Exploring New Approaches to Unsettled Legal Questions

Tag: Fourth Amendment Page 1 of 2

An Exception that Swallows the Rule: Limiting the Automobile Exception to Prohibit Warrantless Searches of Electronic Data in Cars

by Lucy Sundelson*

The Supreme Court has long held that under the Fourth Amendment to the Constitution, “warrantless searches are per se unreasonable,” except in a few limited circumstances.1 One exception to the rule is the automobile exception, which allows police to conduct a warrantless search of a vehicle and its contents with probable cause. Over time, the automobile exception has expanded beyond its original purpose, allowing police to search cars and their contents indiscriminately, and its modern application threatens to swallow the warrant requirement altogether. Computer technology offers an opportunity for courts to limit the breadth of the automobile exception and ensure it remains faithful to the purpose of the Fourth Amendment: given the profoundly private information computers and cell phones store, courts must hold that the exception does not extend to such devices. While the Court has not ruled directly on this issue, two recent decisions dealing with other exceptions to the warrant requirement make clear that the Justices agree electronic data must be handled differently than other belongings in the Fourth Amendment context. Courts should use these decisions to prohibit the warrantless search of cell phones and other similar electronic devices, even when they are found within cars.

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

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.

Preserving the Bivens Doctrine in the Fourth Amendment Context

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.

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

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.

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

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.

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

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.

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

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.

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

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.

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

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.

The Importance of Privacy in Shared Spaces

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.

Page 1 of 2

Powered by WordPress & Theme by Anders Norén