The Fourth Amendment in the Digital Era: Applying the Private Search Doctrine to Flash Drives and Other Electronic Media Storage Devices

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.

Endangered Privilege: Does the Federal Therapist-Patient Testimonial Privilege Contain a “Dangerous Patient” Exception?

In Jaffee v. Redmond, the Supreme Court interpreted Rule 501 of the Federal Rules of Evidence to construct a federal therapist-patient testimonial privilege but declined to delineate the full contours of the privilege. In this contribution, Miriam Bial (’22) argues that the federal therapist-patient testimonial privilege does not contain a “dangerous patient” exception as such a carve out would undermine Jaffee’s underlying rationale. The Court recognized the federal therapist-patient testimonial privilege grounded in the public health benefits of encouraging candid therapy seekers as well as respect for state policymaking. Recognizing a “dangerous patient” exception conflicts with these goals without providing discernable evidentiary benefits. Though supporters of the exception have invoked a footnote within Jaffee alongside notions of breach of confidentiality and waiver, those interpretations clash with the holding’s plain language and intent.

The Right Against Self-Incrimination in the Digital Age

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.

Does the Supreme Court’s Decision in Carpenter v. United States Implicate the Government’s Use of Pole Cameras?

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.

Seizures Conducted Absent Physical Force: Momentary Compliance Versus Submission

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.

Rejecting the Split Personality Prosecutor

Can the exculpatory testimony of a witness before a grand jury be entered against the government under the “Former Testimony” exception to the ban on hearsay? Rahul Hari (’16) examines this question, presented at the 2015 National Moot Court Competition. For exculpatory testimony provided by a witness before the grand jury to be admissible at a subsequent trial in which the same witness is no longer available to testify, the proponent of that evidence must show that the prosecutor had a similar motive in developing that witness’s testimony at the grand jury stage as she would have had if the witness were now available to testify at trial. This Contribution argues that the broad interpretation of “similar motive,” as employed by a majority of the Circuit Courts of Appeals, adheres to the text of the Federal Rules of Evidence, more accurately captures the multiple motives a prosecutor might have in questioning a witness, and protects against prosecutorial abuse.