Daily Archives: June 24, 2022

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the use of the writs of assistance. But though the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the colonies late and as a result of experience, there was also a rich English experience to draw on. Every mans house is his castle was a maxim much celebrated in England, as Samans Case demonstrated in 1603. A civil case of execution of process, Samans Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the Kings agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the Kings process. Most famous of the English cases was Entick v. Carrington, one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes polemical pamphlets attacking not only governmental policies but the King himself.

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets, and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive of all the comforts of society, and the issuance of a warrant for the seizure of all of a persons papers rather than only those alleged to be criminal in nature contrary to the genius of the law of England. Besides its general character, the court said, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a great judgment, one of the landmarks of English liberty, one of the permanent monuments of the British Constitution, and a guide to an understanding of what the Framers meant in writing the Fourth Amendment.

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize prohibited and uncustomed goods, and commanding all subjects to assist in these endeavors. Once issued, the writs remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism. Otis lost and the writs were issued and used, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

The language of the provision that became the Fourth Amendment underwent some modest changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madisons introduced version provided The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized. As reported from committee, with an inadvertent omission corrected on the floor, the section was almost identical to the introduced version, and the House defeated a motion to substitute and no warrant shall issue for by warrants issuing in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision.

As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendments two clauses must be read together to mean that the only searches and seizures which are reasonable are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are reasonable searches under the first clause that need not comply with the second clause. This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute that has run most consistently throughout the cases involving the scope of the right to search incident to arrest. Although the right to search the person of the arrestee without a warrant is unquestioned, how far afield into areas within and without the control of the arrestee a search may range is an interesting and crucial matter.

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Fourth Amendment: Historical Background | Constitution Annotated ...

Searches and Seizures under the Fourth Amendment

Brian T. Hobson

Introduction:

The United States Constitution is a document which aims to limit the power of the federal government. In order to achieve this goal, the Constitution limits what the federal government can do by establishing a base line of rights for all persons in the United States. In criminal law, one of the most important base line rights given to persons by the Constitution is found in the 4thamendment. The 4thamendment protects people against unreasonable searches and seizures at the hands of the government. If evidence is obtained through a search or seizure that violates the 4thamendment then the exclusionary rule (discussed later) may prevent the evidence from being used by the government at trial.

Originally, the 4thamendment only applied to actions in federal court. However, in Wolf v. Colorado, the Supreme Court stated that the 14thamendment incorporates the 4thamendment as a tool to limit the powers of the state governments as well as the federal government. Under our current laws, the 4thamendment applies equally to searches and seizures regarding criminal cases in both state and federal courts. Due to this application in both courts, the state and federal courts of appeals have created parallel case law pertaining to a 4thamendment analysis. This case law differs in some areas, but the overarching standards are set by the Supreme Court of the United States in a long line of cases that analyze the scope and meaning of the 4thamendment and how the amendment should apply under certain fact situations.

In this article, we will go step by step in analyzing a 4thamendment challenge based on a search or seizure from law enforcement. We will focus largely on federal case law as stated by the Supreme Court, but will highlight important differences in Texas when necessary.

This article will be broken down in five parts:

PART ONE: THE PRELIMINARY HURDLES STATE ACTION AND STANDING

The first element that must be shown for a successful challenge under the 4thamendment is that the search or seizure involved state action. The 4thamendment is designed to protect a person from unreasonable searches and seizures from the government only. This means that a private person may enter your home illegally, find evidence, and turn it over to the police with no 4thamendment violation. This is commonly found when a private investigator is hired by a private individual for their services.

Usually, the state action element is obvious in a criminal case as the person that is obtaining the evidence is a FBI agent, state law enforcement officer, or someone else that is affiliated with the State or Federal government. However, this element becomes less clear when a private actor illegally obtains evidence while working for the government. The question is at what point does a private actor become a state actor for purposes of a 4thamendment analysis? The Courts have determined that a search or seizure by a private actor can meet the state action element if the private actor is operating as an instrument for law enforcement or other state entity. Walter v. United States, 447 U.S. 649, 662 (1980).

For example, if an officer tells a private citizen to search your car to obtain evidence, that evidence would still be subject to a 4thamendment analysis as the private actor was acting at the direction of the state. The State action prong would be met under those facts despite the fact that the evidence was obtained by a private individual. The government cannot hide behind the state action doctrine in this scenario to circumvent a 4thamendment challenge.

Noteworthy here is a caveat that occurs in Texas law under Texas Code of Criminal Procedure 38.23. This section states that no evidence obtained by an officer or other person in violation of the United States Constitution, Texas Constitution, or Texas law shall be admitted against the accused in a criminal trial. The Texas law is more restrictive than the federal standard as state action is not a prerequisite to challenging the admission of illegally obtained evidence. The challenge would not be under the 4thamendment in this situation, but instead, a challenge under 38.23 of the Texas Code of Criminal Procedure.

2. Standing

For a defendant to challenge a search or seizure under the 4thamendment, the defendant must have standing to do so. Standing is an idea found throughout Constitutional law that states that a person cannot challenge government action without a recognized personal injury. In the context of 4thamendment law, there are three separate ways that a defendant may have standing. One, the defendant was subject to a seizure of his person by a state action. Two, the defendant had an interest in the property seized. Three, the defendant had a legitimate expectation of privacy in the place searched. Illinois v. Rakas, 439 U.S. 128 (1978). The first two means to obtain standing regard the prohibition against unreasonable seizures. Any seizure must be justified by the appropriate level of suspicion to be reasonable under the 4thamendment. Normally, whether the defendant was seized or detained is obvious from the facts. Likewise, determining whether a defendant had an interest in the property seized by a state actor is normally not a complex issue. Instead of standing, the main issue that stems from the legality of seizures revolves around having the appropriate level of suspicion to justify the seizure that takes place an arrest or detention. This will be discussed in detail in parts 2 and 3.

The most litigated topic for standing relates to the third means to obtain standing outlined above whether a defendant has the right to complain of an illegal search. For a defendant to have standing under a search, the issue can become quite complex. In Rakas, the Supreme Court pushed aside the longstanding rule that a defendant had standing to challenge a search if he was legitimately on the premises. In its place the Supreme Court gave life to the overarching theme for all standing issues involving a search whether the defendant had a legitimate expectation of privacy in the place searched. To meet this standard the defendant must show that 1) the defendant manifested a subjective expectation of privacy in the place searched and 2) that subjective expectation is one that society would deem reasonable.

In line with the legal test determined in Rakas the Supreme Court has issued case law that helps to determine standing in relation to some of the more common search issues that arise in criminal law.

1. Search of a Vehicle whether the defendant has a legitimate expectation of privacy in an automobile

Often times, criminal cases begin with the search of a vehicle that has been stopped by law enforcement. The Supreme Court has looked at two different types of defendants in these cases the driver/owner and the passengers. The Supreme Court has established a rule that passengers of a vehicle do not have standing to challenge the search of most compartments of a vehicle. In order to obtain standing to challenge a search of these compartments in a vehicle, the defendant must be the driver or the owner of that vehicle. This ruling is an outgrowth of the rule established in Rakas the Supreme Court will find that a passenger in a vehicle does not have a legitimate expectation of privacy in most areas of an automobile. This includes the glove box, under the seats, the trunk, and most other compartments. This is true because an owner could peruse through these compartments as he wished or allow others into the car. The passenger does not have the same connection to, or control over, the vehicle as the driver/owner. A passenger is likely not able to exclude others from someone elses vehicle. Due to these assumptions, his expectation of privacy is not reasonable under the eyes of the law. The Supreme Courts findings make sense in this case. Most individuals in our society would not find it to be a personal intrusion on their expectation to privacy for an officer to go through another persons car that he is merely riding in.

The rule in Rakas does not preclude all passengers from challenging any search in an automobile. If an officer went through the personal belongings of the passenger (like a purse), then certainly the Supreme Court, and all other courts, would agree that the passenger had a legitimate expectation of privacy in the thing searched. In an analysis, the ultimate question must always be the test in Rakas does the defendant have a legitimate expectation of privacy in the thing or place searched.

2. Search of Another Persons Home

Many of the same issues regarding standing in an automobile search apply to a defendants challenge to the search of another persons home. Lets say that a defendant is charged with possession of a controlled substance in state court. The controlled substance was obtained when officers entered the home of the defendants friend without a warrant and without probable cause. Without some established exigency, this would be an illegal search of the friends home. However, the defendant in this case would be unlikely to have standing unless he lived at that house or was more than a casual visitor. State case law dictates that an individual does not have the requisite expectation of privacy in anothers home if that individual is a visiting guest. The defendant here would have to show that he was living at his friends house or that he was at the very least an overnight guest to have a chance at meeting the standing prong in a 4thamendment challenge to the search. So even if the officers in this case violate the 4thamendment in obtaining the controlled substance, the defendant here will not have standing to challenge the search. He cannot suppress the evidence. The rightful person to suppress the controlled substance would be the defendants friend if he was charged. But even a successful challenge by the friend would not prohibit the State from admitting the controlled substance in the defendants trial as the 4th amendment right against unreasonable searches is considered a personal right. This right requires a personal injury to warrant the exclusion of the evidence at that defendants trial. A more detailed breakdown of the inability to suppress evidence in another persons trial will be discussed in detail in Part 5 exclusionary rule.

3.Conclusion

The two preliminary hurdles in a 4thamendment analysis are often forgotten by defense attorneys as well as prosecutors. While state action has lost its foothold in Texas case law, the standing doctrine is a tricky area that often finds itself as a central issue when challenging the legality of a search by law enforcement. The lynch pin to the standing analysis is to determine if the person is the owner, and then understand that the further removed you are from control over the area the more likely the Court is to find that your expectation of privacy is unreasonable in the eyes of society.

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Analyzing Fourth Amendment Issues | Houston Criminal Defense Attorneys

Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) agents suspected that Nia Moore-Bush was involved in illegal drug and firearm sales. So, without obtaining a warrant, they mounted a sophisticated camera on a telephone pole and surveilled her Massachusetts home for eight months in 2017. The camera recorded the front part of Moore-Bushs house and yard and her full driveway, day and night. It could zoom in to capture facial expressions, small objects in a persons hands, details on clothing, license plates, and more. Over the course of eight months, it captured her comings, goings, guests, and activities in the front curtilage of the residence, which ranged from the mundane to the personal to the potentially incriminating. And ultimately, it helped law enforcement make their arrest.

Moore-Bushs motion to suppress this evidence following her arrest was granted by a federal district court and then denied by a panel from the U.S. Court of Appeals for the First Circuit. The First Circuit took the case en bancand wound up splitting three votes to three on whether eight months of pole camera surveillance is a violation of ones Fourth Amendment right to protection against unreasonable search. The judges wrote dueling opinions that take up a whopping 129 pages in total.

Given the growing confusion in the lower courts, a Supreme Court case on the issue seems increasingly inevitable. The legality of long-term pole camera surveillance remains ambiguous. But Moore-Bush is an important case with important implications for the issue.

Chief Judge David Barron and Judges O. Rogeriee Thompson and William Kayatta ruled in favor of a warrant requirement for pole cameras. The judges argue that the ATFs use of the pole camera for eight months was a search under the Fourth Amendment, requiring a warrant. Their primary argument is based on the recent Supreme Court case Carpenter v. United States.

Carpenter held that individuals can retain Fourth Amendment rights in information they disclose to a third party, at least in some contexts. In the case, cell phone users retained Fourth Amendment rights in their cell phone location data, even though that data was exposed to their cell phone companies. This was a potentially revolutionary holding that may extend Fourth Amendment protection to a variety of digital data.

The Barron opinion argues that Carpenter plainly applies to the issue of pole camera surveillance. Echoing my forthcomingessay in the Illinois Law Review, the opinion concludes that Carpenter, by its own terms, is not limited to situations in which the third-party doctrine is in play. That is,Carpenterand its factors can be used to resolve Fourth Amendment questions involving either data held by third parties or data collected directly by the government.Carpenter did, after all, state that its holding would apply equally if the government were to employ[] its own surveillance technology to collect a record of [Carpenters] physical movements.

Having determined that Carpenter bears on the issue, the Barron opinion applies several of the factors discussed in Carpenter in the manner of a doctrinal testwhatI have termedtheCarpentertest. This test typically involves three factors: the revealing nature of the data collected, the amount of data collected, and whether the data was voluntarily revealed to another party.

The Barron opinion addresses each of these factors repeatedly and in detail. It discusses the revealing nature of the pole camera footage. The opinion argues that the footage collected can provide an intimate window into the targets life by recording everything that occurred in her front curtilage in vivid detail for several months. The opinion also addressed the voluminous amount of data collected over eight months, which encompasses all that was visible in the curtilage of the home over a substantial period and is remarkable in its depth, breadth, and comprehensive reach. It then reasoned that homeowners generally cannot prevent the exposure of their activities to pole camera surveillance: Such surveillance is clandestine, fences are often illegal or prohibitively expensive to construct, and in any event, fences can easily be circumvented by a pole camera. Accordingly, people do not really voluntarily disclose their activities to a pole cameras gaze. They have no choice. The opinion also addresses another, less commonly discussedCarpenterfactor: the cost of the surveillance. It describes at length pole cameras low cost and increased risk to privacy relative to in-person stakeouts, which would be prohibitively expensive for months-long surveillance. The opinion then concludes its lengthy merits discussion by reemphasizing that the Carpenter opinion established the principles that we rely on to find that the use of digital [camera] surveillance is a search under the Fourth Amendment.

The Barron opinion raises other arguments as well. It notes that prior tort cases have addressed the situation in which a nosy neighbor video records a person with a video camera. Such behavior is patently unreasonable, the judges find, and would likely make the perpetrator liable for a privacy tort.

The Barron opinion also downplays concerns about the difficulty of drawing a line between short- and long-duration surveillance. The judges point out that courts encounter similar line-drawing issues in numerous other areas. For example, short-duration police stops are constitutional with less than probable cause, underTerry v. Ohio,but long-duration stops are not. Likewise, short-duration detention following a warrantless arrest is constitutional, but long-duration detention following a warrantless arrest is in most cases unconstitutional. The court lists several other examples.

The judges also sketch out a policy-based argument about the consequences of leaving pole camera surveillance entirely unregulated under the Constitution. They note that the opposing judges approach would allow the government to obtain continuous video footage of every home in a neighborhood, or for that matter, in the United States as a whole. They emphasize the special protections traditionally afforded to the home under Fourth Amendment law. And they address the likely chilling effects on associational and expressive freedoms of permitting the government to pervasively monitor its citizens homes.

Judges Sandra Lynch, Jeffrey Howard, and Gustavo Gelp ruled against a warrant requirement for pole cameras. They argue that Carpenter doesnt control the pole camera issue, because that opinion noted that it didnt apply to conventional surveillance techniques and tools, such as security cameras. They contend that pole camerasalthough not exactly security camerashave been around long enough to be considered conventional. In any event, the judges assert, Carpenterdoes not directly compel finding a search here, and the Lynch opinion upholds aprior First Circuit panel decisionfrom 2009 permitting the warrantless use of pole cameras.

The main substantive argument of the Lynch opinion is that people lack a reasonable expectation of privacy in the curtilage of their home because they should expect to be observed by their neighbors over time. Their neighbors often come to know the patterns of when they leave in the morning and return in the evening, among their other behaviors and typical activities. A neighbor might even create a record of sorts about another neighbor that is similar to that created by an always-on digital camera. The Lynch opinion imagines that the neighbor is a retiree who has lived across the street for years and monitors activity seen from her windows and may even record her observations.

The Lynch opinion also discusses the cost of pole cameras. It notes that they are not cost-free and are more expensive than simply subpoenaing a cell phone company for location records. But contrary to the Barron opinion, the judges propose that the cost of such surveillance is actually a point in its favor, arguing that the government will not abuse pole camera technology by using it when it isnt producing solid evidence. They claim that a camera is used only as long as it produces such evidence, and [i]f the camera does not provide [incriminating] information, it is removed.

The First Circuits analysis is colored by its prior panel decision favoring warrantless pole camera surveillance. But when considered as a matter of first impressionis eight months of video surveillance of a home a Fourth Amendment search? The answer is yes.

To be sure, courts might reach a variety of conclusions under the vague standard of the Katz test, which bases the Fourth Amendments scope on reasonable expectations of privacy. No one expects to be observed and videotaped every time they leave their house or enter their porch, yard, or driveway. This expectation is a reasonable one as a matter of probability. While a passerby or neighbor might occasionally look at another neighbors yard, it is extremely improbable that anyone would observe it for an entire daylet alone for several months or years. But individual activities in ones yard and driveway, while not actually observed or recorded by others in the aggregate, are in theory exposed to public view. Publicly exposed activities traditionally received little protection in Fourth Amendment case law, at least prior to Carpenter. On this account, any expectation of privacy that an individual has in their yard is not reasonable. As with almost any novel Fourth Amendment question, Katzs guidance is ambiguous.

The Lynch opinions arguments regarding nosy neighbors or the impossibility of police abuse of surveillance technologies are flimsy. The judges envision the standard neighbor as a sort of super-spy, vigilantly recording other neighbors every move. Yet a neighbor nosy enough to regularly monitor a person and create a detailed record of their movements and activities is likely to be very rare. And even the most obsessed neighbor could not produce the detailed, constant record made possible by pole cameras. Neighbors typically leave the house, sleep, eat, are visible to others, cannot see in the dark, and so on, and thus differ substantially from pole cameras. And regardless of these physical limitations, it is the typical neighbornot the extreme outlierwho should provide the basis for assessments of reasonable expectations of privacy.

The Lynch opinions discussion of the potential for police abuse is even less convincing. One of the core functions of the Fourth Amendment is to prevent the overzealous or corrupt use of government investigative powers. Government agents haverepeatedly abused, andcontinuetoabuse, surveillance powers forpoliticalandpersonalgain.Yet the Lynch opinion apparently cannot imagine such things occurring. If the premise of the opinion is that Fourth Amendment restrictions on surveillance are unnecessary because the government will never abuse powerful surveillance technologies, that premise is dangerously wrong. And while the nonzero cost of pole camera surveillance may impose some constraints on its use, its cost is still very low relative to traditional forms of visual surveillance. A brand-new, high-end camera might cost roughly $5,000, but a cheaper camera can cost $200 or less. Police departments can also reuse existing cameras. Installation might cost another $600 if done by an outside contractor, and operational costs would be minimal after that. The cost-per-day of pole camera surveillance drops sharply over time and becomes drastically less than the cost of in-person surveillance for periods of longer than a week. Pole cameras, no less than license plate reader cameras or CCTV cameras, are capable of widespread use and potential abuse.

Nonetheless, the ambiguity of Katz leaves room for courts to declare that activities that in theory may be observed by others are not protected by the Fourth Amendment, even if the aggregate of such activities over several months would never actually be observed by another. The U.S. Court of Appeals for the Seventh Circuit recently made such an argument in United States v. Tugglea decision that also considered extensive pole camera surveillanceand the Lynch opinion briefly mentions the point before moving on to its super-spy-neighbor argument. But these arguments fail under an analysis that applies the principles of Carpenter (and its predecessor cases United States v. Jones and Riley v. California).

As the Barron opinion notes, several of the Carpenter factors point to the holding that long-term pole camera surveillance is a search. The amount of data collected by eight months of video surveillance is truly massiveroughly 357,000 minutes of digital video footage. As discussed in Carpenter, such large amounts of data increase the potential for invasions of the targets privacy, and allow the government to learn about more and more aspects of a targets life. Such data is also deeply revealing. Video surveillance creates a precise visual record of every activity in a yard or other curtilage: Every time any resident leaves or returns to the home; every visitor who enters the home and exactly when they arrive and leave; the license plate numbers of their cars; and every package, bag, or other item that enters or leaves the house. Pole cameras are also far less costly than in-person surveillance, especially for periods of longer than a week. When the government is able to capture large amounts of data at low cost, the potential for large-scale surveillance raises concerns about individual liberty and government power. As for voluntary disclosure, whether activities conducted in the curtilage of a home are voluntarily disclosed to others is an ambiguous inquiry that may depend heavily on the facts of each case (Is the resident a renter or an owner? Can they afford to build a new fence? and so on). But every other factor indicates that long-term pole camera surveillance is a search. Courts applying Carpenters principles should reach the same conclusion as Judges Barron, Thompson, and Kayatta: The police must obtain a warrant before video surveilling a persons home for several months.

Given the growing confusion in the lower courts, a Supreme Court case on the issue seems increasingly inevitable. But the prospects for Supreme Court review of Moore-Bush itself seem unfavorable. The Court recently denied cert in Tuggle, and Moore-Bush doesnt create a clean post-Carpenter circuit split with Tuggle. There are also vehicle problems with the casethat is, procedural complications that make it less desirable for a cert grant. The three judges who found a search here ultimately ruled in favor of the government on the basis of the good-faith exception, which allows the government to use evidence collected under existing legal authority even if that authority is later overturned. This wrinkle, plus the odd three-three split on the merits, would complicate the Courts review and present a messy procedural posture. Most likely, the Court will await a subsequent federal case that creates a true split or another state supreme court case deepening the split between the Seventh Circuit and a handful ofstatesupremecourts that have found pole camera surveillance to be a search.

Yet a pole camera case is still likely to reach the Supreme Court in the near future. It may even come out of the First Circuit. Three of the six judges ruling in this case are retiring pending confirmation of their successors, including two of the judges supporting the warrantless use of pole cameras. The split First Circuit may not stay split for long. And other circuits are likely to weigh in soon, as pole camera surveillance becomes ever-more prevalent in cases across the country.

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A First Circuit Decision and the Future of Telephone Pole Camera Surveillance - Lawfare

I was away when news of the SCOTUS leak went viral. I hadnt watched TV for a week and barely signed onto social media, but when I did, I read astute and deeply troubling reactions to the policy document designed to overturn Roe v. Wade, which has been considered established law for 50 years.

The document, drafted by conservative Supreme Court Justice Samuel Alito, was supported by four of his court colleagues, revealing that a majority of the court concurred with ending womens right to abortion. The timing of the leak was significant; it occurred when the court is scheduled to rule on the constitutionality of a Mississippi abortion law which prohibits abortion after 15 weeks of pregnancy.

If the court finds that the Mississippi law stands, it will have sanctioned ending Roe v. Wade, allowing states to make their own laws regarding abortion. Some states have already established draconian laws that include charging women with murder if they miscarry or have an abortion. Some have ruled that physicians who perform abortions can be charged with a felony crime and some have set up vigilante laws that could affect anyone who helps a woman get an abortion.

Essentially, the demise of the constitutional right to abortion up to 24 weeks of pregnancy will end womens right to abortion in more than half the states in this country. The implications are huge, not only for American women but for the future of the country, and they are abundantly clear.

Many analysts and pundits have written cogently and urgently about the legal, physical, economic and emotional consequences for women and others in this country, and for all of us with respect to our civil and human rights. As a womens health educator and advocate, I am all too familiar with those consequences. I have heard womens testimonials, read their memoirs, listened to their stories. I have helped them access abortion care, and as a doula, I have helped them give birth to much wanted babies.

After the Alito document was revealed (and during the last confirmation hearings), I thought about the great legal minds of the past who had served as Supreme Court Justices like Oliver Wendell Holmes Jr., Thurgood Marshall, Ruth Bader Ginsburg, among them. Now, I mourn what has become of that institution, where several judges lied under oath to Congress regarding precedent, and where many are willing to ignore the Constitutions Fourth Amendment right of Americans to be secure in their persons and to not be violated or subjected to unreasonable searches and seizures.

It pains and frightens me that faulty some might say puerile logic superficial, antiquated, cliched justifications, overt sexism and religious ideology are blatantly on display. (It is worth noting that seven of the current justices are Catholic and no Protestants are on the bench.)

Couple that with the less-than-stellar records and legal experience of several justices, the alleged sexual harassment conduct of two justices, the conflict of interest on the part of a justice whose wife actively supported the insurrection, along with the majoritys willing abrogation of civil and human rights, and one can question where liberty and justice for all has gone.

How, I ask myself in these traumatic judgment days, has this largely trusted American institution so quickly deteriorated into depravity? How did its majority come to rely on bumper sticker taglines, social media tropes, and arguments so weak and sloppy that they wouldnt pass muster in a law school? Where has compassionate consideration in difficult matters gone? Why have context, untoward consequences and the reality of peoples lives disappeared?

The fact is, the Supreme Court has become a political organization with its own dark agenda and its reputation will forever be tarnished, all because two men and one woman who should know better, appointed by a far-right, self-serving autocrat, are now seated for life on the highest court in the land, along with several hundred inappropriate federal judges.

The price well all pay for judicial travesties, individually and together, grows ever clearer and more threatening. If Roe v. Wade is overturned, womens lives will be destroyed. Precedent in other matters (gay and interracial marriage, LGBTG rights and more) will no longer be valid and revision of laws that wreak havoc because of ignorance and a taste for punishment, will return.

It is no stretch to say that we will become an even more divided and dangerous nation, two-tiered and binary in ways that we cant yet imagine. Violence is likely to flourish along with racism, antisemitism, sexism and increased marginalization. The elderly, young, disabled and ill will suffer even more profoundly. Murder charges, incarcerations and suicides will become commonplace. Poverty will prevail for those in the 99%, while corporations and billionaires flourish. Family structures will be deeply and sadly impacted. The planet will be at risk sooner than predicted.

This is not solely about womens rights, and it is not hyperbole. Its a harbinger of what is to come because of laws we must live with, who makes and enforces those laws, who adjudicates disputes, what national priorities are established and by whom. It is about the future, which now is in the hands of the Supreme Court a court plunged into decline that endangers us all.

Its a court that is beyond disappointing, a court with extraordinary power to shape our lives, and it grows ever more dangerous.

Elayne Clift lives in Brattleboro.

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Clift: The demise of Fourth Amendment | Perspective | rutlandherald.com - Rutland Herald

(The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.)

Scott Skinner-Thompson, University of Colorado Boulder

(THE CONVERSATION) Almost all American adults including parents, medical patients and people who are sexually active regularly exercise their right to privacy, even if they dont know it.

Privacy is not specifically mentioned in the U.S. Constitution. But for half a century until its June 24, 2022, ruling in Dobbs v. Jackson the Supreme Court has recognized it as an outgrowth of protections for individual liberty. As I have studied in my research on constitutional privacy rights, this implied right to privacy is the source of many of the nations most cherished, contentious and commonly used rights including the right to have an abortion.

A key component of liberty

The Supreme Court first formally identified what is called decisional privacy the right to independently control the most personal aspects of our lives and our bodies in 1965, saying it was implied from other explicit constitutional rights.

For instance, the First Amendment rights of speech and assembly allow people to privately decide what theyll say, and with whom theyll associate. The Fourth Amendment limits government intrusion into peoples private property, documents and belongings.

Relying on these explicit provisions, the court concluded in Griswold v. Connecticut that people have privacy rights preventing the government from forbidding married couples from using contraception.

In short order, the court clarified its understanding of the constitutional origins of privacy. In the 1973 Roe v. Wade decision protecting the right to have an abortion, the court held that the right of decisional privacy is based in the Constitutions assurance that people cannot be deprived of life, liberty or property, without due process of law. That phrase, called the due process clause, appears twice in the Constitution in the Fifth and 14th Amendments.

Decisional privacy also provided the basis for other decisions protecting many crucial, and everyday, activities.

The right to privacy protects the ability to have consensual sex without being sent to jail. And privacy buttresses the ability to marry regardless of race or gender.

The right to privacy is also key to a persons ability to keep their family together without undue government interference. For example, in 1977, the court relied on the right to private family life to rule that a grandmother could move her grandchildren into her home to raise them even though it violated a local zoning ordinance.

Under a combination of privacy and liberty rights, the Supreme Court has also protected a persons freedom in medical decision-making. For example, in 1990, the court concluded that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.

Limiting government disclosure

The right to decisional privacy is not the only constitutionally protected form of privacy. As then-Supreme Court Justice William Rehnquist noted in 1977, the concept of privacy can be a coat of many colors, and quite differing kinds of rights to privacy have been recognized in the law.

This includes what is called a right to informational privacy letting a person limit government disclosure of information about them.

According to some authority, the right extends even to prominent public and political figures. In one key decision, in 1977, Chief Justice Warren Burger and Rehnquist both conservative justices suggested in dissenting opinions that former President Richard Nixon had a privacy interest in documents made during his presidency that touched on his personal life. Lower courts have relied on the right of informational privacy to limit the governments ability to disclose someones sexual orientation or HIV status.

All told, though the word isnt in the Constitution, privacy is the foundation of many constitutional protections for our most important, sensitive and intimate activities. If the right to privacy is eroded such as in a future Supreme Court decision many of the rights its connected with may also be in danger.

This story was updated on June 24, 2022, to reflect the Supreme Courts decision in Dobbs v. Jackson Womens Health.

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/privacy-isnt-in-the-constitution-but-its-everywhere-in-constitutional-law-183204.

Licenced as Creative Commons - attribution, no derivatives.

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Privacy isn't in the Constitution but it's everywhere in constitutional law - Journal Inquirer

SOPHIE BUSHWICK: If Roe v. Wade is overturned, so-called trigger laws already passed in 13 states could ban abortion in large parts of the country. Here's how your smartphone could be used to prosecute you if you do decide to have an abortion in an area where it's criminalized.

First of all, your phone is a major tracker of personal information.

It records a huge volume of data, your browsing information, location data, and payment history, that, taken together, can reveal your most intimate activities, such as how many times you go to the bathroom.

If a basic activity like reproductive healthcare becomes criminalized, experts say courts could then issue a warrant for your device, which would then reveal all of that personal information.

If this all sounds a little too dystopian, that's because it is.

Even with Roe intact, digital footprints have been used against people seeking to terminate pregnancies.

Imagine a situation where a pregnant person is admitted to the hospital for treatment for a miscarriage.

That person's phone could then be placed under surveillance under suspicion of having tried to induce that miscarriage.

Not only that; privacy experts warn that law enforcement could actually sidestep the need for a warrant by going directly to private companies.

So how would that work?

In case you didn't know, data brokers have been collecting your personal information for years, and they sell that data for a fee.

Experts say there is actually precedent for law enforcement using data brokers to sidestep the Fourth Amendment.

By issuing a broad subpoena or buying information in bulk, law enforcement could crack down on a large number of people at once.

For example, they could use geofence or other location data, part of your digital footprint, to find everyone who had visited a clinic.

That information becomes even more revealing when it's combined with health data.

This is yet another reason why you should check the privacy policy of your period tracking app if you use one.

That's because experts warn these apps can actually identify if you're pregnant before you know it yourself.

And yes, government officials in this country have actually charted people's periods to determine if they were pregnant.

And know HIPAA, or the Health Insurance Portability and Accountability Act, is not necessarily going to help you either.

It's important to note that apps have no obligation to keep your data secure and private, and HIPAA does not really apply here.

Basically, your vulnerability and privacy is in the hands of the companies that develop these software apps.

That's why some privacy advocates call for pressuring these companies directly to keep your data private and safe.There are still ways to protect yourself, but relying on the government or the tech industry to do so isn't one of them.

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Roe V. Wade was overturned. Here's how your phone could be used to spy on you. - Scientific American

June 24, 2022

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Of all the absurdities that we accept without question, basing the right to own an AR15 on the Second Amendment is the most brazenly far-fetched.

The man who gunned down those nineteen children and two educators at Robb Elementary School in Uvalde, Texas on May 24 of this year was not acting in concert with a well-regulated militia. He was acting as a madman inspired by an evil impulse to slaughter innocent children. And the police who answered the call waited outside for an hour, afraid to go in unwilling to risk their lives to an insane man armed with a modern killing machine.

We need to ask ourselves some common sense questions:

Heres a practical analogy regarding changing times:

In the early days of our nation, people traveled overland by horse-drawn carriages. There was no regulatory entity issuing licenses. The roads were not too crowded and drivers generally managed to avoid accidents. With the invention and refinement of the automobile, the roads became more congested and dangerous. Rules of the road were codified and drivers were required to apply for licensure based on knowledge and competence.

Similarly pragmatic reasoning must be applied to guns. The front-loading musket of Revolutionary War days is not equivalent to an AR15. It is not a gun in the Fourth Amendment sense of the word. No such mass-murder machine was even dreamed of in the days of our forefathers. And the murderer of the Uvalde children was not a member of a well-regulated militia. He was a madman with an AR15.

I am not recommending more stringent licensing for AR15s. We as citizens do not need these weapons. Their proliferation is neither dictated nor endorsed by the Second Amendment. The only real beneficiaries of their continued public sale are members of the gun industry.

When will the next mass shooting be? And why must it be? We can end this.

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Uvalde and the Second Amendment - Daily Kos

The U.S. Supreme Court overturned Friday the half a century old Roe V. Wade precedent, revoking womens constitutional right to abortion. The ruling came a day after the nations highest court struck down a century old New York state law requiring residents to have proper cause to carry a handgun. These landmark rulings will have far reaching consequences nationwide.

Just ahead of the court reversing its 1973 abortion ruling, Gallup released a poll about the American confidence in the Supreme Court. According to the recent poll, Americans confidence in the court has dropped sharply over the past year, reaching a new low of 25% (combined great and quite a lot of confidence), down from 36% a year ago. The 11 points decline comes as Americans remain opposed to overturning Roe v. Wade by a 2-to-1 margin, according to Gallup.

To determine American trust in the Supreme Court the year you were born, 24/7 Wall St. reviewed Gallups Confidence in U.S. Supreme Court Sinks to Historic Low released June 23. Gallup conducted telephone interviews between June 1-20, 2022, with 1,015 adults ages 18+, living in all 50 states and the District of Columbia. Gallup notes that based on this sample, the margin of sampling error is 4 percentage points at the 95% confidence level.

The highest court comprises eight associate justices and one chief justice, all of whom serve lifetime appointments, according to the Constitution. When it was drafted, the aim was to shield the judiciary from political pressures as with a lifetime appointment, judges cannot be fired. In 211 years, though, there have been just 17 chief justices and a total of 112 Supreme Court justices, and judges today serve an average of 28 years, longer than at any time.

This has created a Supreme Court often criticized for being highly polarized along partisan lines, with one president able to influence the court for decades.

Over the years, the Supreme Court has enjoyed the most confidence from Americans during the mid- to late-1980s, the time of the Reagan administration. Several landmark decisions from the time include cases of discrimination based on race, sex, and gender, Fourth Amendment rights, First Amendment rights, Federalism, and more.

Two most recent decisions will have immediate consequences. About half the states have laws that could make abortions illegal, and about half of states may now find they have unconstitutional gun laws on their books. (These are the states where abortion will be illegal.)

Going forward, Americans confidence may depend on where the court takes matters from here. Just as Pride Month is coming to a close, Supreme Court Justice Clarence Thomas suggested the court should reconsider rulings about birth control and same-sex marriage in the future. That may be going against decades of established societal trends. (Not the U.S., but this is the No. 1 democracy in the world.)

Click here to see American trust in the Supreme Court the year you were born

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Trust in the Supreme Court the Year You Were Born - 24/7 Wall St.

The charges have been dropped against the Suring school district administrator who had students stripped to their underwear in a January search.

Suring School administrator Kelly Casper confined six students to a restroom off the school nurses office to be searched on Jan. 18. The district attorney initially didnt file charges because he said the search did not meet Wisconsins legal definition of a strip search, but later charged Casper with six counts of false imprisonment.

A judge dismissed the charges against Casper on Tuesday, saying there were insufficient facts to support the claim that Casper had falsely imprisoned the six girls. Casper was placed on paid administrative leave in March.

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Casper kept the six girls, then ages 14 to 17, in a restroom off the school nurses office and had them strip to their underwear to be checked for vaping cartridges. The search turned up two cartridges, and another girl admitted to having a vape on her, according to the Green Bay Press Gazette.

The families of several girls hired civil rights attorney Jeff Scott Olson earlier this year. He told Wisconsin Public Radio in March that, regardless of the outcome of the now-dismissed criminal charges, he planned to move ahead with a civil suit over what he says is a violation of the girls Fourth Amendment right against unlawful search and seizure.

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Charges dismissed against Suring administrator for search where students had to remove clothes - Wisconsin Public Radio