Reynolds v. McNichols is a 1973 opinion from the Tenth Circuit Court of Appeals. Although the plaintiff was never convicted of prostitution or diagosed with an infection, she was held, examined, and involuntarily treated for sexually transmitted infections under the city of Denver’s “hold and treat” ordinance. The Tenth Circuit rejected her due process and equal protection challenges to the ordinance. In her feminist rewrite, Professor Wendy Parmet questions the health officials’ assumptions that female sex workers are “the primary source of venereal disease” and that the city can only protect the public’s health by forcibly treating them. She holds that the application of the ordinance to the plaintiff was discriminatory and that, under the circumstances, the defendants’ forced treatment of the plaintiff violated her right to privacy and their failure to obtain a warrant before forcing her to submit to a medical examination or remain in detention constituted an unreasonable search. In her commentary, Professor Aziza Ahmed situates the case in terms of historical responses to sex work under the banner of public health.

The Supreme Court provides cover for private actors who anonymously call 911 to report suspicious Black people to the police, and for the police who arrive with guns blazing.

Argued October 17, 1967.Decided December 18, 1967.

Mr. Justice CAPERS delivered the opinion of the Court.1

We are not precisely told how Charles Katz, the petitioner, came to the FBI’s attention as someone involved in illegal gambling. But clearly by early 1965, the FBI considered the petitioner a person worth keeping an eye on. What we are told is that starting around February 4, 1965, FBI agents began tailing the petitioner, and continued tailing him for about two weeks. Their surveillance of the petitioner, presumably without his knowledge, revealed that the petitioner had a daily habit of making telephone calls from a particular row of telephone booths on Sunset Boulevard in Los Angeles. Further investigation, presumably through the telephone company, revealed that the petitioner’s calls were placed to a number in Massachusetts, which number the FBI traced to a known gambler. Armed with this information, but lacking a warrant, the FBI secretly placed a recording device on top of the bank of phones the petitioner had been using.

Justice Marshall* delivered the opinion of the Court.

In this case, we decide whether it is consistent with the Fourth Amendment for a police officer who observed a traffic violation to use that violation as the justification to perform a racially-selective traffic stop, or as the pretext to investigate a crime for which the officer does not have probable cause. We answer that question in the negative.

Argued December 12, 1967.Decided June 10, 1968.

Mr. Chief Justice WARREN1 delivered the opinion of the Court.

Is the police practice known as “stop and frisk” constitutional? This case presents frisky questions about the power of police to cop a feel. Our decision is a minstrelsy in three acts, with elements of burlesque.

Argued November 2, 1999.Decided January 12, 2000.

Justice L. SONG RICHARDSON delivered the opinion of the Court*

The issue in this case is whether a person’s sudden and unprovoked flight from a clearly identifiable police officer, who is patrolling a high crime area, is sufficiently suspicious, without more, to justify a temporary investigatory stop pursuant to Terry v. Ohio. We hold that it is not.

While the previous Chapter explores the origins of cryptography and explains the functional features of Blockchain, this Chapter provides a robust discussion of the various legal challenges and arguments surrounding this novel technology. While self-regulating markets have some desirable aspects, the anonymous or pseudonymous feature of cryptocurrency has its drawbacks which can lead to more fraud and corruption if left completely unchecked. Primarily, this Chapter focuses on administrative law implications and addresses the question of who could (and should) regulate cryptocurrency markets. The answer depends on how digital assets are classified. For example, if the digital asset is labelled a security, it will fall under the regulatory authority of the SEC but will be limited by the Supreme Court’s decision in SEC v. Howey. Further, this Chapter analyzes the constitutional implications of cryptocurrency–do people have a constitutional right to privacy when making financial transactions? This Chapter discusses the various constitutional rights that may be implicated and the arguments that may be used in future litigation.

Crminal law cases in the Court typically arose out of the enforcement of Prohibition and mostly dealt with issues about searches, though the Court did issue one important decision on the general part of criminal law delineating the scope of the entrapment or government misconduct defense. With Prohibition discredited and repealed early in the decade, the Court’s decisions ordinarily found that the searches at issue were unlawful. Prohibition led to the rise of organized crime, and some of the Court’s decisions addressed and usually allowed legal strategies aimed at organized crime, although one important decision struck down a New Jersey statute penalizing membership in criminal gangs. The decisions sometimes led the Court to consider how the law should respond to technological innovations -- airplanes for one, but wiretapping a more important one. One theme surfaced on occasion: the importance of porfessionalism in the administration of criminal justice.

The April 2018 arrest of the alleged Golden State Killer has ignited law enforcement interest in using consumer genetics platforms to solve crimes. Proponents of using genetic genealogy to solve crimes have argued that the genetic data on which these identifications rely has been voluntarily uploaded and shared. But as this chapter exposes, this assertion of voluntariness is mistaken on both intrinsic and practical grounds when it comes to genetic relatives. Identifying genetic data is shared among genetic relatives involuntarily and immutably as a matter of biology. Such data is also shared in unmanageable ways in light of the extensive web of relatives whose DNA can be used to identify or learn about an individual. This chapter argues that the disjunction between potentially voluntary sharing of genetic data by consumer genetics users and the involuntary sharing imposed on their genetic relatives is both ethically and legally problematic. It then offers a path forward, drawing on a tenancy by the entirety framework from property law and the Supreme Court’s recent decision in the Carpenter case. This approach would permit law enforcement in some instances to use data stored on consumer genetics platforms–but only to seek direct identifications.

When police officers don’t order someone to stay and don’t frisk, civilians are legally allowed to walk away from officers who begin to question them. This right to walk away is pure legal fiction. Although the “free to leave” right is engraved in Supreme Court opinions, my Howard law students warned me that if we taught this during Know Your Rights trainings, we would endanger the teenagers. This legal fiction puts anyone approached by police officers in a lose–lose situation or “double bind.” If we don’t leave, we cannot complain later if it turns out the officer lacked a proper reason for the stop, and any evidence police find will be used against us in court. Yet, running from the police creates a possibility of being shot, and even walking away invites retaliation. We exercise our rights at our peril. Just as judges sometimes ask domestic violence victims “why didn’t you leave?” the Fourth Amendment demands that judges blame civilians for stopping and talking to police. Instead, the law should incorporate insights from the domestic violence advocates; namely, that the people stopped by police are in a better position to know whether it’s safe to leave than judges.

Chapter 6 lays out a continuum from lawful but awful frisks to sexual assault. I’ll never forget the male teenager who told me during a training that the last time he was frisked, “it felt like rape.” Sexual abuse of women and girls targeted for stops constitutes an enormous problem that’s rarely addressed. Likewise, police sexual misconduct is a huge hidden problem for men and boys. Courts mostly avoid mentioning the sexual aspect of patdowns, although the Supreme Court noted in Terry v. Ohio that a police training manual directed the officer to “feel with sensitive fingers every portion of the prisoner’s body. A thorough search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles.” This chapter illuminates the challenges that flow when courts categorize certain police actions as sexual abuse while omitting most sexual indignities from that category. If it feels like rape, it’s even more troubling when training manuals call for the maneuver and the Court approves it.

The Supreme Court mistakes submission for consent by constructing an alternative reality where police behave like the proverbial Officer Friendly. Court opinions direct judges to blame the victims of unconstitutional policing for submitting to police instead of exercising their rights. These fictions camouflage police aggression and racial profiling and allow it to thrive. Once we get rid of the consent doctrine, Terry v. Ohio must fall with it. The Supreme Court should review Terry’s balancing act, admit that the case was based on the false premise that people can choose not to cooperate, and this time include what we now know about the harms that flow from stop-and-frisk. Instead, the Supreme Court blew the chance in 2016 in Utah v. Strieff. Instead of overturning Terry, the Court expanded the government’s authority to control our liberty and our bodies. Because we can’t look to the courts to fix this, it’s more important than ever that readers recognize that stop-and-frisk leads the way in sapping constitutional rights. Legislators and progressive prosecutors, with the support of the public, can effectively abolish the “consent” excuse for violating the Constitution and end stop-and-frisk as we know it.

Some courts don’t recognize a right to silence during Terry stops. It’s legal now in some jurisdictions for police to arrest individuals for refusing to answer their questions. That’s court-approved retaliatory arrest. While the law governing pre-Miranda silence remains murky, the reality is clear: the teenagers we train can’t successfully invoke their right to silence during a stop-and-frisk without risking retaliation (whether legal or illegal). Court-sanctioned lies compound the difficulty in navigating police stops. When I train teenagers, my law students and I tell them that police are allowed to lie during Terry stops and at the police station. This fact confuses the teenagers we train. “If the officers will lie and say that I consent, why should I bother telling the officer that I don’t consent to searches?” Why learn one’s rights at all? As one teen put it, “The cop will just say I waived my rights no matter what I do.” Terry v. Ohio justified stop-and-frisk on the basis that police would use these stops to gather “voluntary” statements. But statements are not “voluntary” when made under threat. Once we acknowledge this, we see that Terry was built on a lie.

The Supreme Court excuses a range of unwelcome searches, even strip searches, because the victim did not resist. Feminist critiques of rape law shed a bright spotlight onto the deficiencies in the Court’s analysis of consent to search. In 2018, New York State recognized that any sex with an on-duty officer is inherently coercive. Under the new law, police officers can’t argue consent when they’re accused of on-duty rape. Eliminating the consent defense for sex recognizes that police hold all the cards. That’s an excellent step, but then why should the law allow that officer to claim that the civilian consented to a search of her body or purse? The situations involve the same unfair power differential. In both situations, police have the power to let you go or charge you, what to charge and whether to be rough or gentle. Ultimately, civilians submit to police because it’s the safest thing to do. Consent within the Fourth Amendment suffers from the same legal myopia as consent within rape law. In both instances, courts often blame the victim for their fate as a way to support dominance by the group that holds power.