Disentangling Administrative Searches,
2011
University of Michigan Law School
Disentangling Administrative Searches, Eve Brensike Primus
Articles
Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …
Cloudy Privacy Protections: Why The Stored Communications Act Fails To Protect The Privacy Of Communications Stored In The Cloud,
2011
Vanderbilt University Law School
Cloudy Privacy Protections: Why The Stored Communications Act Fails To Protect The Privacy Of Communications Stored In The Cloud, Ilana R. Kattan
Vanderbilt Journal of Entertainment & Technology Law
The advent of new communications technologies has generated debate over the applicability of the Fourth Amendment's warrant requirement to communications sent through, and stored in, technologies not anticipated by the Framers. In 1986, Congress responded to perceived gaps in the protections of the warrant requirement as applied to newer technologies, such as email, by passing the Stored Communications Act (SCA). As originally enacted, the SCA attempted to balance the interests of law enforcement against individual privacy rights by dictating the mechanisms by which the government could compel a particular service provider to disclose communications stored on behalf of its customers. …
Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day,
2011
University of Michigan Law School
Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran
Articles
Back when there was a Soviet Union, foreign intelligence officers would anxiously await the May Day parade in Moscow to see who would be standing next to the chairman of the Communist Party and who would be missing from the reviewing platform altogether. Since the Soviet government and the statecontrolled press published very little about what was really going on in the halls of state power, this was considered the most reliable way to determine who was in or out of favor and, by extension, how the domestic and foreign policies of the world's second most powerful country were likely …
Randomization And The Fourth Amendment,
2011
Columbia Law School
Randomization And The Fourth Amendment, Bernard Harcourt, Tracey L. Meares
Faculty Scholarship
Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists checkpoint searches violate the central requirement of valid Fourth Amendment searches – namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized" suspicion is misleading; most suspicion in the modem policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on …
The Need To Overrule Mapp V. Ohio,
2011
University of Colorado Law School
The Need To Overrule Mapp V. Ohio, William T. Pizzi
University of Colorado Law Review
This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious level, …
Unraveling The Exclusionary Rule: From Leon To Herring To Robinson - And Back?,
2011
Penn State Law
Unraveling The Exclusionary Rule: From Leon To Herring To Robinson - And Back?, David H. Kaye
Faculty Scholarship
The Fourth Amendment exclusionary rule began to unravel in United States v. Leon. The facts were compelling. Why exclude reliable physical evidence from trial when it was not the constable who blundered, but “a detached and neutral magistrate” who misjudged whether probable cause was present and issued a search warrant? Later cases applied the exception for “good faith” mistakes to a police officer who, pursuing a grudge against a suspect, arrested and searched him and his truck on the basis of a false and negligent report from a clerk in another county of an outstanding arrest warrant. The California Supreme …
Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller,
2011
Penn State Law
Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David H. Kaye
Faculty Scholarship
As a general matter, once the government acquires information from a permissible search or seizure, it can use this information in later criminal investigations. Courts have applied this simple rule to uphold the indefinite reuse of DNA samples acquired from convicted offenders. This essay describes the First Circuit Court of Appeals’ reliance on the rule in rejecting a convicted offender’s claim that his DNA sample and profile had to be removed from the federal DNA databank after he completed his sentence. Acknowledging that the rule permitting reuse should not be applied mechanically, I argue that the rule's application to DNA …
Notes On Borrowing And Convergence,
2011
American University Washington College of Law
Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe
Scholarly Articles in Law Reviews & Journals
his 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.
Crime Mapping And The Fourth Amendment: Redrawing 'High Crime Areas',
2011
American University Washington College of Law
Crime Mapping And The Fourth Amendment: Redrawing 'High Crime Areas', Andrew Ferguson
Scholarly Articles in Law Reviews & Journals
This article addresses how “crime mapping” technology has the potential to reshape Fourth Amendment protections in designated “high crime areas.” In the past few years, the ability of police administrators to identify and officially label “high crime areas” has rapidly expanded. Geographic Information Systems (GIS) and crime mapping technology has simplified the collection and analysis of crime statistics. These GIS crime mapping technologies can produce almost perfect information about the level, rate, and geographic location of crimes in any given area.While effective policing tools, these technologies have constitutional consequences that are only now being considered. Under existing Supreme Court precedent, …
Some Hypotheses About Empirical Desert,
2011
Vanderbilt University Law School
Some Hypotheses About Empirical Desert, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Paul Robinson has written a series of articles advocating the view that empirical desert should govern development of criminal law doctrine. The central contention of empirical desert is that adherence to societal views of justice“ defined in terms of moral blameworthiness will not only satisfy retributive urges, but will also often be as efficacious at controlling crime as a system that revolves around other utilitarian purposes of punishment. Constructing criminal laws that implement empirical desert has the latter effect, Robinson argues, because it enhances the moral credibility of the law, thus minimizing citizens desire to engage in vigilantism and other …
Along For The Ride: Gps And The Fourth Amendment,
2011
Vanderbilt University Law School
Along For The Ride: Gps And The Fourth Amendment, Stephen A. Josey
Vanderbilt Journal of Entertainment & Technology Law
With the advent of new technologies, the line as to where the Fourth Amendment forbids certain police behavior and when it does not has become increasingly blurred. Recently, the issue of whether police may use Global Positioning System (GPS) tracking devices to track individuals for prolonged periods of time without first securing a search warrant has crept its way into the limelight. The various circuits have arrived at different conclusions, and the question has now found its way onto the US Supreme Court's docket. After analyzing and weighing both Supreme Court case law and public policy considerations, this Note concludes …
The Need To Overrule Mapp V. Ohio,
2011
University of Colorado Law School
The Need To Overrule Mapp V. Ohio, William T. Pizzi
Publications
This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious …
Faulty Foundations: How The False Analogy To Routine Fingerprinting Undermines The Argument For Arrestee Dna Sampling,
2010
William & Mary Law School
Faulty Foundations: How The False Analogy To Routine Fingerprinting Undermines The Argument For Arrestee Dna Sampling, Corey Preston
William & Mary Bill of Rights Journal
No abstract provided.
Privacy Implications Of Smart Meters,
2010
Chicago-Kent College of Law
Privacy Implications Of Smart Meters, Cheryl Dancey Balough
Chicago-Kent Law Review
Many people worry about the erosion of privacy in our society given developments in technology, but that loss of privacy may take a quantum leap as electric "smart meters" make it possible for strangers to know on a real-time basis what is occurring in our houses and apartments. Perhaps the greatest concern is that current laws and regulations do not fully protect us from this unprecedented threat to two of our most basic rights—to be left alone in our own homes and to control personal information. Utility companies across the country are replacing conventional electric meters with smart meters designed …
The Faces Of Student Cell Phone Regulations And The Implications Of Three Clauses Of The Federal Constitution,
2010
Montclair State University
The Faces Of Student Cell Phone Regulations And The Implications Of Three Clauses Of The Federal Constitution, Joseph O. Oluwole, William Visotsky
Cardozo Public Law, Policy & Ethics Journal
The article examines the constitutionality of school district regulations on student cell phones, focusing on the Due Process Clause, the Free Speech Clause, and the Fourth Amendment. It argues that while schools have the authority to regulate cell phones to maintain an educational environment, such regulations must comply with legal standards to avoid infringing on students' rights. The analysis concludes that schools can enforce cell phone policies but must adhere to constitutional protections, particularly the Tinker test for speech and the T.L.O. test for searches.
Government Dragnets,
2010
Vanderbilt University Law School
Government Dragnets, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This article examines group-focused police investigation techniques - for instance, roadblocks, drug testing programs, area or industry-wide health and safety inspections, data mining, and camera surveillance - a phenomenon referred to as "government dragnets" because these general searches and seizures attempt to cull out bad actors through ensnaring a much larger number of individuals who are innocent of any wrongdoing. The courts have imposed few limitations on dragnets. Recent commentary has either advocated an even more laissez-faire attitude toward these group search and seizures or, at the other end of the spectrum, proposed schemes that would make most of them …
Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms,
2010
Cornell Law School
Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb
Cornell Law Faculty Publications
No abstract provided.
The Inviolate Home: Housing Exceptionalism In The Fourth Amendment,
2010
IIT Chicago-Kent College of Law
The Inviolate Home: Housing Exceptionalism In The Fourth Amendment, Stephanie M. Stern
All Faculty Scholarship
The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions. The focus on protection of the physical home has decreased doctrinal efficiency and coherence and derailed Fourth Amendment residential privacy from the core principle of intimate association. This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces …
The Anatomy Of A Search: Intrusiveness And The Fourth Amendment,
2010
University of the District of Columbia
The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renee Mcdonald Hutchins
Journal Articles
For more than two months beginning in late December of 2005, police officers in New York State continuously monitored the location and movements of Scott Weaver's van using a surreptitiously attached global positioning system ("GPS") device, known as a "Qball."' The reason Weaver was targeted for police surveillance has never been disclosed. 2 In addition, law enforcement made no attempt to justify the heightened scrutiny of Weaver by seeking the pre-authorization of a warrant from a neutral magistrate.3 Rather, for sixty-five days, the police subjected Weaver to intense surveillance without oversight, interruption, or explanation. 4 More than a year after …
Bombed Away: How The Second Circuit Destroyed Fourth Amendment Rights Of U.S. Citizens Abroad,
2010
Brigham Young University Law School
Bombed Away: How The Second Circuit Destroyed Fourth Amendment Rights Of U.S. Citizens Abroad, Carla Crandall
BYU Law Review
No abstract provided.
