Fourth Amendment

Standing in the Shadows of the New Fourth Amendment Traditionalism

Nicholas A. Kahn-Fogel

Abstract In the past decade, the Supreme Court of the United States has revived an originalist, property-based approach to evaluating Fourth Amendment problems. The Court has used this approach to broaden its understanding of the sorts of governmental conduct that qualify as Fourth Amendment searches. So far, however, neither the Court nor scholars have offered […]

Race and Reasonable Suspicion

Ric Simmons

Abstract The current political moment requires society to rethink the ways that race impacts policing. Many of the solutions will be political in nature, but legal reform is necessary as well. Law enforcement officers have a long history of considering a suspect’s race when conducting criminal investigations. The civil rights movement and the progressive criminal […]

Border Searches in a Digital Age: Finding Alignment Amidst a Diluted Right

Anne L. Kelley

Abstract Searches of electronic devices at the border present a sui generis situation that distinguishes them from traditional border searches of other physical property, such as a backpack, car, or piece of luggage. The traditional border search doctrine framework has challenged federal courts with regard to how to categorize searches of electronic devices at the […]

GPS and Cell Phone Tracking of Employees

Marc Chase McAllister

Abstract This Article examines employee location tracking through smart phone apps and GPS devices attached to or embedded within an employee’s personal or company vehicle. For each form of tracking, this Article provides separate frameworks for employers to follow when conducting individual employee misconduct investigations and when tracking an entire group of employees for non-investigatory […]

The Fourth Amendment, Dark Web Drug Dealers, and the Opioid Crisis

Written by: Katharine Stewart

Abstract This Note addresses whether people who use criminal aliases to send drugs through the mail should retain their Fourth Amendment rights in those packages. While several circuit courts have identified this as an issue, none have resolved it. One district court has been able to conclude, unquestioned by the higher courts, that such people do not retain their Fourth […]

Policing, Technology, and Doctrinal Assists

Written by: Bennett Capers

Abstract Sounding the alarm about technology, policing, and privacy has become an almost daily occurrence. We are told that the government’s use of technology as a surveillance tool is an “insidious assault on our freedom.” That it is “nearly impossible to live today without generating thousands of records about what we watch, read, buy and […]

“I Am Cait,” But It’s None of Your Business: The Problem of Invasive Transgender Policies and a Fourth Amendment Solution

Written by: Elise Holtzman

Abstract Transgender people constitute a distinct minority with unique legal battles. There is a widespread societal misunderstanding of what it means to be transgender that results in treating the transgender community the same as their lesbian, gay, and members of bisexual counterparts. This misunderstanding is even more prevalent in the legal context, resulting in a […]

Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness

This Article builds on a growing body of scholarship discussing the role of reasonableness in consent-search doctrine. Although the language of “voluntary consent” implies a subjective inquiry into the state of mind of the person granting consent, the U.S. Supreme Court has repeatedly injected an objective standard of reasonableness into its analysis of a citizen’s […]

Anna P. Hayes, Fernandez v. California and the Expansion of Third-Party Consent Searches

Imagine a day when the police come knocking at your door: you open the door, and the police ask you if they may conduct a warrantless search of your residence. As any good constitutional law student would, you explain to them that you are well aware of your rights under the Fourth Amendment, and that […]

Andrew Guthrie Ferguson, Constitutional Culpability: Questioning the New Exclusionary Rules

This Article addresses the questions left unanswered by the Supreme Court’s recent exclusionary rule cases. The Hudson-Herring-Davis trilogy presents a new and largely unexamined doctrinal landscape for Fourth Amendment suppression hearings. Courts, litigators, and scholars are only now assessing what has changed on the ground in trial practice. Once an automatic remedy for any constitutional […]

Kathleen Carlson, Social Media and the Workplace: How I Learned to Stop Worrying and Love Privacy Settings and the NLRB

Social media has permeated every aspect of society. The use of social media can easily lead to issues in an employment law context when employees suffer adverse employment actions based on the information they choose to share via their personal social media websites. Today’s laws concerning online privacy are in a nebulous state and have […]

Amy E. Pope, Lawlessness Breeds Lawlessness: A Case for Applying the Fourth Amendment to Extraterritorial Searches

It is a priority of the United States to [h]elp partner countries strengthen governance and transparency, break the corruptive power of transnational criminal networks, and sever state–crime alliances. The United States needs willing, reliable and capable partners to combat the corruption and instability generated by TOC  [Transnational Organized Crime] and related threats to governance. We will help international partners develop […]

Caycee Hampton, Confirmation of a Catch-22: Glik V. Cunniffe and the Paradox of Citizen Recording

63 Fla. L. Rev. 1549 (2011)| | | | On October 1, 2007, Simon Glik observed several police officers arresting a young man on the Boston Common. Concerned that the officers were employing excessive force, Glik began to record the arrest with his cell phone. After successfully arresting the young man, an officer asked Glik […]

Nathan A. Frazier, Amending for Justice's Sake: Codified Disclosure Rule Needed to Provide Guidance to Prosecutor's Duty to Disclose

63 Fla. L. Rev. 771 (2011)| | | | ABSTRACT :: “I wouldn’t wish what I am going through on anyone,” Senator Ted Stevens commented after losing his seat in the United States Senate on November 18, 2008. Senator Stevens lost the race largely because a criminal conviction damaged his reputation. After Senator Stevens endured […]

Tim Sobczak, The Consent-Once-Removed Doctrine: The Constitutionality of Passing Consent from an Informant to Law Enforcement

62 Fla. L. Rev. 493 (2010) |   |   |   | ABSTRACT :: In 2002 Brian Bartholomew was charged with possession of methamphetamine. In hopes of obtaining leniency, Bartholomew chose to assist the Central Utah Narcotics Task Force as a confidential informant. As an informant, Bartholomew arranged to buy drugs from Afton Callahan […]

Jeff Fabian, Don't Tase Me Bro!: A Comprehensive Analysis of the Laws Governing Taser Use by Law Enforcement

62 Fla. L. Rev. 763 (2010) | | | | INTRODUCTION ::Financially destitute and homeless, a man began to sob after receiving a speeding ticket. When the man refused to sign the ticket, the ticketing officer arrested the man. The officer placed the man in handcuffs and began leading him to the patrol car. As […]

Dante P. Trevisani, Passenger Standing To Challenge Searches And Seizures: A Distinction without a Constitutional Difference

61 Fla. L. Rev. 329 (2009) | | | | INTRODUCTION :: On November 27, 2001, Deputy Sheriff Robert Brokenbrough noticed a Buick with expired registration tags. After verifying from the police dispatcher that the application for renewal tags was being processed, and therefore the Buick was not in violation of any traffic laws, he […]

F. Patrick Hubbard, In Honor of Walter O. Weyrauch: Substantive Due Process Limits on Punitive Damages Awards: "Morals Without Technique"?

60 Fla. L. Rev. 349 (2008) | | | | INTRODUCTION :: In a series of cases over the last two decades, the Supreme Court has used the Due Process Clause to establish a procedural and substantive framework for awarding punitive damages. Initially, the substantive aspects of this framework were sufficiently flexible and clear that […]

Michael J. Hooi, Qualified Immunity: When is a Loss Ultimately a Win?

60 Fla. L. Rev. 979 (2008) | | | | TEXT :: Scott v. Harris, 127 S. Ct. 1769 (2007) A Georgia sheriff’s deputy clocked Victor Harris driving seventy-three miles per hour in a fifty-five mile per hour zone. After Harris ignored the deputy’s signal to pull over for speeding, the deputy began a high-speed […]

Timothy Zick, Clouds, Cameras, and Computers: The First Amendment and Networked Public Places

59 Fla. L. Rev. 1 (2007) | | | | INTRODUCTION :: It seems to be a common assumption that physical places like parks, sidewalks, and public squares, and “cyber-places” like the Web, constitute separate locations of communication. In reality, however, the intersection and collision of these two spaces is imminent. In some respects it […]

Mary-Rose Papandrea, Student Speech Rights in the Digital Age

60 Fla. L. Rev. 1027 (2008) | | | | ABSTRACT :: For several decades courts have struggled to determine when, if ever, public schools should have the power to restrict student expression that does not occur on school grounds during school hours. In the last several years, courts have struggled with this same question […]

Lisa A. Mattern, Constitutional Law: Knock-And-Announce Violations and the Purposeful Enforcement of the Exclusionary Rule

59 Fla. L. Rev. 465 (2007) | | | | TEXT :: Officers obtained a warrant to search for drugs and firearms in Petitioner’s home. Although the officers announced their presence, they waited only three to five seconds before entering the unlocked residence. Once inside, they discovered large quantities of drugs and a loaded firearm. […]

Benjamin Robinson, Constitutional Law: Suppressing the Exclusionary Rule

59 Fla. L. Rev. 475 (2007) | | | | TEXT :: Police obtained a warrant to search Petitioner’s home and, after announcing their presence, waited only a short time before they entered and discovered drugs and a loaded gun. The State charged Petitioner with unlawful drug and firearm possession. Petitioner moved to suppress all […]

Mark C. Weber, Reflections on the New Individuals with Disabilities Education Improvement Act

58 Fla. L. Rev. 7 (2006) | | | | INTRODUCTION :: The Individuals with Disabilities Education Improvement Act, Orwellian title and all, received its presidential signature on December 3, 2004. The Act is already fully in effect, and the United States Department of Education proposed regulations to implement it on June 21, 2005. Although […]

Carole J. Buckner, Due Process in Class Arbitration

58 Fla. L. Rev. 185 (2006) | | | | INTRODUCTION :: The ubiquity of arbitration clauses in consumer and employment agreements and the Supreme Court’s plurality opinion in Green Tree Financial Corp. v. Bazzle, which implicitly permitted class arbitration, marked the beginning of a new era in class arbitration. Although it is well-established that […]

Charles T. Douglas, Jr., Compensating for Canker: A Sore Subject for Florida's Citrus Growers: Haire v. Florida Department of Agriculture & Consumer Services, 870 So. 2d 774 (Fla. 2004)

57 Fla. L. Rev. 421 (2005) | | | TEXT :: Florida’s citrus canker law (the Canker Law) requires the State to destroy healthy-appearing citrus trees that are within a 1900-foot radius of an infected tree. The Florida Legislature enacted this eradication program to thwart the spread of canker and to protect Florida’s second largest […]

Peter Koclanes, Unreasonable Seizure: "Stop and Identify" Statutes Create an Illusion of Safety by Sacrificing Real Privacy: Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004)

57 Fla. L. Rev. 431 (2005) | | | | TEXT :: In the course of a lawful stop, police asked Petitioner, Larry Hiibel, to identify himself, a demand permissible under Nevada’s “stop and identify” statute. After refusing to give his name, Hiibel was arrested and subsequently found guilty of violating the “stop and identify” […]

William R. Snyder, Jr., Slipping Down the Slope of Probable Cause: An Unreasonable Exception to What Was Once a Reasonable Rule: Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004)

57 Fla. L. Rev. 445 (2005) | | | | TEXT :: Upon receiving a call reporting possible domestic violence, a sheriff’s deputy in Humboldt County, Nevada detained Petitioner under the authority of a state statute allowing an officer to “stop and identify” a person suspected of criminal behavior. During the course of the detention, […]

Diane J. Zelmer, Constitutional Law: Convicting Detainees for Refusing to Answer Law Enforcement's Commonsense Inquiries Makes no Commonsense: Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004)

57 Fla. L. Rev. 459 (2005) | | | | TEXT :: While investigating an assault report, a police officer observed a silver and red GMC truck parked on the roadside with skid marks behind it. Petitioner, who appeared intoxicated, stood outside the truck, and a young woman sat inside the truck. Threatening arrest, the […]

Jeffrey A. Bekiares, Constitutional Law: Ratifying Suspicionless Canine Sniffs: Dog Days on the Highways

57 Fla. L. Rev. 963 (2005) | | | | TEXT :: Respondent, a motorist on an Illinois highway, was arrested and charged with one count of cannabis trafficking in contravention of chapter 720, section 550/5.1(a) of the Illinois Code. An Illinois State trooper pulled Respondent over for traveling 6 miles per hour in excess […]

Daniel J. Steinbock, National Identity Cards: Fourth and Fifth Amendment Issues

56 Fla. L. Rev. 697 (2004) | | | | INTRODUCTION :: In the frenzied days and weeks following September 11, 2001, many observers called for serious consideration of a national identity system, the centerpiece of which would be some form of national identity card. Such a system was seen mainly as a tool against […]

David E. Steinberg, The Original Understanding of Unreasonable Searches and Seizures

56 Fla. L. Rev. 1051 (2004) | | | | INTRODUCTION :: Today, the Fourth Amendment to the United States Constitution covers most government evidence-gathering activities. In search and seizure cases, after determining that the Fourth Amendment applies to an investigation, the Supreme Court then specifies the Fourth Amendment standard that governs the law enforcement […]