Maryland V. King: Terry V. Ohio Redux,
2013
Boston Univeristy School of Law
Maryland V. King: Terry V. Ohio Redux, Tracey Maclin
Faculty Scholarship
In Maryland v. King, the Supreme Court addressed whether forensic testing of DNA samples taken from persons arrested for violent felonies violated the Fourth Amendment. The purpose behind DNA testing laws is obvious: collecting and analyzing DNA samples advances the capacity of law enforcement to solve both "cold cases" and future crimes when the government has evidence of the perpetrator's DNA from the crime scene.
In a 5-4 decision, the Court, in an opinion by Justice Kennedy, upheld Maryland's DNA testing statute, and presumably the similar laws of twenty-seven other states and the federal government.
Although Justice Kennedy's opinion suggests …
Mary D. Branch, Plaintiff-Appellant, V. Officer Timothy Gorman, Et Al., Defandants-Appellants: Brief Of Appellant,
2012
William & Mary Law School
Mary D. Branch, Plaintiff-Appellant, V. Officer Timothy Gorman, Et Al., Defandants-Appellants: Brief Of Appellant, Patricia E. Roberts, Pamela Palmer, Alexa Roggenkamp, Tillman J. Breckenridge, Robert M. Luck Iii
Appellate and Supreme Court Clinic
No abstract provided.
Fourth Amendment Stops, Arrests And Searches In The Context Of Qualified Immunity,
2012
Touro University Jacob D. Fuchsberg Law Center
Fourth Amendment Stops, Arrests And Searches In The Context Of Qualified Immunity, Erwin Chemerinsky, Karen M. Blum
Touro Law Review
No abstract provided.
Court Of Appeals Of New York – People V. Hall,
2012
Touro University Jacob D. Fuchsberg Law Center
Court Of Appeals Of New York – People V. Hall, Christopher Shishko
Touro Law Review
No abstract provided.
The Mosaic Theory Of The Fourth Amendment,
2012
George Washington University Law School
The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr
Michigan Law Review
In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that …
What Is The Essential Fourth Amendment?,
2012
Vanderbilt University Law School
What Is The Essential Fourth Amendment?, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In More Essential Than Ever: The Fourth Amendment in the Twenty-First Century, Stephen Schulhofer provides a strong, popularized brief for interpreting the Fourth Amendment as a command that judicial review precede all non-exigent police investigative actions that are more than minimally intrusive. This review points out a few places where Schulhofer may push the envelope too far or not far enough, but concludes that More Essential Than Ever is a welcome reminder for scholars and the public at large that the Fourth Amendment is a fundamental bulwark of constitutional jurisprudence and deserves more respect than the Supreme Court has given …
Student Speech Rights In The Digital Age,
2012
Boston College Law School
Student Speech Rights In The Digital Age, Mary-Rose Papandrea
Florida Law Review
For several decades courts have struggled to determine when, if ever, public schools should have the power to restrict student expression that does not occur on school grounds during school hours. In the last several years, courts have struggled with this same question in a new context—the digital media. The dramatic increase in the number of student speech cases involving the Internet, mobile phones, and video cameras begs for a closer examination of the scope of school officials’ authority to censor the expression of minors as well as the scope of juvenile speech rights generally. This Article takes a close …
Qualified Immunity: When Is A Loss Ultimately A Win?,
2012
University of Florida Levin College of Law
Qualified Immunity: When Is A Loss Ultimately A Win?, Michael J. Hooi
Florida Law Review
No abstract provided.
Substantive Due Process Limits On Punitive Damages Awards: "Morals Without Technique"?,
2012
University of South Carolina School of Law
Substantive Due Process Limits On Punitive Damages Awards: "Morals Without Technique"?, F. Patrick Hubbard
Florida Law Review
In a series of cases decided over the last two decades, the Supreme Court has used the Due Process Clause to establish a procedural and substantive framework for awarding punitive damages. Initially, the substantive aspects of this framework were sufficiently clear and flexible that they required little change in the system and probably generated a helpful level of debate and uniformity as to some basic requirements for awards. However, in BMW of North America, Inc. v. Gore, the Court adopted an approach characterized by a lack of clarity and consistency, an inadequate basis in theory and policy, and ad …
Constitutional Limits On The Right Of Government Investigations To Interview And Examine Alleged Victims Of Child Abuse Or Neglect,
2012
William & Mary Law School
Constitutional Limits On The Right Of Government Investigations To Interview And Examine Alleged Victims Of Child Abuse Or Neglect, Teri Dobbins Baxter
William & Mary Bill of Rights Journal
Investigating allegations of child abuse or neglect presents unique challenges, particularly if parents or guardians are the alleged perpetrators. Those accused of harming the children are in a position to prevent the victims from getting access to the help they need to escape their abuser(s). The courts have not clearly defined the federal constitutional boundaries of searches and seizures in this context. The Supreme Court, in particular, has not weighed in on the constitutionality of warrantless searches and seizures in connection with abuse and neglect investigations. This lack of Supreme Court guidance has led to unpredictable and sometimes conflicting opinions …
The Real Rules Of "Search" Interpretations,
2012
William & Mary Law School
The Real Rules Of "Search" Interpretations, Luke M. Milligan
William & Mary Bill of Rights Journal
The Supreme Court tells us that a Fourth Amendment “search” is a matter of “reasonable expectations of privacy.” Scholars meanwhile debate “search” on the axes of value, doctrine, institutionalism, interpretation, and judicial politics. Yet neither prevailing judicial doctrine nor normative academic discourse has had much impact on the Court’s actual “search” interpretations. This article suggests that this static between “paper” rules and “real” rules (and, more generally, normative prescriptions and judicial decisionmaking) is a function of a deep constraint on the judiciary’s capacity to form “search” doctrine in free accordance with evolving juridical and policy norms. This constraint is one …
New Police Surveillance Technologies And The Good-Faith Exception: Warrantless Gps Tracker Evidence After United States V. Jones,
2012
University of Nevada, Las Vegas -- William S. Boyd School of Law
New Police Surveillance Technologies And The Good-Faith Exception: Warrantless Gps Tracker Evidence After United States V. Jones, Caleb Mason
Nevada Law Journal
No abstract provided.
Texting While Driving Meets The Fourth Amendment: Deterring Both Texting And Warrantless Cell Phone Searches,
2012
William & Mary Law School
Texting While Driving Meets The Fourth Amendment: Deterring Both Texting And Warrantless Cell Phone Searches, Adam M. Gershowitz
Faculty Publications
Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. …
Defining Reasonable: The Implications Of State V. Mbacke On Fourth Amendment Protections,
2012
North Carolina Central University School of Law
Defining Reasonable: The Implications Of State V. Mbacke On Fourth Amendment Protections, David B. Mckaig
North Carolina Central Law Review
No abstract provided.
Rehnquist And Panvasive Searches,
2012
Vanderbilt University Law School
Rehnquist And Panvasive Searches, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In the history of the Supreme Court, William Rehnquist may have been the least friendly justice toward the view that the Fourth Amendment should be read expansively. Even he, however, might have interpreted the amendment to place more restrictions on modern law enforcement techniques than current caselaw does. Relying on a 1974 article authored by Rehnquist, this essay, written for a symposium on Rehnquist and the Fourth Amendment, describes his views on the types of requirements the Fourth Amendment imposes on the police, how decriminalization can protect privacy, and most importantly, why Rehnquist might have been willing to regulate surveillance …
Constitutional Cacophony: Federal Circuit Splits And The Fourth Amendment,
2012
Vanderbilt University Law School
Constitutional Cacophony: Federal Circuit Splits And The Fourth Amendment, Wayne A. Logan
Vanderbilt Law Review
Despite their many differences, Americans have long been bound by a shared sense of constitutional commonality. Federal constitutional rights, however, can and do often vary based on geographic location, and a chief source of this variation stems from an unexpected origin: the nation's federal circuit courts of appeals. While a rich literature exists on federal circuit splits in general, this Article provides the first empirical study of federal constitutional law circuit splits. Focusing on Fourth Amendment doctrine in particular, the Article highlights the existence of over three dozen current circuit splits, which result in the unequal allocation of liberty and …
Looking Through The Prism Of Privacy And Trespass: Smartphones And The Fourth Amendment,
2012
University of the District of Columbia School of Law
Looking Through The Prism Of Privacy And Trespass: Smartphones And The Fourth Amendment, Saby Ghoshray
University of the District of Columbia Law Review
Technology in the twenty-first century has dramatically changed our lives, but the law has not kept pace with technological advances. The treatment of smartphones in Fourth Amendment jurisprudence is no exception. This is made evident by the increasingly scattered outcomes of litigation involving the privacy interests of smartphone owners.' As the cross-jurisdictional inconsistencies of judicial decisions applying the Fourth Amendment to smartphones mount, I am drawn to seek answers from two foundational pillars of the Supreme Court's search and seizure jurisprudence: protection against invasions of privacy and the bulwark against trespass.
Warrantless Searches And Smartphones: Privacy In The Palm Of Your Hand?,
2012
University of the District of Columbia School of Law
Warrantless Searches And Smartphones: Privacy In The Palm Of Your Hand?, Margaret M. Lawton
University of the District of Columbia Law Review
Incident to a drug arrest, a police officer removes a smartphone from the pocket of the defendant. The smartphone may have incriminating evidence-phone numbers, pictures, text messages, and e-mails. But can the officer examine the smartphone on the scene or back at the station? Or does the officer need to show probable cause and obtain a warrant before examining the phone? If the phone were instead the arrestee's wallet or a cigarette package, under the search incident to lawful arrest exception to the Fourth Amendment's warrant requirement the officer could open and search inside either of these "containers." Anything found …
A Failure Of The Fourth Amendment & Equal Protection's Promise: How The Equal Protection Clause Can Change Discriminatory Stop And Frisk Policies,
2012
Villanova University School of Law
A Failure Of The Fourth Amendment & Equal Protection's Promise: How The Equal Protection Clause Can Change Discriminatory Stop And Frisk Policies, Brando Simeo Starkey
Michigan Journal of Race and Law
Terry v. Ohio changed everything. Before Terry, Fourth Amendment law was settled. The Fourth Amendment had long required that police officers have probable cause in order to conduct Fourth Amendment invasions; to administer a "reasonable" search and seizure, the state needed probable cause. But in 1968, the Warren Court, despite its liberal reputation, lowered the standard police officers had to meet to conduct a certain type of search: the so-called "'stop' and 'frisk.'" A "stop and frisk" occurs when a police officer, believing a suspect is armed and crime is afoot, stops the suspect, conducts an interrogation, and pats him …
Eavesdropping Under New York And Federal Law: How New York Is Departing From Long-Standing Interpretations Mirroring Federal Law - People V. Rabb,
2012
Touro Law Center
Eavesdropping Under New York And Federal Law: How New York Is Departing From Long-Standing Interpretations Mirroring Federal Law - People V. Rabb, Bailey Ince
Touro Law Review
No abstract provided.
