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Session Summary – When Time Flies: The Past, Present, and Future of the Fourth, Fifth, and Sixth Amendments

Submitted by Corinna Lain

Three-hour long discussion sessions at SEALS are always a bit tricky—it’s fun to get with old friends and make new ones, and fun to brainstorm ideas and geek out on the law, but that’s a loooong time to talk about stuff, even stuff that’s interesting. Sometime after the first hour of these sessions, I usually end up excusing myself to grab coffee, use the bathroom, or just pretend like I’m doing one of those things while I’m really checking my phone.

Not this time. Never has time in a discussion session flown by so quickly. Huh. Who knew. I thought that the session might go slower (not a function of the people, but of our inevitable virtual setting) but instead the time flew by. The ideas were interesting, the conversation was engaging, and our moderator, Suparna Malempati (John Marshall Law School), did a great job of moving us along. Here’s the scoop for those who missed it:

Eang Ngov (Barry Law School) got us started with her work-in-progress on the third party doctrine and commercial relationships. The third party doctrine started out in the context of fake friends, Ngov points out, and she made a strong argument that it should stay that way. We should go back in time and return to the doctrine’s roots, limiting the doctrine’s application to personal relationships.

Yours truly followed since I didn’t actually have a work-in-progress, and wanted to make everyone else feel better about theirs. At least I have more than she does, I figured other panel participants could say. I wanted to talk about Portland, so that’s what I did, raising questions about jurisdiction and whether a literal show of authority was required for a constitutional show of authority. The comments were terrific. I might just have to actually write a paper on this now.

Melanie Wilson (Tennessee—Go Big Orange) followed with a fascinating discussion on the institutional side of covid-19’s impact on jury trials. Whereas most people are thinking about how the right to a jury trial and other trial rights cash out for defendants in a covid-19 world, Wilson turned our attention to systemic problems in the right itself. What happens, for example, if the people who show up for jury service are the people least concerned about the virus? One might readily imagine a world where juries become even whiter than they are now, and skew sharply republican too (not trying to disparage republicans here, just going off the data showing that what people think about the virus tends to be sharply divided along party lines). This and other questions made for a super interesting discussion and we all encouraged Wilson to go forth and write.

Next came Brian Owsley (University of North Texas at Dallas), who taught us (or at least me) about cell site simulators and all the scary things that the government can do in information sweeps that are much like general warrants but, at least under current doctrine, don’t seem to fall under the Fourth Amendment at all. I’m too traumatized to discuss this further, you all need to ask Brian about this intriguing project yourselves.

Jennifer Moore (Desales University) then shared her latest project, asking the age old question: to sniff or not to sniff? Jennifer showed pictures of cute canines trained to ruin a drug-dealer’s day, and pondered whether the Supreme Court’s latest statement about drug dogs in Rodriguez had lessons to offer that went beyond dogs and beyond vehicle stops. The short answer is yes, and a lively discussion ensued.

Terrance Cain (University of Arkansas at Little Rock) came next, and bless his heart (I’m not from the South but I think that’s what one says), his project makes an argument that, as he says, no less than 11 courts have considered, and every one of them has ruled against him. Cain argues that the license plate readers that police use create a database of information that humans couldn’t readily compile on their own, and so even though police might be able to look up one license at a time, the use of these readers gives them an information capacity much more like the caches of information we have seen where the Supreme Court has recognized a search. It’s a twist on the mosaic theory of the Fourth Amendment, and was fodder (again) for a lively discussion.

Cain’s colleague Nicholas Kahn-Fogel (University of Arkansas at Little Rock) went next. By now, we’re in the third hour of the discussion group, and Kahn-Fogel had been making all sorts of insightful comments all along. I was really curious as to what he was going to say, and wasn’t disappointed. He talked about the somewhat psychotic relationship between bright lines and totality-of-the-circumstances doctrines under the Fourth Amendment, and how what seems like two extremes are actually pretty close together, and even merge in cases that seem to create a presumption with just a few facts. The reality of Fourth Amendment doctrine differs from the rhetoric, he pointed out, and argued why at least sometimes this makes a lot of sense. Super interesting stuff. Mostly we just said, oh cool, and nodded along.

Adam Gershowitz (William & Mary) brought the discussion to a close with a fascinating take on nervousness as a factor in the reasonable articulable suspicion analysis under Terry. Gershowitz framed the discussion by first conceding that the Supreme Court has said nervousness without more cannot justify reasonable suspicion, then proceeded to show us how other factors that are combined with nervousness have justified police action, but those other factors are essentially a by-product of nervousness. In about five minutes, he took down a good chunk of the Supreme Court’s cases because, well, that’s just how Gershowitz rolls.

At this point, three hours had passed and the Steering Committee had started, so I had to leave our zoom discussion. But it’s worth another shout-out to Suparna Malempati (John Marshall Law School) here—she was a fantastic moderator, and as far as I know, she didn’t get to present. She just supported others, a testament to her generosity as a colleague in the academy. She’s also the one who got us together in the first place.

So thanks Suparna! Next time, you’ll have to go first.

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