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Showing papers in "Santa Clara law review in 2010"



Journal Article
TL;DR: In this article, the authors focus on the question of whether and under what circumstances evidence of a cellular phone's contents obtained without a warrant should be admitted in trial against a criminal defendant, and propose a new standard for drawing the line between what information law enforcement officers may and may not, obtain from a traditional cellular phone without first securing a warrant.
Abstract: In an age where life before cellular phones seems like the distant past, the legal issues that accompany their widespread use are still largely undeveloped. Further, as cellular phones constantly develop into more powerful and functional instruments, the legal issues become more complex. The capacity of cellular phones to serve not only as communication devices, but also as storage devices, raises in the criminal procedure context important Fourth Amendment questions involving privacy, law enforcement necessity, and the reasonableness of searching a cellular phone’s contents.This article focuses on the legality of the search of a cellular phone’s contents under the Fourth Amendment. In particular, it addresses whether and under what circumstances evidence of a cellular phone’s contents obtained without a warrant should be admitted in trial against a criminal defendant.The article first lays the ground work by distinguishing between various types of information stored on a cellular phone. It then moves into an analysis of whether the owner of a cellular phone has a reasonable expectation of privacy in the various forms of information stored on the phone. Next, it examines the jurisprudential trend toward allowing evidence of a cellular phone’s contents, obtained without a warrant, to be admitted at trial based largely on the search incident to arrest and exigent circumstances exceptions to the warrant requirement. A new standard is then proposed for drawing the line between what information law enforcement officers may, and may not, obtain from a traditional cellular phone without first securing a warrant. Finally, the article turns attention to the development of smart phones. Understanding that these smart phones more closely resemble computers than older generation cellular phones, a different standard is offered for when the search of a smart phone’s contents would be appropriate under the Fourth Amendment.

5 citations





Journal Article
TL;DR: A survey of state cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues as mentioned in this paper, showing that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring and less restrictive means.
Abstract: Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a serious, non-deferential standard of review. District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of "police power," are inappropriate in Second Amendment interpretation. This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment. Available at SSRN: http://ssrn.com/abstract=1542544 Language: en

2 citations


Journal Article
TL;DR: The authors argue that hip hop lyrics and their cultural accoutrements turn U.S. punishment philosophy upon its head, effectively defeating the foundational purposes of American crime and punishment, and argue that Hip hop music and culture profoundly influences attitudes toward and perceptions about criminal justice in the United States.
Abstract: I argue that hip hop music and culture profoundly influences attitudes toward and perceptions about criminal justice in the United States. At base, hip hop lyrics and their cultural accoutrements turns U.S. punishment philosophy upon its head, effectively defeating the foundational purposes of American crime and punishment. Prison and punishment philosophy in the U.S. is based on clear principles of retribution and incapacitation, where prison time for crime should serve to deter individuals from engaging in criminal behavior. In addition, the stigma that attaches to imprisonment should dissuade criminals from recidivism. Hip hop culture denounces crime and punishment in the United States in a way that essentially defies the underlying crime and punishment philosophy adopted and championed by U.S. legislators for decades. Hip hop artists, since the inception of hip hop as a musical genre, have rhymed in a narrative format that starkly informs all listeners and fans that the entire foundational regime of prison for crime in the United States is suspect, illegitimate and profane. As U.S. criminal law and punishment is profane and illegitimate to many, as hip hop artists fiercely argue, then the primary foundational underpinnings of U.S. criminal justice is lost on the hip hop generation, that of deterrence and stigma. Because, as hip hop aggressively describes, crime and punishment in the U.S. is fundamentally unfair, inequitable and biased against people of color and the poor, then punishment for committing certain crimes in America is viewed by the hip hop nation as illegitimate and imprisonment for committing suspect crimes is unaffecting. Hip hop culture has engendered in the global hip hop generation a tradition of exposing racial inequality and social injustice throughout the world, but particularly within the United States. To that end, this Essay argues that much like Critical Race Theory espouses a tradition of 'looking to the bottom,' that American purveyors of crime and punishment law consider the viewpoint of the hip hop nation, which espouses a better, more equitable theory of punishment and justice in the United States.

2 citations



Journal Article
TL;DR: In this paper, the authors re-examine the apparent anomaly that trial-level defense attorneys claim they care neither about guilt nor innocence, and explain why excellent counsel for all, not just the apparently innocent, should be strongly supported by innocence advocates.
Abstract: At a time of special concern for the innocence, this article reexamines the apparent anomaly that trial-level defense attorneys claim they care neither about guilt nor innocence. Innocence currently fuels procedural reforms benefitting criminal defendants, but that effect could change, and innocence might become a wedge issue dividing progressives if reforms promise targeted protection for the innocent. Defense counsel attitudes about the irrelevance of innocence seem to invite such division. I explain why excellent counsel for all, not just the apparently innocent, should be strongly supported by innocence advocates.Defense counsel institutionally cannot allow apparent guilt to affect their zealous representation. Although special treatment for those perceived innocent could likewise devolve into second-class representation for many, the problem with special care for the apparently innocent is less institutional than practical. Virtually all those charged with serious crimes assert innocence to their attorneys, who possess no reliable way to determine truth in seriously contested cases. Nevertheless, defense attorneys actually do react differently when they believe they have encountered innocence. The hard-boiled defense attorney's unconcern with innocence is largely necessary but not fully accurate.I find no "magic bullet" to allow defense attorneys to focus on the likely innocent, only tolerable compromises. Those committed to protecting the innocence should vigorously support adequate resources for defenders who represent the unsorted mass of criminal defendants. Such defenders provide the best hope for many innocent defendants who, lacking clear proof of innocence, are hidden among the guilty.

1 citations






Journal Article
TL;DR: In this paper, the original meaning of diversity as articulated by Justice Lewis F. Powell, Jr. in Regents v. Bakke is recovered, and the key to new ways of thinking about diversity generally in university admissions.
Abstract: Though diversity remains a compelling state interest, recent rulings like Ricci v. DeStefano and Parents’ Involved toll a menacing bell for schools employing racial classifications to admit minority students. Yet, defenders of diversity may find refuge in original meanings, particularly the original meaning of diversity as articulated by Justice Lewis F. Powell, Jr. in Regents v. Bakke in 1978. Virginian by birth, Powell’s interest in “genuine diversity” coincided with a forgotten version of pluralism extant in the American South during the first half of the Twentieth Century. Further, Powell’s conviction that diversity distinguished America coalesced during a trip to the Soviet Union in 1958. Recovering Powell’s pluralism not only sheds new light on the Justice, but might hold the key to new ways of thinking about diversity generally in university admissions.

Journal Article
TL;DR: In this paper, the authors argue that the use of coerced informants violates the Thirteenth Amendment's prohibition on involuntary servitude, and that there are adequate alternatives to facilitate criminal cooperation that will not hamstring law enforcement efforts.
Abstract: This Article explores what limits the Thirteenth Amendment’s prohibition on involuntary servitude places on the government’s use of informants in criminal investigations. Informants are a crucial part of all law enforcement efforts and a keystone in the investigation and prosecution of organized crime syndicates and “victimless” crimes, such as narcotics trafficking, prostitution, and gambling. While many informants merely provide previously-obtained information to the police, others take more active roles in assisting law enforcement, engaging in controlled drug buys, wearing wires, or infiltrating criminal organizations. This latter group of “active informants” is the most useful to law enforcement because they work under police direction to obtain hard evidence of criminal conduct. Though active informants cooperate for many reasons, most assist the police out of fear that if they refuse, they will be subject to criminal prosecution or more severe punishment. This Article argues that by compelling these “coerced informants” to work under such a threat, the government violates the Thirteenth Amendment’s prohibition on involuntary servitude.As a doctrinal matter, compelling coerced informants to serve under threat of criminal sanction fits the Thirteenth Amendment’s definition of involuntary servitude. Moreover, the use of coerced informants offends the free labor principles that animated the passage and ratification of the Thirteenth Amendment and underlie the Supreme Court’s Thirteenth Amendment jurisprudence. Though recognition that the use of coerced informants violates the Thirteenth Amendment may require significant changes to law enforcement practices, there are adequate alternatives to facilitate criminal cooperation that will not hamstring law enforcement efforts. In fact, these alternatives will ultimately strengthen other constitutional protections and ameliorate some of the negative societal effects on high-crime neighborhoods of the widespread use of informants.