In 2018, the Supreme Court decided in Carpenter v. United States that the government requires a search warrant to access seven days or more of certain location data that comes from mobile devices. In 2020, however, news broke that different government agencies had purchased location data from data brokers and used them for law enforcement purposes. Because the Fourth Amendment does not regulate open market transactions, it is now an open...
Fourth Amendment
Issues relating to disability are undertheorized in the Supreme Court’s Fourth Amendment jurisprudence. Across the lower courts, although disability features prominently in excessive force cases, typically involving individuals with psychiatric disabilities, it features less prominently in other areas of Fourth Amendment doctrine. Similarly, scholars have yet to substantively address how the Fourth Amendment’s vast scope of police discretion...
In Graham v. Connor, the Supreme Court held that a Fourth Amendment reasonableness standard governed the analysis of any allegation that a law enforcement officer used excessive force during an arrest or investigatory stop. In particular, courts were to evaluate the reasonableness of the need to use force from the perspective of a hypothetical reasonable police officer at the scene. While this test seems straightforward, the Supreme Court...
In 2005, the Immigration and Customs Enforcement (ICE) agency enacted a policy sanctioning its civil ICE agents to use strategic deception, known as “ruses,” to facilitate community immigration enforcement operations. This policy provided agents a means to overcome the limitation that civil immigration arrest warrants are administrative as opposed to judicial in nature, which effectively precluded agents from entering a target’s home without...
Federal law enforcement’s deployment of malware (Network Investigative Technique, or NIT) raises a jurisdictional question central to remote searches of electronic data: Where does the search occur?
Litigation arising from two prominent NIT searches—Operations Pacifier and Torpedo—illustrates the challenge courts confronted in defining the...
To determine whether there has been a violation of the Fourth Amendment, courts must first analyze whether there has been a “search” or “seizure.” Current doctrine offers two methods of identifying a “search”: the trespassory test and the Katz test. Scholars have criticized the Katz test, which asks whether an individual has a reasonable expectation of privacy, as being difficult to apply. In Carpenter v. United States, Justice Gorsuch...
County of Los Angeles v. Mendez, the Supreme Court’s recent decision rejecting shooting victims’ excessive force claims, has been written off as yet another case in which police violence has no civil rights consequences. The Court found that the deputies who shot Jennifer Garcia and Angel Mendez fifteen times used reasonable force because Mendez was holding a BB gun. But the deputies barged in on Garcia and Mendez while they were napping...