Warrantless “Across the Threshold” Arrest: Arrest of Defendant in Defendant’s Doorway

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

Early Fourth Amendment jurisprudence originally focused on whether a common-law trespass had occurred.[1] Now, the Supreme Court no longer requires an individual to prove that a property trespass occurred before asserting that their Fourth Amendment rights were violated.[2] However, the ancient connection between a person and their home still warrants significant Fourth Amendment protection. The Fourth Amendment respects that connection and affords protection to houses, persons, papers, and effects, with the home being first amongst equals.[3]

In New York v. Payton, the Court held that, absent a warrant or exigent circumstances, the Fourth Amendment prohibits law enforcement from nonconsensual entry into a suspect’s home in order to make an arrest.[4] Currently, a disagreement between circuits exists on whether Payton should extend to instances where the officer makes an arrest without physical intrusion into the home. The Second Circuit recently extended Payton’s protections to include instances where an officer, without physical entry into the home, arrests a home-dweller.[5] Other circuits reviewing this issue have two schools of thought. The Eleventh, Seventh, and Fifth Circuits have held that there is no Payton violation without physical intrusion into the home by law enforcement.[6] Alternatively, the Ninth, Sixth, and Tenth Circuits have held that a Payton violation may occur if law enforcement engages in coercive behavior, while still not physically entering the house, to arrest the home-dweller.[7] Ultimately, courts should follow the Second Circuit’s rule and base Payton analysis on the location of the defendant rather than law enforcement, as it better protects the individual right to privacy within the home. Continue reading “Warrantless “Across the Threshold” Arrest: Arrest of Defendant in Defendant’s Doorway”

Ohio Clarifies: Law Enforcement Cannot Conduct Unjustified Search of Vehicle Subsequent to a Recent Occupant’s Arrest   

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

Under the Fourth Amendment, absent an impartial and neutral judge or magistrate, warrantless searches are unconstitutional, subject to only a few exceptions.[1] Leak examined two such exceptions—a search incident to a lawful arrest and inventory searches done pursuant to law enforcement’s community-caretaking function. Continue reading “Ohio Clarifies: Law Enforcement Cannot Conduct Unjustified Search of Vehicle Subsequent to a Recent Occupant’s Arrest   “

Governmental Invasion of Privacy: Warrantless Cellphone Tracking

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

Cell phone use is now an essential part of daily life. Individuals use cell phones for entertainment, business, and as their main source of communication. The Stored Communications Act (“SCA”) allows a court to issue an order compelling third-parties to disclose stored electronic records to the government so long as the government reasonably believes that the records are relevant to a criminal investigation.[1] However, the standard for securing a traditional warrant—probable cause—is markedly higher than the SCA’s reasonable belief standard. Continue reading “Governmental Invasion of Privacy: Warrantless Cellphone Tracking”

Unwarranted Amendments: Criminal Procedure Rule 41 Alteration Goes Too Far

Author: Jon Kelly, Associate Member, University of Cincinnati Law Review

The state of modern technology has created many challenges for the existing legal framework.[1] The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (Advisory Committee) is currently deliberating two proposed changes to the search and seizure requirements of Federal Rule of Criminal Procedure 41. The changes, if enacted, would allow courts to issue search warrants permitting the remote access, search, and seizure of electronic data when the location of the targeted computer or server is not identifiable. The Department of Justice (DOJ) has argued that these changes only address jurisdictional issues created by anonymous computer attacks.[2] However, Google is among those arguing against the amendments, claiming that the new rule would threaten Fourth Amendment protections and that the issue is better left to Congress.[3] Google’s concerns are valid; the amendments to Rule 41 give little assurance that warrants authorized under the new rule would remain limited. The amendments threaten Fourth Amendment protections and compromise diplomacy with foreign nations without offering any safeguards to assuage these concerns. Therefore, the amendments should be rejected and the issue left to Congress, where there can be a more rigorous discussion of the merits and the addition of proper safeguards should the rule be approved.

Continue reading “Unwarranted Amendments: Criminal Procedure Rule 41 Alteration Goes Too Far”

Warrantless Searches for Probationers: The Reasonableness of SCOTUS’s Balancing Test

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

When convicted felons are released on probation, may officers conduct a warrantless search of their homes without violating any constitutional rights protected under the Fourth Amendment? The Supreme Court, by conducting a balancing test, holds that officers may do so when they have a “reasonable suspicion” that probationers are violating their probation conditions; a standard of protection lower than the “probable cause” standard that protects fully free citizens from warrantless searches.[1] The specific fact-pattern before the Court that prompted this rule, however, involved a probation condition that explicitly stated a probationer will be subject to warrantless searches.[2]

But when the probationary condition is less explicit and merely subjects the probationer to unannounced home visits at any time, does the Court’s balancing test still apply, or does the legal analysis change? A current circuit split exists regarding that precise issue—the Fourth Circuit finds such warrantless searches based on a “reasonable suspicion” categorically unlawful, while the Eleventh Circuit permits them when they satisfy the Court’s balancing test.[3] Although the courts’ different interpretations are sensible, as a public policy matter, the Eleventh Circuit’s interpretation should be adopted because it better promotes the rehabilitative and societal-protective purposes of releasing individuals on probation.

Continue reading “Warrantless Searches for Probationers: The Reasonableness of SCOTUS’s Balancing Test”

Can Police Dogs Search Your Car Without an Officer’s Reasonable Suspicion?

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

Imagine being pulled over for a small traffic violation. Despite lacking a reason for suspicion, the police officer decides that you look like someone who might have something illegal in the car. Then, you wait for the K9 unit to get to your car (ten minutes, twenty minutes, or longer), the search turns up nothing, and you are free to go. While to some, this intrusion is a slight annoyance, to others, this search could have vast consequences for the rest of their lives if the illegal search produces contraband. The Supreme Court has held that a K9 drug sniff does not constitute a search, but has left the question open for how long a traffic stop can be delayed for a K9 unit, stating only that the delay must be “reasonable.”[1] An expansion of the definition of what is a “reasonable” delay has major consequences, and has the potential to turn any traffic stop into a witch-hunt for drugs. This scenario is a potential result of the Supreme Court’s anticipated ruling in Rodriguez v. United States. The Eighth Circuit Court of Appeals held in United States v. Rodriguez that following the completion of a traffic stop, it was permissible under the Fourth Amendment for a police officer to make a driver wait while a dog was employed to sniff his car, despite the officer’s lack of reasonable suspicion that the car contained contraband.[2] The court held that the search was constitutional because it was merely a “de minimis” intrusion on the defendant’s rights.[3]

Fortunately, the Supreme Court has the opportunity correct the Eighth Circuit’s decision and protect Americans’ right against unreasonable searches. The Supreme Court should rid appellate courts of the “de minimis” doctrine with regards to the Fourth Amendment because any intrusion on the fundamental rights of American citizens—such as the protection against unreasonable searches and seizures—is an unacceptable intrusion, regardless of the degree of infringement. Moreover, the “de minimisstandard is an unworkable one where no-bright line rule can exist with practicality. The standard is ambiguous and leaves too much leeway for officers to intrude on the privacy of citizens, and so must be rejected.

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No “Good-Faith” Required: The Broad Interpretation of the Davis Good-Faith Exception to the Exclusionary Rule

Author: Cameron Downer, Associate Member, University of Cincinnati Law Review

On June 16, 2011, the United States Supreme Court in Davis v. United States expanded the application of the good-faith exception to the Fourth Amendment exclusionary rule.[1] The Court held that the exclusionary rule does not apply to Fourth Amendment violations when officers act in objectively reasonable reliance on binding precedent that is later overturned.[2]

The ambiguous holding in Davis failed to give a bright-line rule to help courts determine whether the good-faith exception should apply. Instead of applying the more equitable narrow interpretation, some courts are applying an overly broad interpretation of Davis that allows officers to pick and choose what law to rely on in justifying their police practices. That interpretation of Davis has led to the inequitable adjudication of Fourth Amendment violations and is converting Fourth Amendment rights into a “mere form of words.”[3] As a consequence, with the development and use of new police technology, the broad interpretation of the exclusionary rule will leave people vulnerable to Fourth Amendment violations without the right to a remedy.

Continue reading “No “Good-Faith” Required: The Broad Interpretation of the Davis Good-Faith Exception to the Exclusionary Rule”