4th Amendment Thread

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License, Registration, Cheek Swab: DNA Testing and the Divided Court

Comment by ERIN MURPHY, 127 Harv. L. Rev. 161 (Nov. 2013)

Midway through the oral argument in Maryland v. King, Justice Alito spontaneously interjected: “y the way, I think this is perhaps the most important criminal procedure case that this Court has heard in decades.” The juxtaposition between the breeziness of his comment and the solemnity of its content befit the case, which is best characterized as a sleeper in a Term overshadowed by monumental rulings on gay marriage, voting rights, and affirmative action. What looked on its face like just another Fourth Amendment dispute — with civil libertarians on one side and law enforcement on the other — garnered no special attention. But King is no ordinary Fourth Amendment case.

At first glance, King simply upheld the Fourth Amendment constitutionality of a state statute authorizing the collection of DNA from arrestees. But the opinion in the case represents a watershed moment in the evolution of Fourth Amendment doctrine and an important signal for the future of biotechnologies and policing. This Comment places King into context from three different vantage points, each one step removed. Specifically, the three Parts below address the significance of the opinion: for DNA collection from arrestees, for forensic DNA practices more generally, and for the Fourth Amendment.

Part I briefly summarizes the opinions in the case and may be skipped by those familiar with them. Part II reads between the lines of the majority opinion, in light of the greater constellation of facts and claims placed before the Court, to underscore the significance of what was not said about the constitutionality of arrestee DNA collection. Part III considers King as it exemplifies the judicial response to forensic DNA typing more generally, and imagines its precedential value in future biometric cases. Part IV situates King in the broader landscape of the Court’s recent Fourth Amendment jurisprudence and analyzes its insights for the evolution of the field as a whole.

Full Article: http://www.harvardlawreview.org/media/p ... murphy.pdf

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The Right to Quantitative Privacy

by David Gray and Danielle Citron, 98 Minn. L. Rev. 62 (Nov. 2013)

We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of information about their public or shared activities, even if they lack a reasonable expectation of privacy in the constitutive particulars. This quantitative approach to the Fourth Amendment has since been the subject of hot debate on and off the courts. Among the most compelling challenges are questions about quantitative privacy’s constitutional pedigree, how it can be implemented in practice, and its doctrinal consequences. This Article takes up these challenges.

The conversation after Jones has been dominated by proposals that seek to assess and protect quantitative privacy by focusing on the informational “mosaics” assembled by law enforcement officers in the course of their investigations. We think that this case-by-case approach both misunderstands the Fourth Amendment issues at stake and begets serious practical challenges. Drawing on lessons from information privacy law, we propose as an alternative that legislatures and courts acting in the shadow of Jones focus on the technologies. Under this technology-centered approach, any technology that is capable of facilitating programs of broad and indiscriminate surveillance would be subject to Fourth Amendment regulation. This does not mean that government would be barred from using these technologies. Rather, it would require that the terms of their deployment and use reflect a reasonable balance between privacy concerns and law enforcement’s interests in preventing, detecting, and prosecuting crime. This Article offers concrete proposals for how legislatures and courts might strike this balance while providing the clear guidance and predictability that critics of the mosaic theory rightly demand.

Full Article: http://www.minnesotalawreview.org/wp-co ... on_MLR.pdf

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Drugs, Bombs, and the Erosion of Rights

Mark Osler - 11 Ohio St. J. Crim. L. 249 (Fall 2013)

David K. Shipler, The Rights Of The People: How Our Search For Safety Invades Our Liberties (New York: Vintage Books 2012)

I. INTRODUCTION

In the days and months after the terrorist attack on the World Trade Center and the Pentagon on September 11, 2001, Americans faced a fundamental quandary: were we willing to give away some of our rights, particularly our privacy rights, for greater security? The struggle with this question continues, as voters and politicians ponder the trade-offs between preventing another attack and our right to be left alone. Less often discussed is a more deeply buried, older, and distinct problem: the erosion of Fourth Amendment rights as collateral damage in the war on drugs.

David K. Shipler plunges self-consciously into this confused realm in The Rights of the People. He winningly combines a reporter’s straightforward writing and street sense with a lawyer’s fascination with process and rights, though his own background is as a journalist, not an attorney. At its best, this book describes the decay of privacy rights at the ground level by laying out the creepy story of a family under surveillance who keeps finding its home violated or describing the work of a D.C. police crew working the streets of Washington looking for guns. Admirably, Shipler avoids extensive legal analysis except where the law has produced an effect on the street.

Full Review Article: http://moritzlaw.osu.edu/students/group ... -Osler.pdf

Link to Shipler's book: http://www.amazon.com/The-Rights-People ... the+People

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A Modest Defense of Mind Reading

Kiel Brennan-Marquez - 15 YALE J.L. & TECH. 214 (2013)

ABSTRACT

The last decade has witnessed a profusion of commentary on “mind-reading” devices. Instead of offering traditional legal arguments against such devices, most scholars have simply assumed their use to be unconstitutional. The consensus is clear: by essentially “speaking for” defendants, mind-reading devices offend the basic spirit of the Self-Incrimination Clause. In this Article, I defend the constitutionality of mind-reading on both doctrinal and normative grounds. First, I reconstruct the Court’s self-incrimination jurisprudence to demonstrate that evidence is only “testimonial” — and thus, privileged — if it involves a “communicative act” from the suspect. Whether or not particular types of mind-reading devices would elicit “communicative acts” is a narrow, technology-specific question. And at least some mind-reading devices almost certainly would not – making their use permissible under the Fifth Amendment. Second, I defend this doctrinal result against normative attack. Many different accounts of the privilege’s theoretical underpinnings exist. I evaluate these accounts in turn, arguing that some are inapposite to mind reading, while others fail in a deeper sense.

Full article: http://yjolt.org/modest-defense-mind-reading

Must be angling for a DOJ job.

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Pretext Searches and Seizures: in Search of Solid Ground

Jeff D. May, Rob Duke and Sean Gueco, 30 Alaska L. Rev. 151 (Dec. 2013)

Despite numerous attempts to subject the use of pretext law enforcement stops to Alaska Constitutional scrutiny, the issue has never been thoroughly reviewed. Alaska courts currently allow pretext investigative stops so long as a reasonable officer following permissible police practices could have made the stop for the proffered reason. This is a minority position, inconsistent with federal law which deems pretext motivations constitutionally irrelevant. It is also far less protective of individual rights than an outright ban on officer pretext. This reasonable officer standard, however, offers some advantages over banning all types of pretext. This Article explores Alaska’s historical treatment of pretext justifications, discusses why pretext is prominent in police work, documents some of the leading arguments against pretext, and frames the issue in light of an opportunity to balance competing policy concerns. After considering precedent, reason, and policy, the authors urge the Court of Appeals to continue use of the reasonable officer standard, because it strikes the best balance between governmental, societal, and individual concerns. Nevertheless, the Article argues that the standard should be refined and suggests a workable test for determining when pretext stops are outside acceptable police practices.

Full Article: http://scholarship.law.duke.edu/cgi/vie ... ontext=alr

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The Rise of a New Type of Surveillance for Which the Law Wasn’t Ready

Kirill Levashov

15 Columb. Sci. & Tech. L. Rev. 164 (2013)

Abstract

This article discusses the rising use of facial recognition technology in society and in law enforcement, and its legal implications. Section I describes the technology and how it works. While the potential uses for this technology are too numerous to list, this section goes on to describe the most widespread and troubling current uses, as well as some of the planned uses that illustrate the scope that the technology has the potential to achieve, and why that could be a problem. Section II discusses some of the more prevalent legal concerns that accompany the rise of this technology, such as privacy violations, chilling of free speech, and stalking. Section III analyzes the existing state of the law, and suggests some channels that may offer protection from the concerns raised in section II, while noting that these channels were not designed with facial recognition technology in mind so the protections offered may be weakened or, depending on the leanings of a court of law, nonexistent. The article closes by suggesting additional statutory protections that could be enacted to more completely address the issue, either piecemeal or as part of a larger regulatory scheme.

Full Article: http://www.stlr.org/html/volume15/Levashov.pdf

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“Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices

Sid Nadkarni

61 UCLA L. Rev. 148

Abstract

The Fourth Amendment’s border search doctrine has historically given the U.S. government the right to search, without individualized suspicion, the belongings of any individual crossing the U.S.border. Courts have traditionally justified this power by citing the government’s paramount interest in preventing the smuggling of dutiable goods and contraband such as illegal drugs. In the twenty-first century, the government has controversially used this power to search and detain travelers’ portable electronic devices, such as laptop computers, without suspicion to inspect for the transport of prohibited materials like child pornography, terrorist communications, and pirated software.

In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal circuit court to rule that a particular border search of an electronic device had to be preceded by a finding of reasonable suspicion that the individual had committed a crime. Nonetheless, divergent rulings from the Fourth Circuit and a Massachusetts federal district court leave the future of digital border searches shrouded in legal uncertainty. Furthermore, the Department of Homeland Security’s recent reaffirmation of its view that no suspicion at all is required for such searches puts the government on a legal collision course with the Ninth Circuit and any other jurisdiction that adopts a similar position.

This Comment argues that digital border searches merit greater scrutiny than conventional border searches because they are more likely to harm individuals’ Fourth Amendment interests. The executive and legislative branches have been unwilling and unable, respectively, to cabin the government’s power to search people’s electronic devices without suspicion. Consequently, this Comment proposes that courts add guidance, consistency, and greater Fourth Amendment protection to the laws governing suspicionless digital searches at the border by adopting a special needs–style balancing test that weighs the government’s interests against the individual’s and provides that the most intrusive searches are impermissible without reasonable suspicion.

Full Article: http://www.uclalawreview.org/?p=5064

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Journal of Criminal Law & Criminology

http://www.law.northwestern.edu/depts/l ... 100-3.html

The link above includes links to the following symposium topics:

I. Crimes and Punishments

Capital Punishment: A Century of Discontinuous Debate
Carol S. Steiker & Jordan M. Steiker 643

A Short History of American Sentencing: Too Little Law, Too Much Law, or Just Right
Judge Nancy Gertner 691

The Modern Irrationalities of American Criminal Codes: An Empirical Study of Offense Grading
Paul H. Robinson, Thomas Gaeta, Matthew Majarian, Megan Schultz & Douglas M. Weck 709

How Much Do We Really Know About Criminal Deterrence?
Raymond Paternoster 765

II. "Justice" in Action

One Hundred Years Later: Wrongful Convictions After a Century of Research
Jon B. Gould & Richard A. Leo 825

Efficiency and Cost: The Impact of Videoconferenced Hearings on Bail Decisions
Shari Seidman Diamond, Locke E. Bowman, Manyee Wong & Matthew M. Patton 869

Racial and Ethnic Disparity and Criminal Justice: How Much is Too Much?
Robert D. Crutchfield, April Fernandes & Jorge Martinez 903

The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment "Search and Seizure" Doctrine
Thomas Y. Davies 933

III. The People

One Hundred Years of Race and Crime
Paul Butler 1043

"Offending Women": A Double Entendre
Joanne Belknap 1061

Damaged Daughters: The History of Girls' Sexuality and the Juvenile Justice System
Lisa Pasko 1099

IV. Freedom in Decline

Bill Clinton's Parting Pardon Party
Albert W. Alschuler 1131

The Twilight of the Pardon Power
Margaret Colgate Love 1169

Reflections and Perspectives on Reentry and Collateral Consequences
Michael Pinard 1213

The Scale of Imprisonment in the United States: Twentieth Century Patterns and Twenty-First Century Prospects
Franklin E. Zimring 1225

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RECENT CASE: Criminal Procedure - Fourth Amendment - Florida Supreme Court Holds that Cell Phone Data Is Not Subject to the Search-Incident-to-Arrest Exception. - Smallwood v. State, 113 So. 3d 724 (Fla. 2013).

127 Harv. L. Rev. 1059 (Jan. 2014)

Warrants are central to the legitimacy of the American legal system, and the Supreme Court has found that warrantless searches, as a rule, are prohibited under the Fourth Amendment unless they fall into one of several "specifically established and well-delineated exceptions." 1 The search-incident-to-arrest exception allows police to search arrestees and their immediate surroundings, typically for weapons or evidence that could be destroyed. 2 The Court has spent the last fifty years determining, fact pattern by fact pattern, whether particular searches are permissible under the search-incident-to-arrest exception. 3 Whether cell phones on an arrestee's person can be searched without a warrant has been one area of particularly drastic lower court divergence 4 and Supreme Court silence. 5 Recently, the Supreme Court of Florida joined this debate. In Smallwood v. State, 6 the court held that the Fourth Amendment prohibits police from warrantlessly searching the contents of a person's cell phone incident to a lawful arrest. 7 The court correctly adduced that cell phones represent a different kind of object from a simple container, but its ultimate holding relied on overly broad doctrinal analysis rather than any feature specific to cell phones. The court unnecessarily reinterpreted Fourth Amendment doctrine when it should have created a narrow, bright-line exception for cell phones within existing precedent.

Full Article: http://www.harvardlawreview.org/issues/ ... e_9559.php

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After Jones, The Deluge: The Fourth Amendment's Treatment Of Information, Big Data And The Cloud

Lon A. Berk

14 J. High Tech. L. 1 (2014)

New technologies force us to re-examine theories, no less in law than in science. Information technologies have radically changed social and commercial interactions, providing communication, access to data and computation resources on a scale barely imaginable just fifty years ago, let alone in the eighteenth century. But with these benefits have come threats as well. In particular, the use of information technologies vastly increases the scope and possibility of governmental and private parties' interference with and surveillance of individuals, and, as a result, creates severe tensions on the juris-prudential theories used to protect basic liberties and privacies. 1 The National Security Agency's internet and surveillance activities revealed this summer by Edward Snowden are one symptom of these tensions. 2 As our technological abilities increase, so do the threats to basic liberties.

In this essay, I examine one of these tensions by looking at the impact of cloud computing on Fourth Amendment rights. 3 Current Fourth Amendment jurisprudence leaves a gap that threatens to swallow the whole of the Amendment's protections when applied incautiously in our current technological milieu. 4 This is at least in part because that jurisprudence developed during times when technology imposed limitations not only upon surveillance, but, perhaps as importantly, upon the nature and volume of the papers and effects citizens, individually and collectively, had the power to create, use, and possess. 5 The availability of technological innovations, including in particular, cloud computing, has vastly expanded what citizens can create and use and hence what governments can seize and search. 6 Moreover, cloud computing has done so in a manner that exposes certain shortcomings in current Fourth Amendment jurisprudence.

Full Article: http://www.suffolk.edu/law/student-life/25832.php
http://www.suffolk.edu/documents/jhtl_p ... s/BERK.pdf