Fourth Amendment Commons^™

A Mosaic Shield: Maynard, The Fourth Amendment, And Privacy Rights In The Digital Age, Erin Smith Dennis

Cardozo Law Review

No abstract provided.

Can A Password Stop Police From Searching Your Cell Phone Incident To Arrest?, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Crime-Severity Distinctions And The Fourth Amendment: Reassessing Reasonableness In A Changing World, Jeffrey Bellin

Faculty Publications

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine—crime severity.

The Supreme Court emphasizes that “reasonableness” is the “touchstone” of Fourth Amendment analysis. Yet, in evaluating contested searches and seizures, current Fourth Amendment doctrine ignores a key determinant of reasonableness, the crime under investigation. As a result, an invasive search of a suspected murderer …

Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe

Cornell Law Faculty Publications

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe

Faculty Scholarship

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Following You Here, There, And Everytwhere: An Investigation Of Gps Technology, Privacy, And The Fourth Amendment, Stephanie Gaylord Forbes

W&M Law Student Publications

No abstract provided.

The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin Henning

William & Mary Law Review

Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles—context, parental authority, and the minor’s capacity—that weave together children’s rights cases. She argues that parental authority too often prevails over children’srights, even when context and demonstrated capacity would supportaffirmation of those rights. Context involves both the physical settingin which Fourth Amendment protections are sought and the nature of the privacy interest at …

Section 1: Moot Court: United States V. Jones, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

A Brave New World Of Stop And Frisk, Ron Bacigal

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Hiding In Plain Sight: Protection From Gps Technology Requires Congressional Action, Not A Stretch Of The Fourth Amendment, Kimberly C. Smith

Mercer Law Review

In the fall of 2010, a college student in Santa Clara, California, found a peculiar object on the underside of his vehicle after a trip to the mechanic. The student's friend posted an online picture of the strange device asking for suggestions about its source and "if it mean[t] the [Federal Bureau of Investigation] 'is after us.'" As it turns out, the Federal Bureau of Investigation (FBI) was secretly tracking the twenty-year- old Arab-American using a Global Positioning System (GPS) affixed to the underside of his vehicle. The FBI located the student two days after the posting and demanded the …

Framing The Fourth, Tracey Maclin, Julia Mirabella

Michigan Law Review

Our knowledge of the Fourth Amendment's history was fundamentally transformed when William Cuddihy completed his Ph.D. dissertation in 1990. Cuddihy's study was the most comprehensive and detailed examination of the history of search and seizure law and essential reading for anyone interested in the amendment's history. At first, Cuddihy's work was little known: only a few people noticed when the highly regarded constitutional historian Leonard W. Levy stated that "Cuddihy is the best authority on the origins of the Fourth Amendment." Cuddihy finished his dissertation in 1990 and it remained unedited, unpublished, and largely unknown for several years-until Justice O'Connor …

Framing The Fourth, Tracey Maclin, Julia Mirabella

Faculty Scholarship

History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.

Cuddihy’s historical analysis is unprecedented. As Justice O’Connor has described it, Cuddihy’s work is “one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken.” Cuddihy reviewed thousands …

Big Brother Is Watching: The Reality Show You Didn't Audition For, J. Amy Dillard

All Faculty Scholarship

In 1984, at the height of the Reagan-era war on drugs, the Supreme Court created a bright-line exception to Fourth Amendment protection by declaring that no person had a reasonable expectation of privacy in an area defined as an open field. When it created the exception, the Court ignored positive law and its own jurisprudence that the Fourth Amendment protects people, not places. The open fields doctrine allows law enforcement officers to enter posted, private areas that are not part of a house or its curtilage for brief surveillance. The Supreme Court has never “extended the open fields doctrine to …

New Jersey V. T.L.O.: School Searches And The Applicability Of The Exclusionary Rule In Juvenile Delinquency And Criminal Proceedings, Bryan Stoddard

Brigham Young University Education and Law Journal

No abstract provided.

Stripped Of Meaning: The Supreme Court And The Government As Educator, Justin R. Chapa

Brigham Young University Education and Law Journal

No abstract provided.

How United States V. Jones Can Restore Our Faith In The Fourth Amendment, Erica Goldberg

Michigan Law Review First Impressions

United States v. Jones, issued in January of this year, is a landmark case that has the potential to restore a property-based interpretation of the Fourth Amendment to prominence. In 1967, the Supreme Court abandoned its previous Fourth Amendment framework, which had viewed the prohibition on unreasonable searches in light of property and trespass laws, and replaced it with a rule protecting the public’s reasonable expectations of privacy. Although the Court may have intended this reasonable expectations test to provide more protection than a test rooted in property law, the new test in fact made the Justices’ subjective views about …

Is Big Brother Watching You? United States V. Pineda-Moreno And The Ninth Circuit’S Dismantling Of The Fourth Amendment’S Protections, Phillip R. Sumpter

BYU Law Review

No abstract provided.

Tase Me One More Time: An Analysis Of The Ninth Circuit’S Interpretation Of The Fourth Amendment, Qualified Immunity, And Tasers In Brooks V. City Of Seattle, Joseph G. Walker

BYU Law Review

No abstract provided.

Pledge Your Body For Your Bread: Welfare, Drug Testing, And The Inferior Fourth Amendment, Jordan C. Budd

Law Faculty Scholarship

Proposals to subject welfare recipients to periodic drug testing have emerged over the last three years as a significant legislative trend across the United States. Since 2007, over half of the states have considered bills requiring aid recipients to submit to invasive extraction procedures as an ongoing condition of public assistance. The vast majority of the legislation imposes testing without regard to suspected drug use, reflecting the implicit assumption that the poor are inherently predisposed to culpable conduct and thus may be subject to class-based intrusions that would be inarguably impermissible if inflicted on the less destitute. These proposals are …

Rethinking The Fourth Amendment: Race, Citizenship, And The Equality Principle, Bennett Capers

Faculty Scholarship

No abstract provided.