Tag Archives: Fourth Amendment
How Mike Huckabee and Robert Bork Could Help Center Neil Gorsuch

Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.

What Is a Seizure, and What Is a Holding? The Court Hears Argument in Torres v. Madrid

Cornell law professor Sherry F. Colb comments on two particular aspects of a case in which the U.S. Supreme Court heard oral argument last month, Torres v. Madrid. First, Colb discusses the distinction, for Fourth Amendment purposes, between touching someone directly with one’s hands and touching someone indirectly using an inanimate object. Second, she explains the difference between holding and dicta in a court opinion. Using these two points as illustrations, Colb shows how flexible the Constitution can be, lending itself to very different interpretations.

Home Invasion: Warrantless Searches in Brazil and the United States

Igor De Lazari, a Brazilian legal scholar, and Antonio Sepulveda, Professor of Law at the Getulio Vargas Foundation (FGV) and at the Fluminense Federal University, offer a comparative analysis of warrantless searches in Brazil and the United States. De Lazari and Sepulveda call for guidance from each country’s high court to help clarify the law and facilitate uniform and predictable rulings on the constitutionality of certain warrantless searches.

The Third-Party Doctrine vs. Katz v. United States

Cornell law professor Sherry F. Colb proposes revising the third-party doctrine in a way that reconciles two of the U.S. Supreme Court’s decisions that some critics view as conflicting. Colb suggests that, contrary to what most critics argue and what she herself has long assumed, the prior decision, Katz v. United States rather than the later one, United States v. White, is the anomaly.

Is a Gunshot Wound a Seizure?

Cornell law professor Sherry F. Colb comments on a case in which the U.S. Supreme Court will consider whether a police officer who shot and hit a fleeing suspect “seized” that suspect, thereby triggering the Fourth Amendment, even though the wounded suspect escaped the police. Colb explains some of the arguments and predicts an outcome that would affirm precedents and offers a compromise between competing constitutional concerns.

The Court That Cried “Exigency”

Cornell law professor Sherry F. Colb and George R. El-Khoury, JD, comment on a decision by the U.S. Supreme Court last month applying the “exigent circumstances” exception to the warrant requirement to permit the admission in evidence of a blood-alcohol test administered on an unconscious driver. Colb and El-Khoury describe some of the problems with using the exigent circumstances exception to arrive at the result in this case and propose some alternative approaches that might yield the same outcome but for stronger reasons.

“Implied Consent” and the Fourth Amendment Go To the US Supreme Court

Cornell law professor Sherry F. Colb comments on a case the US Supreme Court recently agreed to review raising the question whether a state statute may constitutionally conduct a blood test on an unconscious driver suspected of drunk driving under a theory of “implied consent.” Colb explains the meaning of “implied consent”—deceivingly named, for there is no actual consent—and predicts that, consistent with the Court’s recent precedent on a similar issue, the state statute should be struck down.

Who’s a Good Boy? US Supreme Court Considers Again Whether Dog Sniffs Are Searches

Cornell law professor Sherry F. Colb comments on a case in which the US Supreme Court is considering whether to grant review that presents the question whether police must obtain a search warrant before bringing a trained narcotics dog to sniff at a person’s door for illicit drugs. Colb highlights some of the most interesting arguments on the issue and explains some of the nuances that make a clear answer more elusive in these cases.

Collins v. Virginia: An Innocuous, Fourth Amendment Decision About Curtilage

Cornell law professor Sherry F. Colb comments on the US Supreme Court’s precedents recognizing, yet not clearly defining, “curtilage”—the area near one’s house that is constitutionally protected against warrantless searches by law enforcement. As Colb explains, the Court’s cases involving curtilage, including its recent decision in Collins v. Virginia leave many Fourth Amendment questions unanswered.

Carpenter and the Beginning of the End of Privacy

Cornell law professor Sherry F. Colb comments on the US Supreme Court’s recent decision in Carpenter v. United States, in which the Court held that the government must have a search warrant to obtain an individual’s cell-site location information (CSLI). Colb describes the Court’s holding and the dissenting opinions, and considers the Court’s minority (but growing) view that only property, and not privacy, is protected under the US Constitution—particularly when privacy rights encompass the right of a woman to obtain an abortion and the right of same-sex couples to engage in private, consensual sexual acts.

Rental Cars, Privacy, and Suppression of Evidence

Cornell law professor Sherry F. Colb comments on the recent decision by the US Supreme Court in Byrd v. United States, in which the Court unanimously held that a lawful but contractually unauthorized driver of a rental car has a reasonable expectation of privacy against police searches of the car. Colb explains that the Court’s ruling is significant for more than its face value; it signals a rejection of property-linked formalism and bolsters the ability of the Fourth Amendment to keep certain types of police in check.

Why Justice Gorsuch May Have Avoided the Word “Privacy” at the Carpenter Oral Argument

Cornell University law professor Sherry F. Colb comments on the recent oral argument in Carpenter v. United States, in which the US Supreme Court will consider whether the Fourth Amendment requires the government to obtain a warrant before demanding that a cell phone service provider reveal location data about a target’s phone for a certain period of time. Colb notes that during oral argument, the Court’s newest justice, Justice Neil Gorsuch, conspicuously avoided using the word “privacy”—a choice that Colb suggests reflects his views on substantive due process and the rights that flow from that constitutional principle, such as abortion and physician assistance in dying.

The US Supreme Court Considers the Scope of the Automobile Exception

Cornell University law professor Sherry F. Colb comments on a case the US Supreme Court recently agreed to hear regarding the scope of the automobile exception to the Fourth Amendment warrant requirement. Colb explains the facts leading up to the controversy, the arguments on both sides, and the unusual nature of the case. Colb points out that the Court was likely motivated to hear the case to resolve a question the case does not even squarely present, namely whether the presence of a car in a driveway is a reason not to apply the automobile exception.

Supreme Court Considers Whether to Grant Privacy to Cell Tower Location Records

Cornell University law professor Sherry F. Colb considers the reasoning behind an appeals court's allowing law enforcement to acquire, without a warrant or probable cause, cell phone records that include a user’s approximate location over a period of several months. Colb expresses relief that the U.S. Supreme Court has decided to consider the issue so that we can know whether, by using a cell phone, we are thereby exposing our location to the police (and not just to our wireless service providers).

Do Fourth Amendment Protections Vanish After an Indictment? The Manuel v. Joliet Case on the Supreme Court’s Docket

University of Illinois Law dean and law professor Vikram David Amar comments on a case in which the Supreme Court heard oral arguments this week. In that case—Manuel v. Joliet—the Court will consider whether an individual’s Fourth Amendment right against unreasonable seizure continues after an indictment has issued, thereby allowing a malicious prosecution claim based on the Fourth Amendment. Amar argues that the case highlights some unusual features of Supreme Court practice, as well as some important aspects of constitutional law.

Is Taking Blood from a Dog a “Search” of the Dog’s Owner?

In light of a recent decision by the Oregon Supreme Court, Cornell University law professor Sherry F. Colb considers whether taking blood from a dog constitutes a search of the dog’s owner for Fourth Amendment purposes. Colb identifies good and bad features of the court’s opinion and expresses what, in her view, would have been the ideal resolution of the case.

Birchfield v. North Dakota: An Acceptable Compromise

Cornell University law professor Sherry F. Colb comments on the U.S. Supreme Court’s recent decision in Birchfield v. North Dakota, in which the Court held that states may criminalize the refusal to take a breathalyzer test but may not criminalize the refusal to take a blood test, absent a warrant, as an ordinary incident of an arrest for driving while impaired. Colb explains why the Court distinguished the two types of tests and argues that the decision effectively balances competing interests in public safety and individual privacy.

A Potential Landmine in Waiting in Utah v. Strieff

Cornell University law professor Sherry F. Colb discusses the U.S. Supreme Court’s recent decision in Utah v. Strieff, holding that evidence found in that case as a result of a Fourth Amendment violation was not the direct consequence of the violation and was therefore properly admitted into evidence against the defendant under the attenuation doctrine. Colb explains how one throwaway line in the opinion, if taken to its logical conclusion, could potentially spell the death of the exclusionary rule.

When Illegal Stops Lead to the Discovery of Outstanding Warrants: Utah v. Strieff

Cornell University law professor Sherry F. Colb comments on a case currently before the U.S. Supreme Court, in which the Court will decide whether evidence located during a search incident to arrest after an unlawful stop will be admissible in evidence against the arrestee. Colb discusses this and also the broader question of the future role of the exclusionary rule in the law of the Fourth Amendment.

The Second Circuit Honors the Threshold of the Home in a Fourth Amendment Opinion

Cornell University law professor Sherry Colb discusses a decision by the U.S. Court of Appeals for the Second Circuit holding that when police are outside the threshold of a home arresting a suspect who is inside the threshold, it is a “home arrest” requiring a warrant. Colb explains why the decision is significant in protecting the home as a space where a person can feel the highest degree of privacy and comfort, free from unreasonable government intrusions.

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... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... 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... more

John Dean
John Dean

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

Michael C. Dorf
Michael C. Dorf

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

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... 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... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

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

Austin Sarat
Austin Sarat

Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

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