Document Type

Article

Publication Date

2024

Keywords

privacy, policing technologies, ShotSpotter, facial recognition, predictive analytics, gunshot detection, search or seizure

Abstract

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests that hang in the balance. After revealing the infirmity of current case law, this Article argues for a doctrinal shift to require assessment of policing technology reliability as part of Fourth Amendment reasonableness determinations and offers a framework that would allow courts to do so. Such a shift may prevent further erosion of privacy rights, particularly for Black, Latine, and other marginalized communities subjected to rampant Fourth Amendment abuses. Recognizing that even a necessary doctrinal shift cannot resolve every concern related to ever-growing police reliance on automated technologies to justify seizures and searches, this Article also goes beyond a focus on doctrine to recommend targeted policy interventions where Fourth Amendment intrusions do not result in criminal litigation.

Publication Citation

73 Emory Law Journal 589 (2024)

Disciplines

Civil Rights and Discrimination | Constitutional Law | Criminal Law | Criminal Procedure | Evidence | Fourth Amendment | Law | Law and Society | Privacy Law | Science and Technology Law

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