-breaking case in this area, the chapter shows his success, across the board, in achieving his stated goal of calling a halt to the pro-defendant rulings of the Warren Court in the criminal procedure area. However, Rehnquist …

Passing The Sniff Test: Police Dogs As Surveillance Technology, Irus Braverman

Journal Articles

In October 2012, the Supreme Court of the United States will review the case of Florida v. Jardines, which revolves around the constitutionality of police canine Franky’s sniff outside a private residence. Essentially, the Court will need to decide whether or not the sniff constitutes a “search” for Fourth Amendment purposes. This Article presents a review of the often-contradictory case law that exists on this question to suggest that underlying the various cases is the Courts’ assumption of a juxtaposed relationship between nature and technology. Where dog sniffs are perceived as a technology, the courts have been inclined to also …

Bright Lines, Black Bodies: The Florence Strip Search Case And Its Dire Repercussions, Teresa A. Miller

Journal Articles

Part I is a brief history of Search and Seizure law, focusing on seismic doctrinal shifts that occurred from the 1950s to the present. As a framework for the important cases, the Founders’ concerns about abuse of governmental authority are discussed, as well as the rights protected by the Fourth Amendment. Various governmental programs will also be presented, such as the War on Drugs and its call for a large-scale federal anti-drug policy, first initiated by President Richard Nixon in 1969. Part II is a description of the central reasoning presented in Florence v. Board of Chosen Freeholders, including the …

The Dog Days Fourth Amendment Jurisprudence, Kit Kinports

Faculty Scholarship

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 …

Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. Mckenna

Faculty Scholarship

No abstract provided.

Maryland V. King: Per Se Unreasonableness, The Golden Rule, And The Future Of Dna Databases, David H. Kaye

Faculty Scholarship

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 …

Biometric Id Cybersurveillance, Margaret Hu

Faculty Scholarship

The implementation of a universal digitalized biometric ID system risks normalizing and integrating mass cybersurveillance into the daily lives of ordinary citizens. ID documents such as driver’s licenses in some states and all U.S. passports are now implanted with radio frequency identification (RFID) technology. In recent proposals, Congress has considered implementing a digitalized biometric identification card—such as a biometric-based, “high-tech” Social Security Card—which may eventually lead to the development of a universal multimodal biometric database (e.g., the collection of the digital photos, fingerprints, iris scans, and/or DNA of all citizens and noncitizens). Such “hightech” IDs, once merged with GPS-RFID tracking …

On The 'Considered Analysis' Of Collecting Dna Before Conviction, David H. Kaye

Faculty Scholarship

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 …

Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports

Faculty Scholarship

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 …

Circuit Confusion: The Growing Divide On Whether Gant Applies To Non-Vehicular Searches Incident To Arrest, Patrick D. Messmer

Student Works

No abstract provided.

Durkheim's Internet: Social And Political Theory In Online Society, Ari Ezra Waldman

Articles & Chapters

While the Internet has changed dramatically since the early 1990s, the legal regime governing the right to privacy online and Internet speech is still steeped in a myth of the Internet user, completely hidden from others, in total control of his online experience, and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility, and radical individuation online, allowing the evisceration of online privacy and the proliferation of hate and harassment.

I argue that the myth of the online anonym is not only false as a …

In The Absence Of Scrutiny: Narratives Of Probable Cause, Mitu Gulati, Jack Knight, David F. Levi

Faculty Scholarship

This Article reports on a set of roughly thirty interviews with federal magistrate judges. The focus of the interviews was the impact of the Supreme Court case, United States v. Leon, on the behavior of magistrate judges. Leon, famously, put in place the "good faith" exception for faulty warrants that were obtained by the officers in good faith. The insertion of this exception diminished significantly the incentive for defendants to challenge problematic warrant grants. That effect, in turn, could have diminished the incentive for magistrate judge scrutiny of the warrants at the front end of the process. We do not …

The Fight To Frame Privacy, Woodrow Hartzog

Faculty Scholarship

The resolution of a debate often hinges on how the problem being debated is presented. In psychology and related disciplines, this method of issue presentation is known as framing. Framing theory holds that even small changes in the presentation of an issue or event can produce significant changes of opinion. Framing has become increasingly important in discussions about privacy and security. In his new book, "Nothing to Hide: The False Tradeoff Between Privacy and Security," Daniel Solove argues that if we continue to view privacy and security as diametrically opposed to each other, privacy will always lose. Solove argues that …