139 research outputs found
Black and Blue Encounters Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?
Is Obtaining an Arrestee\u27s DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?
An increasing number of states are enacting laws authorizing the forcible taking and analysis of DNA from certain categories of arrestees. For example, California\u27s Proposition 69 requires state law enforcement officials to obtain DNA samples from certain arrestees. By 2009, Proposition 69 will require a DNA sample from every adult arrested for or charged with a felony. This article addresses the constitutionality, under the Fourth Amendment, of taking DNA samples from persons subject to arrest. In particular, the article focuses on the statutes of Virginia and Louisiana, which have authorized DNA sampling of persons arrested for violent crimes and sex offenses, and examines whether these laws are consistent with the Fourth Amendment\u27s special needs doctrine as outlined by several Supreme Court rulings.
The thesis of the article is that forcibly obtaining DNA from an arrestee violates the Fourth Amendment. There is little doubt these intrusions are searches under the Fourth Amendment. Moreover, I argue that this type of search cannot be upheld under the Supreme Court\u27s special needs cases because obtaining a DNA sample is directly designed to promote the state\u27s interest in solving crimes
A Criminal Procedure Regime Based on Instrumental Values: A Review of \u27About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure,\u27 by Donald A. Dripps (Prager Publishers, 2003)
Like many legal academics, Professor Donald Dripps believes that the Supreme Court\u27s criminal procedure doctrine is a mess. Dripps believes that the Court\u27s doctrine is in large measure responsible for the failure of the criminal-procedure revolution and contends that current doctrine does not reflect prevailing (and justified) values about criminal process. To prove his claim, Dripps has written a book that expertly identifies the flaws, inconsistencies and missteps of the Court\u27s constitutional criminal procedure cases dating back to the adoption of the Fourteenth Amendment. About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure is a comprehensive and thoughtful critique of the Court\u27s criminal procedure jurisprudence. The book primarily focuses on the Court\u27s Fourth, Fifth and Sixth Amendment cases. My review of Dripps\u27 book proceeds in two parts. Part I provides a general overview of the book and highlights Dripps\u27 core arguments. Generally speaking, Dripps asserts that the Court\u27s criminal procedure cases should focus on instrumental concerns, such as proportionate police investigative practices and reliable adjudicatory procedures. Part II of my review discusses Dripps\u27 analysis of the Court\u27s confession cases. This part includes a description of Dripps\u27 proposal to regulate police interrogation under an instrumental regime and my critique of his proposal
Police Interrogation during Traffic Stops: More Questions than Answers
This short paper focuses on whether the Fourth Amendment permits police, during a routine traffic stop, to arbitrarily question motorists about subjects unrelated to the purpose of the traffic stop. The paper was prompted by a recent Ninth Circuit ruling, United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007), which was authored by Judge Stephen Reinhardt.
Prior to Mendez, the Ninth Circuit had taken the position that the Fourth Amendment barred police from questioning motorists about subjects unrelated to the purpose of a traffic stop, unless there was independent suspicion for such questioning. This rule was based on the principle that the Fourth Amendment limits the scope of a traffic stop in the same way that the amendment, as announced in Terry v. Ohio, restricts police activity during an investigative detention to actions reasonably related to the justification for the detention.
In Mendez, however, Judge Reinhardt reversed circuit precedent and ruled that during routine traffic stops, police are free to questions motorists about any subject, provided such questioning does not prolong the length of the traffic stop. Judge Reinhardt\u27s opinion was based on his reading of two Supreme Court cases: Illinois v. Caballes, 543 U.S. 405 (2005) and Muehler v. Mena, 544 U.S. 93 (2005). Judge Michael McConnell has adopted the same rule for the Tenth Circuit in United States v. Stewart, 473 F. 3d 1265 (10th Cir. 2007).
The article explains how Judge Reinhardt and Judge McConnell have misread Caballes and Mena. Their rulings have not only given police the authority to arbitrarily question motorists about criminal behavior, but also directly contradict the Fourth Amendment command that an investigative intrusion must be strictly tied and justified by the circumstances which render its initiation permissible. The judges\u27 interpretation, if not corrected, will undermine Fourth Amendment protections that courts across the nation have uniformly recognized since Terry v. Ohio
The Bush Administration\u27s Terrorist Surveillance Program and the Fourth Amendment\u27s Warrant Requirement: Lessons from Justice Powell and the Keith Case
This article was written for a symposium issue of the University of California at Davis Law Review on the fortieth anniversary of Katz v. United States. The article analyzes the Bush Administration\u27s claim that the President has the authority to order warrant less electronic surveillance of communications between American citizens and persons abroad suspected of having connections with foreign terrorists groups. When evaluating this claim, my article focuses on a case that could be characterized as more constitutionally robust and stronger Katz. That case is United States v. United States District Court, also known as Keith. The Keith ruling held that the President did not have the power to authorize warrant less wiretaps in national security cases. Today, in light of the war on terror and the Bush Administration\u27s claim of inherent authority to conduct warrant less electronic surveillance for foreign intelligence purposes, the Keith decision is a more pertinent and significant case than Katz. The Keith case, a product of the Burger Court, merits our attention today for several reasons. One remarkable aspect about Keith, at least in retrospect, is not just the result which, at the time, the press and public saw as stunning, but also the fact no Justice voted to uphold the government\u27s claim that warrant less wiretaps in national security cases were reasonable under the Fourth Amendment. Another important aspect about Keith is that it not only rejected President Nixon\u27s claim, but it did so in a manner that unmistakably embraced the warrant requirement, a core precept of the Warren Court\u27s Fourth Amendment jurisprudence. Finally, understanding the scope and rationale of Keith is important today because its logic is equally applicable to the Bush Administration\u27s claim that it has the power to monitor telephone and e-mail communications between American citizens and persons suspected of having connections with foreign terrorist organizations. The Administration has argued that the Fourth Amendment\u27s warrant requirement does not apply to the Terrorist Surveillance Program conducted by the National Security Agency. When evaluating this claim, it is instructive to recall how the Keith Court responded to President Nixon\u27s similar claim that he had the power to authorize warrant less wiretaps in domestic security scenarios: the Court rejected it. What Keith said about the President\u27s authority in domestic security cases equally applies to warrant less electronic surveillance inside the nation\u27s borders of American citizens whom the government suspects have ties to terrorist groups. In fact, there is no principled, constitutional difference between the Keith case and what the Bush Administration has done with the Terrorist Surveillance Program
Cops and Cars: How the Automobile Drove Fourth Amendment Law
This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s Justices view the Fourth Amendment rights of motorists essentially the same way that a majority of the Justices did in 1925. Specifically, Part I highlights Seo’s major assertions regarding Carroll; Carroll’s influence on another controversial search and seizure decision, Terry v. Ohio, 392 U.S. 1 (1968), which upheld an officer’s power to stop and frisk a person he suspects is armed and dangerous; and finally, Carroll’s connection to the police authority upheld by the Justices that permits the discretionary and discriminatory policing that currently pervades America’s highways and roads. Part II of this essay focuses on the modern Court’s understanding of motorists’ privacy. Carroll’s vision of how the Fourth Amendment applies to searching cars was not inescapable. While many lawyers and law students today might not believe it, not so long ago several members of the Burger Court took the view that cars should be treated like other effects under the Fourth Amendment – which meant the warrant requirement would apply to cars. Though a majority of Justices never embraced the view that warrants are required to search the interior of vehicles, in a series of cases the Court went back and forth on whether warrants were needed to search private containers found in vehicles. Part II examines these cases and the Court’s flawed norm that motorists have diminished privacy interests in closed containers found in cars when police have probable cause to search. One could view these cases as adopting a narrower view of motorists’ privacy rights than the view embraced by Carroll. More importantly, the understanding that currently permits warrantless searches of suitcases and purses under the automobile exception, if meant to be a neutral principle, would also allow warrantless searches of computers and cell phones found in cars. I examine whether today’s Court will apply the automobile exception to searches of computers, cell phones and other electronic devices found in vehicles
Is Yale Kamisar as Good as Joe Namath?: A Look Back at Kamisar's "Prediction" of Miranda v. Arizona
Voluntary Interviews and Airport Searchers of Middle Eastern Men: The Fourth Amendment in a Time of Terror
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