Searches, Seizures, Confessions and Some Thoughts on \u3cem\u3eCriminal Procedure: Regulation of Police Investigation—Legal, Historical, Empirical, and Comparitive Materials

Criminal procedure casebooks densely populate the market but rarely are reviewed. In Criminal Procedure: Regulation of Police Investigation-Legal, Historical, Empirical, and Comparative Materials, Christopher Slobogin copes with the anxiety of influence by writing a different sort of text. Simply put, the book is outwardly somewhat homely. Aesthetics aside, the book is mostly excellent and astonishingly so for a first edition. As the subtitle promises, the book has something for everyone: historians, empiricists, comparativists, theoreticians, case-crunchers, and practitioners. This review essay tracks the book\u27s crowning achievement-the refreshing and inventive perspectives chapter that opens the book. The essay then reflects on the few aspects of the chapters on search and seizure, confessions, and remedies that I believe are slightly flawed or incomplete

Certain Certiorari: The Digital Privacy Rights of Probationers

In a recent oral argument, a judge on the California Court of Appeal told me they had at least 50 pending cases on the constitutionality of probation conditions authorizing suspicionless searches of digital devices. As counsel of record in three of those cases, I feel positioned to comment on this hot topic within criminal law. My intention here is less to reconcile California\u27s cases on suspicionless searches of probationers\u27 digital devices than to locate them within the precedents of the United States Supreme Court, which is bound before long to pick up a case for the same purpose

Decoding the Impossibility Defense

Impossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated over 3000 criminal cases as on point, 1200 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation. Although it is now hornbook that impossible attempts are punishable as crimes, there remains a sense of a non-trivial difference between failing at larceny by picking the empty pocket of a passerby on a sidewalk and by picking the empty pocket of a mannequin in a department store. What remains up in the air is what accounts for that difference. Here I decode the impossibility defense by “hounding down the minutiae” of what it means to make a mistake. I am certainly not the first to insist that the impossibility defense lives on. I am, however, the first to base such a claim on the grammar or criteria of mistakes, which can get us closer to the bottom of what makes attempts impossible and why it matters

Overcoming Hiddenness: The Role of Intentions in Fourth Amendment Analysis

This Article rehearses a response to the problems posed to and by the Supreme Court\u27s attempts to work out the meaning and operation of the word search. After commencing Part II by meditating on the notion of privacy, I take up its relation to the antecedent suspicion or knowledge that Fourth-Amendment law requires as a justification for all privacy invasions. From there, I look specifically at that uneasy relation in Supreme Court jurisprudence, which has come to privilege privacy over property as a Fourth Amendment value. From there, Part III reviews the sources or bases that can tell us what can count as private: 1) the positive laws of property, tort, crime, and contract; 2) laborious questioning of the sort performed by Chris Slobogin; and 3) the routine versus nonroutine nature of the governmental surveillance in question (let\u27s call this the O\u27Connor position from Florida v. Riley, recently resurrected in Bond v. United States). To the extent that the routine nature of some intrusive actions does not disqualify them as unacceptably intrusive, Part IV suggests an alternative method for determining what constitutes a search. In order to establish that the intentions of both search victim and police should play an important role in this determination, I take some care to look at the unhappy role that intentions currently play in Supreme Court jurisprudence, particularly in the context of so-called pretexts. After mapping my criticisms of the Court\u27s analysis of intentions in that context onto the question of what constitutes a search, I am able to take a position on the extent to which spying (as opposed to more coercive police actions) should be regulated by the Fourth Amendment

Stuffed Deer and the Grammar of Mistakes

Impossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated nearly 1500 criminal cases as on point, 900 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation. Although it is now hornbook that impossible attempts are punishable as crimes, there remains a sense of a non-trivial difference between failing at larceny by picking the empty pocket of a passerby on a sidewalk and by picking the empty pocket of a mannequin in a department store. What remains up in the air is what accounts for that difference. Here I hope to decode the impossibility defense by “hounding down the minutiae” of what it means to make a mistake. I am certainly not the first to insist that the impossibility defense lives on. I am, however, the first to base such a claim on the grammar or criteria of mistakes, which can get us closer to the bottom of what makes attempts impossible and why it matters. Extant impossibility cases and scholarship take mistakes as a given. But what is a mistake? Is the answer too obvious to mention? Within the stock hypotheticals of impossible attempts, a man shoots a tree stump or a corpse, each mistaken for a live person, or administers a live person an innocuous substance mistaken for poison. These stick-figure hypotheticals pose whether attempted murder has occurred. But because it is stipulated that each action owes to mistake, we are told so little about what happened that of course the question is hard to answer. Any chance of making sense of the hypotheticals is stymied by an absence both of facts and any concern for what can count as a mistake. My contribution here to the considerable work of others is therefore to locate the impossibility defense within an actual context of human action and concern

Stubbornness of Pretexts

This Article will reflect on (1) how the Whren v. United States failure to acknowledge what counts as a pretext accounts for the residual confusion as to whether or not Whren really has killed off the pretext argument in constitutional criminal procedure, and (2) the extent to which the Court in Sullivan compounded that failure, which I hope to lightly correct here by distinguishing motives from intentions and then by elaborating the role that each plays, or at least should play, in Fourth Amendment jurisprudence