Fourth Amendment Commons^™

Signal Lost: Is A Gps Tracking System The Same As An Eyeball?, Eric Andrew Felleman

University of Michigan Journal of Law Reform Caveat

On November 8th, the Supreme Court will hear arguments in United States v. Jones. One of the primary issues in the case is whether law enforcement personnel violated Mr. Jones' Fourth Amendment right to freedom from unreasonable searches and seizures by using a GPS tracking device to monitor the location of his car without a warrant. The 7th Circuit and the 9th Circuit have both recently held that use of GPS tracking is not a search under the Fourth Amendment.

Warrantless Cell Phone Searches And The 4th Amendment: You Think You Deleted Those Text Messages…But You Have No Idea…, Amanda Brill

Student Works

No abstract provided.

Gps Tracking And The Fourth Amendment: The New Frontier In Counterterrorism Efforts, German Rozencranc

Student Works

No abstract provided.

No More Chipping Away: The Roberts Court Uses An Axe To Take Out The Fourth Amendment Exclusionary Rule, Tracey Maclin, Jennifer Rader

UF Law Faculty Publications

This article considers the current status of the Fourth Amendment exclusionary rule under the Roberts Court, as well as what the future holds for the rule. Despite Justice Kennedy’s 2006 declaration that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt,” this Article demonstrates why this is not the case. Kennedy’s statement is noteworthy and has been accorded substantial weight primarily because it was made at a time when it was thought that four Justices (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) were prepared to announce the demise of …

Expectations Of Privacy In Social Media, Stephen E. Henderson

Faculty Articles

This article, which largely tracks my remarks at Mississippi College’s Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy …

A Unified Theory For Seizures Of The Person, Ronald J. Bacigal

Law Faculty Publications

Perhaps there is something about the final stages of their careers that causes people to resolve conflicts by reconciling the seemingly irreconcilable. Albert Einstein spent the last days of his career searching for a unified field theory that would eliminate the contradictory laws governing relativity and quantum mechanics. Stephen Hawking has taken up this quest which has been renamed a search for the Theory of Everything. On a “slightly” more modest level, I find the later stages of my career drawing me toward formulating a unified theory governing seizures of the person. The challenge is to blend three different tests …

Bringing Clarity To Administrative Search Doctrine: Distinguishing Dragnets From Special Subpopulation Searches, Eve Brensike Primus

Articles

Anyone who has been stopped at a sobriety checkpoint, screened at an international border, scanned by a metal detector at an airport or government building, or drug tested for public employment has been subjected to an administrative search or seizure. Searches of public school students, government employees, and probationers are characterized as administrative, as are business inspections and-increasingly-wiretaps and other searches used in the gathering of national security intelligence. In other words, the government conducts thousands of administrative searches every day. None of these searches requires either probable cause or a search warrant. Instead, courts evaluating administrative searches need only …

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

Articles

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4

Sacrificing Liberty For Security: North Carolina's Unconstitutional Search And Seizure Of Arrestee Dna, Michael J. Crook

Campbell Law Review

This Comment examines the constitutionality of North Carolina’s DNA Database Act of 2010. The Act is a newly passed expansion of the existing state DNA database, and this Comment argues that North Carolina’s expansion authorizes a constitutionally impermissible, mandatory, suspicionless, and warrantless search and seizure of DNA and the information contained therein. With warrantless searches, the default rule is that they are “per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well-delineated exceptions.” The Act should not survive Fourth Amendment scrutiny because it does not qualify as a well-delineated exception to the warrant requirement: …

Advisory Adjudication, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring …

Getting Back To The Fourth Amendment: Warrantless Cell Phone Searches, Mireille Dee

NYLS Law Review

No abstract provided.

Growing Up Policed In The Age Of Aggressive Policing Policies, Brett G. Stoudt, Michelle Fine, Madeline Fox

NYLS Law Review

No abstract provided.

Due Process In American Military Tribunals After September 11, 2001, Gary Shaw

Touro Law Review

The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"

Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports

Faculty Scholarship

Although few noticed the link between them, two Supreme Court cases decided in the same week last Term, Ashcroft v. al-Kidd and Camreta v. Greene, both involved the Fourth Amendment implications of detaining witnesses to a crime. Al-Kidd, an American citizen, was arrested under the federal material witness statute in connection with an investigation into terrorist activities, and Greene, a nine-year-old suspected victim of child abuse, was seized and interrogated at school by two state officials. The opinions issued in the two cases did little to resolve the constitutional issues that arise in witness detention cases, and in fact …

No More Chipping Away: The Roberts Court Uses An Axe To Take Out The Fourth Amendment Exclusionary Rule, Tracey Maclin, Jennifer Marie Rader

Faculty Scholarship

This article considers the current status of the Fourth Amendment exclusionary rule under the Roberts Court, as well as what the future holds for the rule. Despite Justice Kennedy’s 2006 declaration that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt,” this Article demonstrates why this is not the case. Kennedy’s statement is noteworthy and has been accorded substantial weight primarily because it was made at a time when it was thought that four Justices (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) were prepared to announce the demise of …

Beyond Law Enforcement: Camreta V. Greene, Child Protection Investigations, And The Need To Reform The Fourth Amendment Special Needs Doctrine, Joshua Gupta-Kagan

Faculty Scholarship

The Fourth Amendment “special needs” doctrine distinguishes between searches and seizures that serve the “normal need for law enforcement” and those that serve some other special need, excusing non-law-enforcement searches and seizures from the warrant and probable cause requirements. The United States Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not around those that threaten important noncriminal constitutional rights.

Child protection investigations illustrate the problem: millions of times each year, state child protection authorities search families' homes and seize children for interviews about alleged maltreatment. Only a minority of these investigations …

Predictive Policing And Reasonable Suspicion, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

Predictive policing is a new law enforcement strategy to reduce crime by predicting criminal activity before it happens. Using sophisticated computer algorithms to forecast future events from past crime patterns, predictive policing has become the centerpiece of a new smart-policing strategy in several major cities. The initial results have been strikingly successful in reducing crime.This article addresses the Fourth Amendment consequences of this police innovation, analyzing the effect of predictive policing on the concept of reasonable suspicion. This article examines predictive policing in the context of the larger constitutional framework of “prediction” and the Fourth Amendment. Many aspects of current …

Technological Leap, Statutory Gap, And Constitutional Abyss: Remote Biometric Identification Comes Of Age, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much less the pairing of facial recognition with video surveillance—in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, …

Searching Secrets, Nita A. Farahany

Faculty Scholarship

A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated …

Virtual Blinds: Finding Online Privacy In Offline Precedents, Allyson W. Haynes

Vanderbilt Journal of Entertainment & Technology Law

A person in a building shows a desire for privacy by pulling her blinds shut or closing her curtains. Otherwise, she cannot complain when her neighbor sees her undressing from the window, or when a policeman looks up from the street and sees her marijuana plants. In the online context, can we find an analogy to these privacy blinds? Or is the window legally bare because of the nature of the Internet?

This Article argues that by analyzing the privacy given to communications in the offline context, and in particular, by analyzing case law recognizing privacy in an otherwise public …