Search and Seizure

While the U.S. Supreme Court has settled the question of the constitutionality of anticipatory search warrants, Texas has no statutory provision regulating the issuance of such warrants. Similarly, state appellate courts have contributed almost nothing to the question of whether such warrants are acceptable under Texas procedural law or, if they are, under what circumstances. As the use of such warrants grows in the state, these issues require attention. This article begins that discussion, reviewing existing law and proposing interpretations of current statutes as well as proposing others.

This law review article compares the rules of evidence regarding unlawful searches and seizures in the United Nations, United States, United Kingdom, Canada, Germany, and the Russian Federation. It accounts for both de facto and de jure application of these laws by each group/nation's respective governing bodies.

A busca e apreensão no ordenamento jurídico brasileiro se restringe a um Código de Processo Penal voltado meramente às coisas materiais, evidenciando a inexistência de uma regulação normativa específica que acompanhe a atual dinâmica das relações sociais que implica o alto nível de uso tecnológico em todas as esferas. A ausência da adequação dessa disciplina jurídica diante da evolução tecnológica somada à lacuna jurídica sobre a custódia da prova contribui para a criação de categorias divorciadas de sua natureza jurídica. Nesse sentido, o presente artigo visa a analisar a licitude da busca e a apreensão de dados extraídos de telefones celulares. Para tanto, utilizou-se a pesquisa bibliográfica e a análise jurisprudencial de casos da Suprema Corte dos Estados Unidos, do STF, STJ, do Tribunal de Justiça da União Europeia e as inovações trazidas pelo Tribunal Constitucional Federal alemão. Uma especial atenção é dada aos casos Riley vs. California e Carpenter vs. United States. Entre outras questões, destacam-se as dificuldades em relação à obtenção dos dados eletrônicos que se encontram no telefone celular e a necessidade de maior definição quanto aos limites da busca e do material que poderá ser apreendido

The officer walking the beat has numerous tools at her disposal to effectuate a warrantless search, the most popular of which is the consent search. Academics, courts, and the public appear skeptical of current consent search practices; so, how did we get here? Step back to 1969 when President Nixon appointed Warren Burger to replace Earl Warren as Chief Justice of the Supreme Court. At that time, many believed Burger’s “law and order” background foretold Miranda’s overruling. That never happened; a handful of commentators and historians therefore view the Burger Court’s criminal procedure decisions as anticlimactic. That view overlooks the Burger Court’s crowning anti-Miranda achievement: Schneckloth v. Bustamonte. Schneckloth made clear that warning citizens of their constitutional rights had no place outside the context of custodial interrogation.

No article has asked an important and fundamental question about the Schneckloth opinion: what set of circumstances led the Court to conclude that the Fourth Amendment does not require that citizens be informed of their right to refuse consent? This Article argues that Schneckloth is the product of a truly unique confluence of social, political, and judicial circumstances. By properly understanding Schneckloth in its broader historical context, the Article reveals its truly anomalous nature and similarly reveals why the Court should reconsider whether the Fourth Amendment requires officers to inform citizens of their right to refuse consent.

In 2012, the Supreme Court of the United States decided
Florence v. Board of Chosen Freeholders of the County of
Burlington.  The Court held that full strip searches, including cavity searches, are permissible regardless of the existence of basic reasonable suspicion that the arrestee is in possession of contraband.  Further, the Court held that law enforcement may conduct full strip searches after arresting an individual for a minor offense and irrespective of the circumstances surrounding the arrest.  These holdings upended typical search jurisprudence. Florence sanctions the overreach of state power and extends to law enforcement and corrections officers the unfettered discretion to conduct graphically invasive, suspicion-less strip searches.

The Fifth Circuit Court of Appeals annually decides , or in some other way disposes of, several hundred cases which might be considered to fall within the topic of criminal law and procedure. Several conclusions can be drawn from the cases decided by the Fifth Circuit Court of Appeals during this survey period.

First, the court continues to adhere to a posture which reflects trust in the trial and pretrial process. That is, like most appellate courts, it views its role not as simply another forum for correcting all of the mistakes that have occurred in either the pretrial or trial process. Second, the court continues to present a united front in disposing of criminal law issues. Very few cases were marked with dissenting opinions. And in those few cases, the issues seemed close. Third, although several of the cases raised questions of first impression, such as the decision addressing the issue of compulsory urinalysis, most of the foregoing cases demonstrate the time-worn adage that "old" law is still good law. In reading the cases, one is left with the distinct impression that most of the issues have been addressed before and that the court views the newer cases as an extension of its precedent.

Finally, the Fifth Circuit has, for the most part, remained within the mainstream of the other circuits. In doing so, it has demonstrated a properly cautious attitude of permitting some issues to percolate and develop rather than rushing into breach and aggressively legislating a result.

In addressing the issues of obtaining bodily evidence, such as bodily fluids, from a suspect, Rule 312 of the Military Rules of Evidence must be considered in conjunction with the issues of self-incrimination, due process, and the Fourth Amendment. The Rule describes the procedures for collection of bodily evidence of service members. For example, a service member may not invoke the right against self-incrimination for external bodily evidence, but may when bodily fluids or cavity searches are requested. Any nonconsensual search may be conducted if it is both reasonable and performed under one of the authorized procedures of Rule 312. Any invasive search must also be conducted by a medical professional. Treating bodily evidence collection as a Fourth Amendment issue from the outset and using extreme care in conducting search and seizure helps avoid self-incrimination and due process issues.

In Bostick and Drayton, the Supreme Court announced that per se rules were inappropriate in answering the Fourth Amendment seizure question, “Would a reasonable citizen feel free to leave?” But when, if ever, can one factor in a pedestrian encounter with police be so inherently coercive that it becomes dispositive? The D.C. and Fourth Circuits explicitly disagree over whether police retention of identification documents constitutes such a factor. The D.C. Circuit has held that such retention is a per se seizure because a citizen cannot feel free to leave when her documents are in police hands. In contrast, the Fourth Circuit rejected this reasoning on the grounds that a citizen can always demand the return of her documents. Contrary to its strong wording, however, the Supreme Court’s rejection of per se rules is not so absolute, and in fact, per se rules do apply where single factors are inherently coercive. Two related areas of Fourth Amendment jurisprudence—traffic stops and voluntariness of consent—demonstrate that courts typically recognize this inherent coercion in police retention of documents. Further, the Fourth Circuit’s approach fails to reflect accurately citizens’ true feelings of restraint in these contexts, as explored in recent empirical studies. Instead, the D.C. Circuit’s approach takes into account the power disparity present where police retain identification. Its per se rule not only clarifies the standard for courts but also creates clear conduct rules and places the burden of monitoring coercive force on the police, who are best equipped to do so.

In 2012, the Supreme Court of the United States decided Florence v. Board of Chosen Freeholders of the County of Burlington. The Court held that full strip searches, including cavity searches, are permissible regardless of the existence of basic reasonable suspicion that the arrestee is in possession of contraband. Further, the Court held that law enforcement may conduct full strip searches after arresting an individual for a minor offense and irrespective of the circumstances surrounding the arrest. These holdings upended typical search jurisprudence. Florence sanctions the overreach of state power and extends to law enforcement and corrections officers the unfettered discretion to conduct graphically invasive, suspicion-less strip searches. The Court’s dereliction of duty is enough to concern all citizens. However, the impact of this phenomenal lapse will not be felt equally in the age of what Bonilla-Silva has termed colorblind racism. In 2013, in the case of Floyd v. City of New...

CRIMES AND ERRORS1 IMPOSSIBLE TO COMMIT: DEFINING AWAY THE FOURTH AMENDMENT. WYOMING v. HOUGHTON, 56 US 295 (1999) Rachel Gader-Shafran2 I. Introduction 576 II. Summary of Facts 579 III. Background 580 A. Shared Vision: The Framers and the ...

Assessing reasonableness inherently calls upon courts to balance the interests of the state with those of the individual. However, existing common law jurisprudence governing the reasonableness of searching the contents of Canadians’ personal electronic devices does not strike an appropriate balance between the individual’s reasonable expectation of privacy and the state’s interest in intruding upon that expectation to pursue the objectives of law enforcement. Most notably, the Supreme Court of Canada’s majority judgment in R v Fearon does not sit comfortably alongside fundamental aspects of the legal record, contrary to legal philosopher Ronald Dworkin’s theory of law as integrity. This suggests that a better constructive interpretation of the law is needed in order to determine the reasonableness of computer searches at customs, for instance by referring to how reasonableness is assessed in other constitutional contexts. Courts ought to apply a more robust proportionality analysis, like that developed under section 1 of the Charter, in order to demonstrate integrity and to make the law on search and seizure of electronic devices “the best that it can be.”

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists of premodern and modern times have articulated on the basis of the pertinent texts; (2) discussing the evidence, or the lack thereof, in the historical record that such rules operated in criminal practice in the premodern Arab-Ottoman Muslim world; and (3) comparing the apparent theories and policies of Islam’s pertinent provisions with those o...

This article focuses on constitutional issues associated with fingerprinting suspects in investigative detention. Following a series of barracks larcenies, Naval Investigative Service (NIS) investigators fingerprinted approximately 100 servicemembers.  All those ordered to report to the NIS office for fingerprinting had been present in the unit at the time of the offenses, and among those was the accused, who was later linked to the crime through his fingerprints.  Before the accused reported to the NIS office there was no probable cause or reasonable suspicion to believe that he was in any way involved in the crimes.  Were the fingerprints admissible?

United States v. Fagan points out the difficult questions that face investigators, lawyers, and judges, when the issue is raised as to what procedures are required in investigative detentions for the purpose of obtaining fingerprints.  Unfortunately, aside from Supreme Court dicta and several state court decisions, there is little guidance in this area.  It is not yet clear whether the guidance that does exist is even constitutional, and there are some major issues that surround investigative detentions.

Given the unique issues raised in the Fagan, and the problems it demonstrates, some careful consideration should be given to developing clear and definite principles which can be readily applied by a worldwide legal system.  The most logical choice is a series of amendments to the Rules of Evidence that would address not only fingerprinting, but related evidence-gathering techniques which in themselves generally will not require a further invasion of privacy but which, at the outset, require seizure of the individual.  Such changes would help ensure that the administration of criminal justice in the military is not haphazard or unprincipled.

This Article is part of a Howard Law Journal Symposium on “Collateral Consequences: Who Really Pays the Price for Criminal Justice?,” as well as my larger book project, Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-First Century (The New Press, 2011). It considers state and federal government expansion of genetic surveillance as a collateral consequence of a criminal record in the context of a new biopolitics of race in America. Part I reviews the expansion of DNA data banking by states and the federal government, extending the collateral impact of a criminal record — in the form of becoming a permanent suspect — to growing categories of people. Part II argues that the benefits of this genetic surveillance in terms of crime detection, exonerations of innocent inmates, and public safety do not outweigh the unmerited collateral penalty of state invasion of individuals’ privacy and the larger harms to democracy. These harms are exacerbated by the...

This article uses The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations (1983) as a springboard for examining the fourth and first amendment implications of government surveillance of domestic political organizations by informers, for exploring the question of whether the surveillance of such groups by informers violates those persons' legitimate expectations of privacy, and for arguing that, since such surveillance not only implicates the fourth amendment but also may have a chilling effect upon the exercise of first amendment rights, the fourth amendment must be read more strictly than usual when domestic political surveillance is in issue.The article observes that existing constitutional law doctrine -- the Supreme Court's informer cases -- is inconsistent with modern fourth amendment analysis and that the Court has not yet considered the impact of first amendment values on its fourth amendment case...

This article focuses on one aspect of school disciplinary enforcement: the search and seizure of students and their property while at school. School search and seizure policy is important because it is not an area of the law that has been frequently examined by legal scholars in the context of youth development. Youth development is becoming part of the discussion around juvenile justice reform with regard to culpability and sentencing, Eighth Amendment issues involving the constitutionality of death or life without parole sentences for juveniles, and in the Fifth Amendment context. However, little has been said about how the scientific and psychological research that is used to support these arguments could be applied to Fourth Amendment jurisprudence. This article is the first in a trilogy of projects that will explore how the school environment effects youth development and identity. Beginning with this article, I advance a theory of juvenile rights that accounts for adolescent d...

Perhaps the greatest trouble with constitutional drafting is its tendency to look backward, at the country’s own political and legal history along with international comparative sources, that were most often drafted y looking backwards in their own right. While this is problematic for a number of reasons, one of the more prominent is that it makes it difficult to find a textual basis for regulation of modern technologies. While such technologies must be dealt with, they are often brought in by judges who can be unprepared for such technological analysis. This paper provides a history of “influential” constitutions and the circumstances that brought about privacy and search and seizure provisions, along with drafting recommendations that will alleviate this problem for future drafters.

This essay is part of a Journal of Legal Education symposium issue on how recent high profile revelations about racially discriminatory policing in Ferguson and elsewhere have affected the way law professors teach, think, write and talk about criminal justice, civil rights, and law in general.

The prohibition of torture, inhuman or degrading treatment or punishment (Art. 3 of European Convention on Human Rights) acts as an important constraint on the coercion inherent in some of the investigative actions in criminal proceedings. This report explores how Art. 3 affects the search and seizure, the physical examination of a person and the taking of samples for comparative study.

To download, go to https://ssrn.com/abstract=3043304

This Article dissects two developments in widely separate areas of American constitutional law – the “reasonable expectation of privacy” test for the Fourth Amendment’s Search and Seizure Clause and the “endorsement” test for the First Amendment’s Establishment Clause.  These two stories might seem worlds apart, and they have not previously been systematically examined together.  Nevertheless, the Article argues that they have in common at least three important symptoms of our legal culture’s deep malaise.  These three phenomena occur in other contexts too.  But they appear with special clarity and a stark cumulative force in the two stories on which the Article focuses.

The most evident of these three common threads is a shallow and distracting focus on psychological reactions and affects.  Another is the doomed effort apparent in both contexts to ground legal values in empirical facts, an effort found in other current legal strategies such as “original public meaning originalism.”  The third is the failure to see that legal techniques that can make sense to solve hard cases at the edges of doctrinal categories must sometimes be distinct from the deeper principles that motivate and shape the categories themselves.

The Article examines the doctrinal development of both the “reasonable expectation of privacy” and “endorsement” tests.  It also contemplates their possible fates as each comes under increasing practical and conceptual pressure.  At the end of the day, the Article is in some respects a plea for at least a certain sort of legal formalism – not the illusory axiomatic, determinate, legal formalism, that was the straw man of legal realists, but a more modest yet self-confident formalism that understands law’s distinctive role, in concert with other normative languages, in both framing and shaping the world in which we live.

ABD HUKUKUNDA İSTİSNAİ HUSUSLAR
MAHREMİYET BEKLENTİSİ ve DARALTILMIŞ GİZLİLİK  PERSPEKTİFİ (1)
By Çiğdem Yorgancıoğlu
http://www.cigdemyorgancioglu.org/  @ LaPaloma68


How to write a legal memorandum American Style , Fourth Amendment , Fifth Amendment , Sixth  Amendment , 10 Commandment of Cross Examination hepsi 24-28 Temmuz 2017 tarihleri arasında her akşam 18.00-20.00 saatleri arasında Bahçeşehir Üniversitesi Hukuk Fakültesi organizasyonuyla ve Prof Dr Feridun Yenisey’in de katkılarıyla , Fakülte binasında  gerçekleşen “Introduction to American Law” dersleri esnasında Prof. Leslie Burton’ın işlediği ve naklettiği konulardı.

Günde ortalama  iki saatini, içinde mahkeme, hukuk uygulamaları, kriminal vaka analizi vb geçen film, belgesel ve Amerikan hukukundaki uygulamaları dramatize eden dizileri  izleyen ve aktarılan konulara özel ilgisi olan biri olarak; bahsi geçen konulara dair katkıların olumlu, verimli, fikir ve zihin açıcı  olduğunu düşünmekteyim. Bu bağlamda öncelikle  başta Prof. Leslie Burton ve  Prof Dr Feridun Yenisey olmak üzere bu organizasyonda emeği geçen herkese ve bizlerle iletişimi organize eden Ayşegül Atalay’a  teşekkür etmek isteri
It was my pleasure to get introduced to Prof.Leslie Burton during Introduction to American Law courses between 24th-28 th July 2017 organized by Bahcesehir Univesity Law Department and witnessed how she genuinely cared the audiences with a professional manner during the session. Me as a Court Cases - criminal movie and thrillers addicted person, she conjured up the images of the scenery of the several movies in my mind from OJ Simpson cases to Good Wife serials, from 12 Angry Man to Rainmaker, L’Amistad to Fugitive ,from Fried Green tomatoes to Jane Doe Case(The Many of Jane Doe Trial). Homeland to Prison Break ,From Jagged Edge to Atonmente, from Accused to Kidnapping Mr Heineken…. And more… . Thanks for all the contributors who put their valuable labor for the organization especially  to Prof.Leslie Burton, Prof Dr Feridun Yenisey and Miss Ayse Özge  Atalay. .        ******.Çiğdem Yorgancıoğlu-28 Jul2017İstanbul--

This monograph is a product of the Roscoe Pound lectures delivered at the University of Nebraska College of Law in 1974.  In it, Erwin Griswold reviews the ten search and seizure cases decided by the Supreme Court in 1972.  The search and seizure cases present constitutional issues laced with inseparable factual determinations.  But while search and seizure cases are the subject, Dean Griswold’s point is not with their dispatch.  The Fourth Amendment is not the object of examination, but rather an exemplar in a wholly different thesis—whether to create a National Court of Appeals.  This work is an important one if for no other reason than it utilizes a concrete problem of the Court to excite comment on a this significant issue.

There has been a growing interest in the use of antiepileptic drugs
(AEDs) for neuroprotection, and in the possible role of AEDs in
disease modification (i.e., antiepileptogenesis). Increased
understanding of the mechanisms underlying brain injury has led
to advances in the study of neuroprotection. However, defining the
clinical paradigm and selecting appropriate outcomes to detect
neuroprotective effects present challenges to clinicians studying
the neuroprotective properties of drugs. Established AEDs, such as
phenytoin, phenobarbital, and carbamazepine, have shown
neuroprotective activity in an ischemic/hypoxic model of neuronal
injury. Animal model studies also have suggested that newer
AEDs, such as levetiracetam, topiramate, and zonisamide, may
have neuroprotective or antiepileptogenic properties. However, the
prevention of epileptogenesis by an AED has yet to be
demonstrated in clinical trials. The future of neuroprotection may
involve established and newer AEDs, as well as other compounds,
such as immunophilins, caspase inhibitors, endocannabinoids, and
antioxidants.