Category Archives: Fourth Amendment

Pennsylvania drivers once had a choice when faced with a police request to search their cars: Consent or make officers get a warrant.

But the state Supreme Court has ruled police in Pennsylvania no longer need warrants to search private vehicles if they suspect evidence of a crime inside.

The decision broadens the power of police to search cars without a judge first deciding whether they have a valid reason to do so. The practice was previously allowed only when officers could show the evidence might be destroyed or moved if they waited.

It also brings Pennsylvania into line with a majority of states that have adopted a federal exception to the Fourth Amendment's protection against warrantless searches when it comes to vehicles a legal doctrine that grew out of the Prohibition-era war on bootleggers.

Justice Seamus P. McCaffery, who wrote Tuesday's 4-2 majority opinion, said the change is needed to remedy decades of "fractured jurisprudence" that have left police and prosecutors with little guidance.

Pennsylvania courts had largely followed federal courts, allowing warrantless vehicle searches until 1995. That year the state Supreme Court reversed itself in a series of decisions that warrantless searches of cars were illegal if the officers had time to get a judge's approval.

"Accordingly, it remains difficult, if not impossible, for police officers in the field to determine how [the state Supreme Court] would rule in motor vehicle search-and-seizure cases, the circumstances of which are almost endlessly variable," wrote McCaffery, a former Philadelphia police officer.

Chief Justice Ronald D. Castile and Justice J. Michael Eakin joined McCaffery's opinion. Justice Thomas G. Saylor filed his own opinion, saying that although he had reservations, he joined McCaffery "for the sake of certainty and consistency."

In a strongly worded dissent joined by Justice Max Baer, Justice Debra McCloskey Todd said the majority "eviscerated the strong privacy protections" the state Constitution provides motorists and "heedlessly contravenes over 225 years of unyielding protection against unreasonable search and seizure which our people have enjoyed as their birthright."

The decision stems from a Philadelphia drug case in which Sheim Gary was stopped Jan. 15, 2010, by police who believed the tint of his sport utility vehicle's windows was too dark. The officers smelled marijuana coming from the vehicle and when the police asked, Gary admitted he had some weed.

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Pennsylvania Supreme Court rules police don't need warrants to search cars

By Brandon Stoneburg

bstoneburg@eveningsun.com

@b_stoneburg on Twitter

The Pennsylvania Supreme Court recently gave its opinion on the fourth amendment as it pertains to drivers in the Keystone State. Police will no longer need a warrant to search a vehicle; it can be done based solely on probable cause.

Local police chiefs said while the policy is new, not much will change in how officers handle traffic stops and searches.

"There are no grave changes here because you still need probable cause, which is key," Penn Township Police Chief Jim Laughlin said. "Nobody is going to arbitrarily pull a vehicle over and search it."

There were already exceptions to warrant laws, Southwestern Regional Police Chief Gregory Bean said. For example, an officer didn't need a warrant to search a vehicle if illegal items were visible and there was probable cause, which Laughlin described as an officer using his senses to see or smell contraband, drugs or weapons.

A search could also be performed if the driver admits to being in possession of something illegal.

"If you have probable cause and articulate it, you can do an immediate search instead of holding the car and waiting for a warrant," Laughlin said. "Before, if you thought there was probable cause, but were denied access by the car operator, you would've had to wait."

A safeguard is still in place against any potential illegal searches. If the police officer fails to show or explain probable cause, the defendant could challenge it and the evidence could be thrown out, York County Chief Deputy Prosecutor Tim Barker said.

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Local police: Updated vehicle-search law still requires probable cause

What the final clause of the Fourth Amendment means in interpreting the government's rights

An NSA facility in Utah (Reuters)

A secret opinion of the Foreign Intelligence Surveillance Court recently released to the public is a reminder that the NSA is still conducting mass surveillance on millions of Americans, even if that fact has faded from the headlines. This would seem to violate the Fourth Amendment if you read its plain text. So how is it that FISA-court judges keep signing off on these sweeping orders?

They base their rulings on Smith v. Maryland, a case the Supreme Court decided decades ago. Before we examine the glaring flaw in the jurisprudence of the FISA-court judges applying it to mass surveillance, here's a brief refresher on that case.

Smith began with a 1976 house robbery. After the break-in, the victim started getting obscene phone calls from a man identifying himself as the robber.

On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. On March 16, police spotted a man who met McDonoughs description driving a 1975 Monte Carlo in her neighborhood. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith. The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioners home. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioners home to McDonoughs phone. On the basis of this and other evidence, the police obtained a warrant to search petitioners residence.

The Supreme Court ruled that the defendant had no reasonable expectation of privacy for numbers dialed from his house because a third party, the telephone company, kept a record of all calls dialed, as is commonly understood by phone users. The NSA argues that, per this precedent, they can obtain the call records of every American, even if the vast majority of us are suspected of no wrongdoing.

Georgetown Professor Randy Barnett explains why judges relying on Smith to legitimize mass surveillance are actually going far beyond the precedent that the Supreme Court established. A key difference between what the Court allowed in Smith and what the NSA is doing: Particularity.

Recall the text of the Fourth Amendment, and especially the part that I've rendered in bold:

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.

Continued here:

The Shaky Legal Foundation of NSA Surveillance on Americans

Fourth Amendment to the United States Constitution
This is a synthesized speech reading of the Wikipedia article "Fourth Amendment to the United States Constitution" and is intended primarily for blind and vi...

By: Frank Eckstein

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Fourth Amendment to the United States Constitution - Video

Rand Paul Third Party Records Should Get Fourth Amendment Protection O #39;Reilly Factor 6 11 2013
watch latest news daily update new update galobal ecnomic 2014.

By: saba aslam

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Rand Paul Third Party Records Should Get Fourth Amendment Protection O'Reilly Factor 6 11 2013 - Video

Should police be allowed to search your smartphone
Argued that smartphones are covered by the fourth amendment, tomorrow the supreme court will hear a pair of cases that will help argue that smartphones and tablets should fall under that category,...

By: KOCO 5 News

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Should police be allowed to search your smartphone - Video

Today the Supreme Courtis hearing two cases on law enforcements ability to search a persons cellphone without a warrant. It is an important decision in a time where a hand-size device can contain troves of personal data, some of which may or may not be pertinent to a case.

The decisions boil down to the Fourth Amendment: What are unreasonable searches and seizures?

The decision could affect a wide swath of the population. The New York Times notes that 12 million people are arrested every year, often for minor offenses, and that about 90 percent of Americans have cellphones.

Currently, the courts allow law enforcement to do warrantless searches when a person is arrested. For example, if someone is pulled over and a cop has probable cause he might check the car. This is often justified as a way to ensure police safety and avoid the destruction of evidence.

In its entirety the Fourth Amendment reads:

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.

But what about a cellphone? Can a cop flip through your contacts, or browser history or Dropbox without a warrant? Are those papers or effects, or not?

The two cases being heard are on opposite ends of the spectrum. The first is Riley v. California. In 2009, David L. Riley had an expired car registration, and was pulled over in San Diego. Police also found two loaded guns and text messages that associated him with a gang. A further search of the phone linked him to an attempted murder. He was convicted and received 15 years in prison.

Both the guns and phone were found without a warrant; a California appeals court ruled that the search was like going through a persons wallet or address book and did not require one.

The second case isUnited States v. Wurie.Brima Wurie was arrested in Boston in 2007 on drug and gun charges. Officers searched his flip-phones call log without a warrant. A Boston federal appeals court threw out the cellphone records as evidence. Judge Norman H. Stahl wrote, Today, many Americans store their most personal papers and effects in electronic format on a cellphone, carried on the person.

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Fourth Amendment in the digital age: Supreme Court to decide if police can search cellphones without a warrant

STORY HIGHLIGHTS

Editor's note: Brianne Gorod is appellate counsel at the Constitutional Accountability Center, a progressive law firm and think tank. Gorod is a former law clerk to Supreme Court Justice Stephen Breyer and was an attorney-adviser in the Justice Department's Office of Legal Counsel. She is one of the authors of her firm's amicus brief in Riley v. California and United States v. Wurie, two cell phone privacy cases before the U.S. Supreme Court. The opinions expressed in this commentary are solely those of the author.

(CNN) -- It won't surprise anyone that Justice Antonin Scalia wrote a scathing dissent in a Supreme Court case that came down last week. But it might surprise some people that three members of the court's so-called liberal wing joined him.

Scalia argued that searching the car of Prado Navarette, pulled over on suspicion of drunken driving, violated the Fourth Amendment's protections against unreasonable searches and seizures. Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor agreed.

This seemingly idiosyncratic lineup is a developing bloc in Fourth Amendment cases, and it's one to keep any eye on as the court hears two even bigger such cases Tuesday. In Riley v. California and United States v. Wurie, the court will consider whether the police may search the contents of an arrestee's cell phone without a warrant. This means that if you get arrested for jaywalking or littering (and in some places, you can be), the police can search your smartphone -- and everything on it.

There should be little doubt about what Scalia will say about these searches. He has become a regular champion of the Fourth Amendments protections against "unreasonable searches and seizures." In Navarette v. California, Scalia disagreed with the court's conclusion that the police could lawfully stop a car after a woman anonymously called 911 and reported that the car had driven her off the road. Scalia wrote that such stops were not the constitutional framers' concept of a "people secure from unreasonable searches and seizures."

And in Maryland v. King, a case decided last term, Scalia disagreed with the court's conclusion that the police may lawfully take a cheek swab of someone's DNA after he or she has been arrested for a serious offense. He expressed "doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection."

Those proud men adopted the Fourth Amendment in large part to respond to the British use of "general warrants." These warrants were not specific about the people or items to be searched and thus gave the government broad discretion to search people's homes and the personal papers and effects within. The Fourth Amendment was adopted to ensure the American people would not be subject to such broad searches.

As Scalia put it simply in the King case, "suspicionless searches are never allowed if their principal end is ordinary crime-solving." That's precisely why the police should not be able to search the modern-day equivalent of one's "papers and effects" -- the contents of one's cell phone -- without a warrant.

Fortunately, there's reason to think that Scalia won't be on the losing side of this one. To start, searches of cell phones have the potential to be far more invasive than the searches in Navarette and King. In Navarette, the search was a brief traffic stop. Even the search in King -- a light swabbing of the cheek -- while more physically invasive, does not reveal all of a person's most private communications and the intimate details of one's life the way searches of a smart phone can.

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What Scalia knows about illegal searches

WASHINGTON, April 28 (UPI) -- The U.S. Supreme Court will hear two cases regarding whether police searches of cellphones should require a warrant to avoid violating the Fourth Amendment.

The Fourth Amendment prohibits law enforcement and the government from engaging in "unreasonable searches and seizures" but the Justice Department is trying to exploit an old loophole that allows a warrantless search to prevent the destruction of evidence.

The cases are among several that have tested the Constitution in the digital age. The first case, which is being heard on Tuesday, is Riley v. California. When David L. Riley was pulled over for expired registration in San Diego in 2009, police found guns in his vehicle and searched his smartphone, which contained evidence linking him to a street gang. He was arrested and convicted for attempted murder and sentenced to 15 years in prison.

In its Supreme Court brief, California claims information on cellphones "is not different in kind from wallets, address books, personal papers and other items that have long been subject to examination."

However, many argue now that smartphones carry troves of personal data including communications, banking information, health information and access to a person's social media, it needs to be protected as that information would under the Fourth Amendment.

The original judge in the second case the court will hear, United States v. Wurie, agreed with that sentiment when he threw out the evidence collected from Brima Wurie's cellphone after his call logs led to an arrest on drug and gun charges.

"Today, many Americans store their most personal papers and effects in electronic format on a cellphone, carried on the person," Judge Norman H. Stahl wrote for a divided three-judge panel.

Riley's lawyers say the solution to the police's problem is as simple as requiring them to put the phone in airplane mode while they wait for a warrant or to disrupt the signal with Faraday bags to prevent wiping.

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Supreme Court to hear case on police searches of cellphones

Others say there must be a different standard because of the sheer amount of data on and available through cellphones. In February, for instance, the Texas Court of Criminal Appeals suppressed evidence found on the phone of a high school student who was arrested on charges of causing a disturbance on a school bus. "Searching a person's cellphone," the court said, "is like searching his home desk, computer, bank vault and medicine cabinet all at once."

The justices are not always savvy about technology. At last week's argument over whether an Internet streaming service is lawful, Justice Antonin Scalia seemed to think HBO is a broadcast rather than a cable channel.

Read More IRS to face the Supreme Court over summons power

But the justices can be sensitive to the implications of new technology for privacy rights, especially their own. Things did not go well for the Justice Department after one of its lawyers said at a 2011 argument that the F.B.I. was free to place GPS devices on the justices' cars. The government lost the case, against a drug dealer it had tracked for a month, by a 9-to-0 vote.

Similarly, in 2001, the court limited the use of thermal-imaging devices to peer into homes. Justice Scalia, writing for the majority, said, "It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology."

The problem in the thermal-imaging case, he wrote, was that the devices could detect not only heat lamps used to grow marijuana but also "at what hour each night the lady of the house takes her daily sauna and bath."

Searches of phones may give rise to a similar protective reaction. "It's a technology that all the justices will understand," Professor Kerr said. "They all have cellphones."

But they may not know how much information such phones can contain, including call records, messages, Internet browsing records, calendars, books, diaries, photographs and videos, to say nothing of applications that connect to financial, medical and travel records.

Adam M. Gershowitz, a professor at William & Mary Law School, noted that his iPhone tracked and stored his movements. "I just looked," he said, "and my phone shows that I arrived at work yesterday at 8:56 a.m." It also showed where and when he had lunch.

The first case to be argued Tuesday, Riley v. California, No. 13-132, arose from the arrest of David L. Riley, who was pulled over in 2009 in San Diego for having an expired registration. The police found loaded guns in his car and, on inspecting Mr. Riley's smartphone, entries they associated with a street gang.

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Court may let cops search smartphones