Prof. MacDonnell on the Contraband Exception

Timothy MacDonnellProfessor Timothy C. MacDonnell, Assistant Clinical Professor of Law and Director of the Black Lung Legal Clinic, recently had his article, Orwellian Ramifications: The Contraband Exception to the Fourth Amendment41 U. Mem. L. Rev. 299 (2010), published in the University of Memphis Law Review.

In the article, Prof. MacDonnell discusses how courts have interpreted the Fourth Amendment as technology advanced and the government became capable of listening to and seeing into traditionally private places. Indeed, in Katz v. US, the Supreme Court changed from a test that asked whether there had been a physical invasion of an individual’s person, house, papers, or effects to one that asks whether the government invaded (physically or technologically) a place where an individual had a reasonable expectation of privacy. Courts have carved an exception to that rule: there is no expectation of privacy in contraband. The only articulated limitation to that exception is that the test or technique must only reveal the presence or absence of contraband.

The article examines the contraband exception, its potential ramifications, and at least one method of limiting its application. It begins by examining the history and development of the contraband exception. Next, Prof. MacDonnell describes how the Supreme Court created and refined the exception, expanding its application from airports, to the mail, to automobiles, and paving the way for its use in the home. Then, he discusses how federal and state courts have applied the contraband exception since Caballes in a variety of situations, such as traffic stops, mail inspections, and self-storage containers. Finally, Prof. MacDonnell examines those cases that have applied the exception to the home, where the greatest individual privacy exists. The article concludes with a discussion of two cases that have laid a foundation for limiting the contraband exception.

Congratulations to Professor MacDonnell.

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