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The Fourth Amendment with a New SCOTUS Nominee - Criminal Justice News

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Criminal Justice News


Posted on: Aug 19, 2018

By Bo Rivas, Huelskamp & Associates

Opinions in this article are those of the author.

On Monday, July 9, 2018, President Donald Trump announced his nominee to replace the retiring Justice Kennedy, who announced he would retire at the end of July. The highly-politicized issues (abortion, gun regulation, religion, separation of power) have made all headlines since Judge Brett Kavanaugh’s nomination announcement.

Although Judge Kavanaugh has been deemed a “conservative” judge who has a record of fighting for the rights under the Second Amendment, not much is mentioned about his stance on the Fourth Amendment, which deals with police-citizen interactions and effects most criminal issues. A quick Lexis search for decisions by Judge Kavanaugh on Fourth Amendment protections brought very few cases on point. 

I have listed some relevant cases below that deal with Fourth Amendment protections from the 12th Circuit Appeals Court, from when Judge Kavanaugh presided. Although his record may not be 100% indicative of his future actions, were he to be confirmed by the Senate, his responsibility on the Supreme Court would be much more significant, and this ought to be a part of the discussion happening in our society today. 

Cases where Judge Kavanaugh sided with Majority

Kaemmerling v. Lappin, 384 U.S. App. D.C. 240, 553 F.3d 669 (2008)
A decision affirming the lower Court’s decision that the Fourth Amendment allows DNA to be collected from certain people including people who are incarcerated. 

United States v. Bullock, 379 U.S. App. D.C. 114, 510 F.3d 342 (2007)
A decision affirming the lower Court’s decision that the Fourth Amendment permits an officer to stop a citizen, order them to get out of the car, frisk them, and conduct a limited follow-up search if they have committed a traffic offense, without requiring much else. 

United States v. Vinton, 389 U.S. App. D.C. 199, 594 F.3d 14 (2010)
A decision affirming the lower Court’s decision that the Fourth Amendment permits an officer to stop a citizen who commits a traffic infraction, to conduct a limited follow-up search, and if the officer sees a weapon in plain view while investigating the traffic offense, he may search the car, in the name of officer safety. 

United States v. Spencer, 382 U.S. App. D.C. 90, 530 F.3d 1003 (2008)
A decision affirming the lower Court’s decision that the Fourth Amendment probable cause requirement is met when Police arrest a defendant with drugs in his
car, and get a warrant to search his house. 

United States v. Washington, 385 U.S. App. D.C. 144, 559 F.3d 573 (2009)
A decision affirming the lower Court’s decision that the Fourth Amendment is not violated when Police officer has
reasonable fear for their safety and searches a defendant who demonstrates a nervous demeanor, and reaches under seat, and provides a non-credible answer as to why, and all while in a high-crime area. 

Cases where Judge Kavanaugh sided with the Dissent

United States v. Jones, 393 U.S. App. D.C. 194, 625 F.3d 766 (2010)
Dissent of the Court’s decision affirming the lower Court’s decision that the Fourth Amendment was violated when the government used a warrantless use of a GPS device for four weeks, citing Supreme Court precedent. 

United States v. Askew, 381 U.S. App. D.C. 415, 529 F.3d 1119 (2008)
Dissent of the Court’s decision reversing the lower Court’s decision that the Fourth Amendment was violated when police officers unreasonably searched a citizen. His reasoning is similar to that in Bullock. 

If you would like to submit content or write an article for the Criminal Justice Section, please email Kara Sikorski at ksikorski@indybar.org.

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