Analysis and Commentary on Criminal Procedure

How Breast Exams Are Like Dog Sniffs

Cornell University law professor Sherry Colb compares medical screening tests with dog sniffs for narcotics with respect to their propensity to yield Type I errors—also known as false positives. In particular, Colb references Justice Souter’s dissenting opinion in Illinois v. Caballes, in which he opined that the possibility that dogs would incorrectly indicate the presence of narcotics and lead to an invasive search meant that such dog sniffs constitute searches for Fourth Amendment purposes.

What Will the Supreme Court Say About Searches of Hotel Guest Records?

Cornell University law professor Sherry Colb discusses a case in which the U.S. Supreme Court recently granted review to decide whether a Los Angeles municipal code violates the Fourth Amendment right against unreasonable searches and seizures. Colb argues that, much like general warrants of old, the provision in question empowers police to perform unreasonable searches in blatant violation of the Fourth Amendment.

Video-Recording Police–Citizen Encounters Is Necessary but Not Enough

In light of recent events in Ferguson, Missouri, Cornell University law professor Michael Dorf weighs the benefits and costs of equipping police officers with wearable cameras to record encounters with citizens. Dorf concludes that while there are some risks inherent in the practice, it would be a good first step toward reducing the frequency of tragedies resulting from police–citizen confrontations.

The Supreme Court Decides Riley v. California and Updates the Fourth Amendment

Cornell University law professor Sherry Colb discusses a recent case decided by the U.S. Supreme Court, Riley v. California, in which the Court nearly unanimously held that police may not examine the digital contents of an arrestee’s cell phone as part of a search incident to arrest. Colb describes the facts behind the two cases consolidated for the Court’s review, explains the precedents the Court relied upon in reaching its decision, and praises the Court for decisively embracing Fourth Amendment protection for digital privacy.

The U.S. Supreme Court Narrows States’ Discretion to Execute the Intellectually Disabled

Cornell University law professor Sherry Colb comments on a recent decision by the U.S. Supreme Court invalidating Florida’s approach to identifying criminal convicts who are intellectually disabled and therefore constitutionally ineligible for the death penalty. Colb describes the facts and issues that brought the case before the Court and infers from the opinion that the Court may have a growing consciousness about those sentenced to death. Acknowledging also the strong arguments presented by the dissent, Colb concludes that essential difference between the majority and the dissent is a disagreement as to what is worse: to execute the wrong person to spare the wrong person from execution.

Marijuana Legalization Regimes and the Evolving Fourth Amendment

Guest columnist and University of South Carolina law professor Seth Stoughton comments on the shifting marijuana laws throughout the United States and the implications for Fourth Amendment doctrine. Stoughton explains how marijuana laws in the United States have changed over time describes the resulting doctrinal uncertainty. He focuses specifically on the Fourth Amendment’s “automobile exception” in cases involving marijuana calls for legislatures and judges to clarify how police practices should be updated.

U.S. Supreme Court Considers Whether the Fourth Amendment Allows Reasonable Mistakes of Substantive Law: Part Two of a Two-Part Series of Columns

In the second of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her discussion of a Fourth Amendment case before the U.S. Supreme Court, Heien v. North Carolina. She explains the history and trajectory of the “good faith” exception to the exclusionary rule and predicts that the Court will apply that exception in this case. However, Colb suggests that even doing so might still narrow the scope of the Fourth Amendment’s protections as effectively as would deciding the case directly on the substance of the Fourth Amendment.

U.S. Supreme Court Considers Whether the Fourth Amendment Allows Reasonable Mistakes of Substantive Law Part One of a Two-Part Series of Columns

In the first of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb discusses a Fourth Amendment case in which the U.S. Supreme Court recently granted certiorari to resolve a circuit split. In that case, Heien v. North Carolina, the Court is considering whether the Fourth Amendment protects against stops by a police officer who acts on the basis of a reasonable but erroneous interpretation of state law. Colb reviews the facts of Heien, explains what “reasonable seizures” are under the Fourth Amendment, and describes the differences between legal and factual errors. The second column, which will appear on Verdict on May 5, will address the “good faith” exception to the exclusionary rule and the impact of a ruling on the basis of good faith.

The U.S. Supreme Court’s View of Consent in Fernandez v. California

Justia columnist and Cornell law professor Sherry Colb comments on the United States Supreme Court decision in Fernandez v. California, upholding the search of a co-occupied apartment upon the consent of just one of the residents. Colb notes that the case offers a refinement on an earlier decision that had invalidated a search to which one occupant consented, while the second occupant simultaneously objected.

The Supreme Court Considers What Role States May Play in Intellectual Disability Determinations

Justia columnist and Cornell Law professor Michael Dorf discusses an upcoming U.S. Supreme Court case addressing how to determine whether a criminal defendant is intellectually disabled and thus ineligible for the death penalty. Dorf explains the potentially far-reaching implications of the case, Hall v. Florida, and cautions that a ruling for Florida could undermine the uniformity of federal constitutional law.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in con... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavi... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior... more