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Abstract: Professor Burkoff contends that most people who purportedly "consent" to searches by law enforcement officers are not really - freely and voluntarily, as the Supreme Court decisional law supposedly requires - consenting to such searches. Yet, absent unusual circumstances, the great likelihood is that a court nonetheless will conclude that such consent was valid and any evidence seized admissible under the Fourth Amendment. Professor Burkoff argues, however, that the Supreme Court's 2006 decision in Georgia v. Randolph now dictates that the application of consent law doctrine should reflect the actual voluntariness (or involuntariness) of the questioned consents that come before the courts. In Randolph, the Court held dispositive the actual expectations that ordinary individuals have, albeit third-parties, when being asked to consent to a search. As a result, Burkoff concludes that a valid consent to search should no longer be deemed to have been freely and voluntarily tendered unless the consenting party is actually aware - whether or not he or she has been expressly warned - of the right not to consent.
consent, search, fourth amendment
Abstract: The important questions we need to ask and to answer B in the perilous times in which we live B is whether the Fourth Amendment applies in the same fashion not just to run of the mill criminals, but also to terrorists and suspected terrorists, individuals who are committing or who have committed B or who may be poised to commit B acts aimed at the destruction of extremely large numbers of people? Professor Burkoff argues that we can protect ourselves from cataclysmic threats of this sort and still maintain a fair and objective application of Fourth Amendment doctrine that respects our constitutional history. The Fourth Amendment applies to every search and seizure (including arrests) made by American law enforcement authorities or their agents. But the Fourth Amendment does and must apply as well in a way that includes unblindered sensitivity to and awareness of the context in which the law enforcement activities in question arise. Indeed, it must apply in this way if we are to be able to respond appropriately and effectively to the threats that now imperil us.
fourth amendment, search and seizure, terrorism, search warrants, Supreme Court, James Otis
Abstract: Criminal defense counsel's failure to move to suppress evidence allegedly obtained in violation of the Fourth Amendment may be the basis for an ineffective-assistance-of-counsel claim raised on appeal or in a petition for habeas corpus relief. The framework governing review of such claims is complex, however, and appellants' and petitioners' ineffective assistance claims are generally unsuccessful. Professors John and Nancy Burkoff discuss the recent decisional law on this subject.
right to counsel, ineffective assistance, sixth amendment, suppression motions, exclusionary rule
Abstract: Your accused client suddenly decides to cooperate with the government. This is not what you expected at all and, what's more, you are not so sure you want to keep representing a client who has made such a decision. So what can you do? What should you do? What do you have to do? Professor Burkoff discusses in this brief article the appropriate ethical obligations of a criminal defense attorney who finds himself or herself in this situation.
legal ethics, criminal defense, flippers, cooperation agreements
Abstract: This paper is an adaptation from a eulogy for Welsh White, an esteemed Criminal Procedure professor at the University of Pittsburgh School of Law.
Welsh White, Welsh S. White, Professor of Law, University of Pittsburgh School of Law, teacher, criminal procedure, memorial service, eulogy
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