N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Fourth Amendment Page 1 of 2

The Constitutionality of Policing Technology: Evaluating Network Investigative Techniques Under Fourth Amendment Search Doctrine

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On November 15, 2022

In Contributions

by Madison Gonzalez*

Courts review the constitutionality of digital surveillance technologies in criminal investigations under Fourth Amendment search doctrine. In order to constitute a search, a law enforcement practice must either violate an individual’s reasonable expectation of privacy or constitute a physical trespass on private property. In this Contribution, Madison Gonzalez (’23) argues that the use of a Network Investigative Technique (“NIT”) to collect an Internet Protocol (“IP”) address directly from an individual’s computer is a Fourth Amendment search under either test.

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Preserving the Bivens Doctrine in the Fourth Amendment Context

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On October 4, 2022

In Contributions

by Tina LaRitz*

The Bivens doctrine allows plaintiffs who suffer constitutional violations at the hands of federal officers to claim monetary damages from federal courts, absent the statutory recognition of such a right. Recent jurisprudence has increasingly sought to limit this right in a show of judicial conservatism at the expense of deserving plaintiffs. This Contribution argues that the Bivens doctrine must be preserved broadly within the Fourth Amendment unreasonable search context.

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

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On March 28, 2022

In Contributions

by William G. Walant*

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.

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Fear of Needles or Guilty Conscience? The Fourth Amendment and the Use of BAC Test Refusal Evidence in DUI Prosecutions

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On March 2, 2021

In Contributions

by Max Baumbach*

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.

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Weighing Allegations of Terrorism & the Accused’s Criminal Record in the Probable Cause Calculous

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On March 4, 2019

In Contributions

By Daniel Kugler*

Do allegations of terrorist conduct along with the accused’s unrelated criminal records, establish probable cause under the Fourth Amendment? In this Contribution, Daniel Kugler (’19) discusses how circuits have approached this and similar questions using the Supreme Court’s totality of the circumstances framework. This Contribution argues that an ex-spouse’s allegations of terrorism—such as stockpiling weapons and posting terrorist propaganda on social media—are insufficient to establish probable cause to search for contraband when accompanied only by the accused’s unrelated criminal records.

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Cars in Castles: The Fourth Amendment’s Automobile Exception and the Curtilage of the Home

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On May 9, 2018

In Contributions

by Kristin Mulvey*

When an automobile is parked in a driveway in the curtilage of the home, does the automobile exception to the Fourth Amendment still apply? In this Contribution, Kristin Mulvey (’19) argues that the automobile exception to the Fourth Amendment should not apply when the vehicle is in the curtilage of the home. Further, this Contribution demonstrates that the underlying justifications for the automobile exception do not support a warrantless search of an automobile parked in a driveway.

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Don’t Depart From Deterrence: The Exclusionary Rule And Warrants Based On Tainted Evidence

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On December 13, 2017

In Contributions

by Savannah Ashby*

Should the Fourth Amendment exclusionary rule apply when an officer acts in good faith in the execution of a warrant based on tainted evidence? In this Contribution, Savannah Ashby (’18) discusses the differing ways in which Courts of Appeals have applied the good faith exception to the exclusionary rule in situations where the warrant is based on tainted evidence. Ultimately, this Contribution argues that the good faith exception to the exclusionary rule should not apply to evidence obtained in execution of a warrant based on tainted evidence as it more consistent with the goal of the exclusionary rule: deterring officers from committing Fourth Amendment violations.

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The Element in the Room: Requiring Probable Cause of Every Element of a Crime

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On December 6, 2017

In Contributions

by Kimberly La Fronz*

When conducting a warrantless search or seizure, must a police officer have probable cause for all elements of the crime, including mens rea? In this Contribution, Kimberly La Fronz (’18) discusses what the circuits include in their totality of the circumstances analysis to determine probable cause. This Contribution argues that in order to effect a warrantless arrest a police officer must have probable cause with respect to every element of the crime in order to effect a warrantless arrest and must not ignore exonerating evidence in their totality of the circumstances analysis.

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The Importance of Privacy in Shared Spaces

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On November 3, 2017

In Contributions

by Rachel Lerner*

Does the Fourth Amendment protect a tenant’s privacy in a shared storage unit? Can law enforcement search the whole space if her cotenant consents? In this Contribution, Rachel Lerner (’18) analyzes whether a tenant has a reasonable expectation of privacy in the space and whether it is reasonable for police to search the space upon a third-party’s consent. The Contribution argues that the Fourth Amendment protects a shared storage unit either as curtilage under Dunn or under the Katz test, and law enforcement cannot reasonably search a well-demarcated section of the unit if another cotenant consents.

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 Search, Seizure, and the Smartphone: Rethinking Privacy Protections in the Digital Age

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On April 19, 2017

In Contributions

by Christopher J. Rydberg*

In the digital age, how should privacy concerns constrain police investigations? In this Contribution, Christopher J. Rydberg considers this problem with respect to forcing suspects to unlock smartphones and specificity requirements with respect to smartphone search warrants. Ultimately, the Contribution argues that smartphones are different in kind because of the massive scope of data they contain, and thus historical doctrines of police process will have to change to accommodate the smartphone era.

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