There is currently a circuit court split as to how the private search doctrine, a judicially-created framework under the Fourth Amendment, applies in the context of electronic media storage devices, such as flash drives—either via a “narrow approach” or a “broad approach.” Without further guidance from the Supreme Court, police officers in some jurisdictions are effectively given authority to end-run around the Fourth Amendment. In this Contribution, William Walant (‘22) argues that the Supreme Court should adopt the “narrow approach,” which focuses on the unique nature of digital media devices. This focus is embraced in Riley v. California and is consistent with the private search doctrine’s underlying principles. However, unlike as has been suggested by some recent scholarship, the private search doctrine need not be altered to fit electronic media storage devices, and the narrow approach does not create insurmountable and undesirable consequences. Instead, by adopting a narrow approach, the private search doctrine can be preserved while reaching a positive outcome for society: an officer, absent exigent circumstances or other exceptions, will be incentivized to obtain a warrant to examine the contents of an electronic device handed over by a private party.
Law enforcement agencies are increasingly seeking to compel the disclosure of passwords from the owners of password-protected encrypted devices, such as cell phones. Does the government have the right to compel this disclosure? In this Contribution, Diego Wright (‘22) argues that the Fifth Amendment right against self-incrimination protects an individual from being forced to disclose their passcode when analyzed under the “foregone conclusion” doctrine unless the government can demonstrate they already know the testimonial communications tacit in the act of providing the passcode.
Crimmigration is the intersection of immigration law and criminal law. At this intersection, officials are widening the net of deportable offenses at an alarming rate to make immigrants more susceptible to removal. The “crime involving moral turpitude” provision of the Immigration and Nationality Act has been one means by which officials have arbitrarily expanded the reasons why a person may be deported out of the United States. But is the moral turpitude provision in 8 U.S.C. § 1227(a)(2)(A)(i) of the Immigration and Nationality Act—used to justify deporting “criminal aliens,” including lawful permanent residents—void for vagueness pursuant to the Fifth Amendment? In this Contribution, Kameron Johnston (’21) argues that the recent Supreme Court decisions Johnson v. United States and Sessions v. Dimaya require that the exacting vagueness test used in criminal contexts be applied to immigration law as well. Finally, this Contribution demonstrates that the moral turpitude provision has provoked unpredictability and judicial confusion that simply cannot be reconciled with the fair notice and enforcement standards that due process demands.
When a motorist is arrested on suspicion of intoxicated driving, the government cannot compel him to submit to a blood draw without a warrant or warrant exception, nor can it make his refusal to submit to a blood draw a crime. But can the government use the refusal as evidence of guilt in a subsequent DUI prosecution on the basis of an implied consent statute? In this Contribution, Max Baumbach (’21) argues that the Fourth Amendment prohibits the use of blood test refusal evidence in a DUI prosecution where the test itself would have been unlawful to conduct in the first instance.
Does the Supreme Court’s decision in Carpenter v. United States constrain the government’s warrantless use of pole cameras to surveil people it suspects are engaging in criminal activity? In this contribution, Jack Derewicz (’21) argues that the Carpenter opinion does not implicate this particular investigatory technique because pole cameras do not retroactively collect the type of information that, when aggregated, present the government with information it could not have otherwise obtained.
This Contribution examines whether police have effectuated a Fourth Amendment seizure by show of authority when an individual flees from a momentary encounter. Dean S. Acheson (’21) argues that, under Fourth Amendment precedent, pre-flight compliance does not constitute submission to a show of authority in a police interaction that consists of answering brief questions and engaging in evasive behavior.
Should the qualified immunity doctrine be revisited to better allow civilians to sue government officials for violations of fundamental rights? In this Contribution, Victoria del Rio-Guarner (’18) discusses how the Supreme Court’s decisions in Harlow v. Fitzgerald and Pearson v. Callahan essentially rendered qualified immunity to Section 1983 claims unqualified. This Contribution argues that qualified immunity doctrine should be recalibrated in order to better fulfill its underlying purpose while not disabling Section 1983 claims.
Can an employee who has accessed computer database information in violation of use restrictions and direct instructions from his employer be convicted under the Computer Fraud and Abuse Act for accessing data “without authorization” or “exceed[ing] authorized access”? Susanna Griffith (’17) reflects on this question, based on her experience at the 2016 Spong Moot Court Tournament, hosted by William & Mary Law School. Her Contribution discusses the legal landscape and circuit split regarding the applicability of the statute to employees who have violated use restrictions and directives from employers. The Contribution argues that the narrow, code-based view is preferable as the clearly constitutional reading that also comports with standards of excellence in the field of cyber-security.