Category Archives: Fourth Amendment

Item 1.01 Entry into a Material Definitive Agreement.

On June 24, 2022, Alaunos Therapeutics, Inc. (the "Company") entered intoAmendment #4 (the "Fourth Amendment") to a Cooperative Research and DevelopmentAgreement, dated January 9, 2017, by and among the National Cancer Institute,the Company and Precigen, Inc., as amended (the "CRADA"). The Fourth Amendment,among other things, extends the term of the CRADA until January 9, 2025.

The foregoing summary of the Fourth Amendment does not purport to be completeand is qualified in its entirety by reference to the full text of the FourthAmendment, a copy of which, subject to any applicable confidential treatment,will be filed as an exhibit to the Company's Quarterly Report on Form 10-Q forthe period ended June 30, 2022.

Item 7.01 Regulation FD Disclosure.

On June 27, 2022, the Company issued a press release announcing the entry intothe Fourth Amendment. A copy of the press release is furnished as Exhibit 99.1to this Current Report on Form 8-K and is incorporated herein by reference.

The information contained in this Item 7.01, including Exhibit 99.1, is being"furnished" and shall not be deemed "filed" for purposes of Section 18 of theSecurities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwisesubject to the liability of that Section or Sections 11 and 12(a)(2) of theSecurities Act of 1933, as amended (the "Securities Act"). The informationcontained in this Item 7.01, including Exhibit 99.1, shall not be incorporatedby reference into any registration statement or other document pursuant to theSecurities Act or into any filing or other document pursuant to the ExchangeAct, except as otherwise expressly stated in any such filing.

Item 9.01 Financial Statements and Exhibits.

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ALAUNOS THERAPEUTICS, INC. : Entry into a Material Definitive Agreement, Regulation FD Disclosure, Financial Statements and Exhibits (form 8-K) -...

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On February 24, 1761, a Boston lawyer named James Otis really went to town. He had been engaged by some Boston merchantswhich is to say, in many cases, smugglersto fight against the Writs of Assistance, which were odious general warrants that allowed agents of the Crown to barge into just about any business and/or dwelling to search for smuggled goods. Otis spoke for five hours.

The heart of Otiss lengthy denunciation of the writs came fairly early on in his presentation. To Otis, granting the unlimited ability to search and seize created tyrants out of citizens. He also made it clear that the writs were contrary in spirit to the oldest precepts of English common law.

Listening in the courtroom, a 26-year-old Boston lawyer named John Adams found that Otiss eloquence lit a fire in him. The moment is immortalized in a mural on the wall of the Massachusetts State House. Somewhere in those five hours were the seeds of the Fourth Amendment to the United States Constitution, as well as the importance of privacy to the life of that entire document. The concept of privacy was the reason they all fought the damn war in the first place.

All that being said, can folks please stop referring to the decision in Griswold v. Connecticut as having been "about contraception"? Griswold confirmed the existence of a right to privacy within the Constitution. That's everything. It's about marriage. It's about sex. It's about what we read. It's about how we communicate with each other. It's about the limits to search and seizure. It's about medical records and genetic information. It's about libraries and the internet. Its about what we learn and how we learn it. Its all tied in together in a fervent prayer to keep us all safe from, as Thomas Jefferson put it, every form of tyranny over the mind of man. As Supreme Court Justice Arthur Goldberg put it in his Griswold concurrence:

So, if Justice Clarence Thomas has his way, and this Supreme Court of dubious legitimacy decides to reconsider Griswold and all its progenyand I make the odds of that no worse than 50-50a lot more than pills and rubbers and diaphragms are on the line. So is the principle that we are entitled to the public expression of our private thoughts, and in that principle, we have the right to be as safe from intrusion as James Otis said those Boston smugglahmerchants were safe against intrusions into their basements by agents of the Crown. Remember, also, as vigilantism among the populace becomes a vital part of law enforcement, that Otis warned us that giving our fellow citizens that power was to make tyrants of them all. Mr. Madison recognized that fundamental truth when he wrote to Thomas Jefferson in 1788:

They all knew. That was why they fought the damn war.

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Griswold Is Not About 'Contraception.' It's About the Right to Privacy. - Esquire

Every year, government agents descend on peoples homes threatening them with huge fines if they do not divulge intimate details about their lives. The American Community Survey (ACS) is sent to about 3.5 million randomly selected Americans every year. It demands personal information such as how many beds, cars and phones the household has. It asks people to disclose their fertility history, sexual orientation, and history of marriage and divorce. It asks about daily commute time to work, detailed work history, and how much a person pays in taxes, rent, mortgage and utility bills.

In 1790, Congress authorized the first census. The law it passed authorized six simple questions about the number of people who lived in each home to ensure congressional representation was accurately apportioned. Interestingly, Congress rejected James Madisons proposal to ask about peoples occupations as a waste of trouble. That first Congress, which was closest in time to when the Constitution was written, rejected the notion that government agents could collect peoples personal information under its power to count the nations population.

Under the Constitution, the Census Bureau has one job: to count the number of people in the country for apportioning congressional seats in the house of representatives. Thats it.

But many people dont realize that the bureau now also conducts other surveys in addition to the decennial census. Most of them are voluntary. For some, the federal government even pays participants. But the American Community Survey is mandatory, and that compulsion makes it constitutionally suspect.

The American Community Survey, which asks more than 100 questions, goes far beyond a simple headcount. If this were a voluntary survey, people would be free to not answer the questions. No consequences would follow. But refusing to answer the ACS carries criminal prosecution and potentially ruinous fines. The Census Bureau acknowledges that threatening people makes many buckle under the pressure and disclose their lifes private details to the government agents. And the bureau doesnt see any problem with that.

We have seen a steady march toward protecting peoples privacy in the United States over the last century. As recently as Dobbs v. Jackson Womens Health Organization, the Supreme Court has recognized that people have a constitutional right to shield information from disclosure. Meanwhile, the Census Bureau has marched in the opposite direction and ended up with a legal position that is unsustainable under the narrow authority Congress has given it. In short, the bureau believes that it can compel anyone to divulge any information it may be interested in under the threat of criminal charges and fines.

Ordering people to disclose highly personal information, or else pay hefty fines, without suspicion of wrongdoing, without probable cause, or without a warrant, is unconstitutional. Yet the Census Bureau asserts it has authority akin to a general warrant the power to search and seize anyone they choose for any or no reason at all when it randomly selects millions of Americans and orders them to answer the American Community Survey.

The Bill of Rights zealously safeguards the right to privacy. And this is exactly the kind of invasion of privacy that Judge Janice Rogers Brown decried in People v. McKay as the inevitable [revival] of the general warrant and precisely the kind of arbitrary authority which gave rise to the Fourth Amendment.

That is why Maureen Murphy, John Huddleston and thousands of other Americans are fighting the Census Bureaus unwarranted intrusion into their lives. Their pending class-action lawsuit asks the court to settle once and for all that the bureau lacks the authority to compel individuals to answer the American Community Survey. The relevant statute simply does not give the Census Bureau as much power as the bureau thinks it does.

The right to privacy is as American as apple pie or a baseball game on the Fourth of July. Simply put, what the government gets to know about you should be your choice to make. And if a government agent comes to your home asking you intrusive questions without a warrant or probable cause, you should have the undiluted right to tell the agent to take a hike.

Adi Dynar is an attorney at Pacific Legal Foundation, a nonprofit legal organization that defends Americans liberties when threatened by government overreach and abuse.

Read more:
What the government gets to know about you should be your choice - The Hill

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Jen Patja Howell shared an episode of the Lawfare Podcast in which Benjamin Wittes Wittes sat down on Twitter Spaces with Roger Parloff, Quinta Jurecic, and Molly Reynolds to discuss day four of the Jan. 6 committee hearings:

She alsoshared an episode of the Lawfare Podcast in which Wittes talked with Jurecic, Parloff, and Katie Benner of the New York Times about day five of the Jan. 6 select committee hearings:

Pollard shared a livestream of day four of the Jan. 6 select committee hearings. He also shared a livestream of day five of the Jan. 6 select committee hearings.

Elena Kagan shared an episode of Lawfare No Bull which features audio from the fourth public hearing held by the Jan. 6 select committee:

Bob Bauer argued that presidents seeking reelection can pose unique challenges to democratic elections in situations in which their desire to win can lead to disastrous results.

Daniel Richman discussed the role that the doctrine of willful blindness might have in proving Trumps criminal liability if a case were brought against the former president for his role in the Jan. 6 Capitol attack.

David Priess shared an episode of Chatter in which Shane Harris sat down with Tim Naftali to discuss the legacy of Watergate in light of the Jan. 6 Capitol attack:

Howell shared an episode of the Lawfare Podcast from the November 2020 archives in which Evelyn Douek and Jurecic sat down with Alex Stamos to discuss the state of election security and the difficulty of countering false election claims:

Robert Chesney and Steve Vladeck shared an episode of the National Security Law Podcast in which they discussed the latest Jan. 6 conspiracy indictment, the Navarro contempt of Congress charge, the lawsuits challenging the Texas and Florida social media content-moderation laws, and more:

Stewart Baker shared an episode of the Cyberlaw Podcast in which he sat down with Amy Gajda to discuss her book, Seek and Hide: The Tangled History of the Right to Privacy:

Baker shared another episode of the Cyberlaw Podcast in which he sat down with Matthew Heiman, Scott Shapiro, and Nick Weaver to discuss the bipartisan effort to transform the Committee on Foreign Investment in the United States, cryptocurrency firms on the verge of collapse, TikTok, and more:

Herb Lin discussed the functional trade-offs in baked-in cybersecurity in product management.

Susan Landau argued that the EU proposal on combating child sexual abuse material online could present national security problems and relies on technology that does not exist yet.

Steve Bunnell reviewed James E. Bakers The Centaurs Dilemma: National Security Law for the Coming AI Revolution (Brookings Institution, 2020).

Howell shared an episode of the Lawfare Podcast in which Wittes sat down with Asfandyar Mir and Daniel Byman to discuss the current position of al-Qaeda in the world:

Howell also shared an episode of Rational Security in which Alan Rozenshtein, Jurecic, and Scott R. Anderson sat down to discuss the extradition of Julian Assange, Chinese access to TikTok customer data, and Googles potentially sentient LaMDA artificial intelligence program:

Jordan Schneider shared an episode of ChinaTalk in which he sat down with Weijian Shan to discuss Shans personal story of exile during the Cultural Revolution and his view on Chinas economic transformation:

Anoush Baghdassarian analyzed recent cases from the International Court of Justice that Armenia and Azerbaijan each brought against one other for alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination.

Max Johnston and Bryce Klehm shared the final episode of Allies, which they discuss the uncertain long-term legal status of Mahnaz, a former member of the Afghan militarys Female Tactical Platoon, and other Afghans who are on parole after coming to the U.S. during the U.S.s withdrawal from Afghanistan:

Matthew Tokson discussed what a recent ruling from the First Circuit means for Fourth Amendment cases concerning the use of telephone pole cameras for surveillance purposes.

Kyleanne Hunter discussed the potential impacts that overturning Roe v. Wade would have on women in uniform.

And Hyemin Han and Katherine Pompilio shared an application for the fall 2022 Lawfare internship.

And that was the week that was.

Link:
The Week That Was: All of Lawfare in One Post - Lawfare - Lawfare

Digital generated image of purple circular helium balloon with bitcoin sign on it exploding against ... [+] grey background visualising stock market crash.

The looming prospect of compliance with the reporting requirements in section 6050I has been a problem for the digital asset industry since the passage of the Infrastructure Investment and Jobs Act (P.L. 117-58) last November.

The requirements pose procedural obstacles and privacy concerns for taxpayers, but the government has an interest in ensuring compliance with the tax laws.

The revised version of section 6050I requires taxpayers engaged in a trade or business to file an information return when they receive $10,000 or more in digital assets in one transaction or two or more related transactions in the course of that trade or business. The information required is the name, address, and tax identification number of the person from whom the assets were received; the amount of the assets; and the date and nature of the transaction. The provision was originally designed for cash transactions.

The brief push for legislative repeal of the crypto-related portions of the infrastructure bill last year never stood a great chance. The new proposal by Sens. Cynthia Lummis, R-Wyo., and Kirsten E. Gillibrand, D-N.Y., includes an instruction to the IRS to write guidance implementing the changes to section 6050I.

The Responsible Financial Innovation Act is crypto- and taxpayer-friendly on the whole, suggesting that at least two senators who are interested enough in ensuring that the digital asset industry has a favorable regulatory environment in the United States to sponsor comprehensive legislation arent looking to repeal the expansion of section 6050I.

That appears to be something of a trend. The Keep Innovation in America Act (H.R. 6006), introduced in November 2021, would have only delayed implementation of the section 6050I reporting requirements until 2026.

But it would have required the IRS and Treasury to study the effects of including digital assets in the scope of the reporting regime, including the effects on the privacy and liberty rights and interests of taxpayers and other persons affected.

Such a comprehensive study of the cryptocurrency industry and possible legislative design ramifications is a good idea.

Also last November, Sen. Ted Cruz, R-Texas, introduced S. 3206, which would have repealed the information reporting requirement, along with the change to the definition of broker in section 6045.

HOUSTON, TEXAS - MAY 27: U.S. Sen. Ted Cruz (R-TX) speaks during the National Rifle Association ... [+] (NRA) annual convention at the George R. Brown Convention Center on May 27, 2022 in Houston, Texas. The annual National Rifle Association comes days after the mass shooting in Uvalde, Texas which left 19 students and 2 adults dead, with the gunman fatally shot by law enforcement officers. (Photo by Brandon Bell/Getty Images)

He explained that he wanted Congress to study the digital asset industry more carefully before legislating because when it comes to legislating in an area where most Members of this body have very little familiarity of the details, it is highly perilous.

Cruz pointed to the technical difficulty that digital asset industry participants may have in getting the information required under section 6050I, and suggested that aggressive enforcement could decimate the digital asset industry, in a Joint Economic Committee hearing on November 17.

A recent case highlights the pressing need for Congress to be more circumspect in its attempts to regulate both the digital asset industry and the digital privacy of Americans more generally.

Coin Center, along with Dan Carman, Raymond Walsh, and Quiet Industries Corp., filed a suit on June 10 to stop enforcement of the infrastructure bills expansion of section 6050Is reporting requirement for digital assets, arguing that it is facially unconstitutional under the First, Fourth, and Fifth amendments.

In Carman v. Yellen, No. 5:22-cv-00149-KKC (E.D. Ky. 2022), the plaintiffs allege that the requirement would force the disclosure of sensitive information in violation of their reasonable expectations of privacy and their property rights.

The complaint also says that it would threaten to expose the plaintiffs protected associations and thereby chill their expressive activities.

As an example of the breadth of information that the reporting requirements could reveal, the complaint notes that from one [section] 6050I report in 2024, the government could discover that a person donated to a local mosque in 2016, paid for a sons sobriety treatment in 2018, contributed to an unpopular political cause in 2020, and hired a marriage counselor in 2022.

Absent the information reporting, the government typically needs a warrant for a cryptocurrency address to make those types of connections. Extending [section] 6050I to digital assets would not meaningfully assist the IRSs administration of the income tax, the complaint argues.

At the November 2021 JEC hearing, Peter Van Valkenburgh of Coin Center explained that although the Bank Secrecy Act passed constitutional muster because the third parties who bear the reporting requirements hold private information that has been voluntarily given to them for a legitimate business purpose, theres no third party in the section 6050I context.

bitcoin wallet for online cryptocurrency trading

Accordingly, he said the third-party doctrine cannot render a warrant unnecessary for the collection of information such as Social Security numbers. That argument is reflected in the Carman complaint. One of the central stated goals of cryptocurrency is to allow transactions without the intermediary institutions that implicate the third-party doctrine, such as banks and telephone companies, the complaint says.

The Carman plaintiffs first argument is that the reporting requirement constitutes an unreasonable search in violation of the Fourth Amendment.

Digital asset users have developed and adopted a technology designed to preserve personal agency and protect enhanced privacy in transactions, which entitles them to an enhanced expectation of privacy, the complaint states.

The response to the complaint will likely address the legitimacy of the governments interest in getting the information it seeks about transactions in digital assets. There should be some mechanism to allow the government to enforce the tax and other laws.

How to do that when theres no obvious intermediary from whom to require information reporting on specific transactions is a broader debate that was exemplified last year in the expansive proposal for financial account information reporting.

The Carman complaint cites opinions concerning the privacy implications of various laws, including an opinion from Supreme Court Justice Lewis F. Powell Jr. in 1974 that explains, Financial transactions can reveal much about a persons activities, associations and beliefs. At some point, governmental intrusion upon these areas would implicate legitimate expectations of privacy.

The problem is that the justices and judges who wanted to recognize that line werent writing the majority opinions.

The Carman complaint highlights one of the central privacy issues of the digital age in its First Amendment claim based on freedom of association.

The plaintiffs might have difficulty succeeding with this argument in court, because their claim that the inviolability of privacy in associations means that Americans presumptively enjoy a right against reporting mandates is hard to square with the other reporting requirements in the tax code.

They might stand a better chance of finding a sympathetic ear in Congress with their other argument that truly private associations have become the last refuge of Americans fearful of the consequences of engaging in public life.

Part of the challenge here is that financial activities, even in decentralized forms, arent exclusively expressive. Sometimes financial choices are just that business transactions that have no particular First Amendment implications.

Many of them, if exposed, wouldnt reveal expressive associations so much as everyday financial decisions. That could implicate privacy concerns generally, but whether you ordered a book from a huge online retailer or a small local shop doesnt necessarily implicate freedom of association.

The argument is that by forcing disclosure of transactions that arent necessarily expressive, the government could use the information gleaned from them to uncover expressive transactions as well.

Once the government knows how to identify an individual on the public ledger from disclosure of a large transaction, it can find all the smaller transactions too. The trade or business limitation is insufficient because many contributions to advocacy groups would fall within the course of a trade or business, the complaint notes.

The ability to easily produce a full picture of the financial choices of taxpayers because of advances in technology cant be ignored when considering the impact of seemingly limited reporting regimes.

That should now be a universal consideration in the development of reporting requirements, although Congress doesnt seem to be up to speed with the relevant technology.

By highlighting critical modern privacy issues, the complaint provides an opening for their further consideration in the development of reporting regimes. Congress should do its share here, rather than leaving the questions entirely to the courts.

Still, this case will be important to watch because it could offer insight into how the courts might view a proposal like the one from the Biden administration last year to require broad financial account reporting. The contexts are different digital assets versus bank accounts but the arguments about transactional privacy have enough similarities that they could be a preview should that type of proposal be revived.

The Carman complaint notes that the third-party doctrine is restricted to the sharing of information that provides a limited view of a persons affairs, not a detailed mosaic.

In the financial account reporting regime, the $600 threshold for gross inflows and outflows, or even a slightly higher one, would likely have created a situation in which the limited collection of individual information, when aggregated across all accounts and individuals, would have offered a detailed picture.

The plaintiffs have a worthy and serious point about Congresss near-total disregard for individual privacy, but that failure isnt new, and it isnt limited to digital assets.

Protection of digital privacy in the United States is almost entirely absent, leaving those concerns to be addressed by what amounts to a privacy-exploding scheme based on a facade of consent. But the appropriate venue for this broader debate is the legislature.

Go here to see the original:
Tax Information Reporting On Digital Assets Steps Into The Spotlight - Forbes

An image of Eastman appears onscreen during theUnited States House Select Committee on the January 6 Attack public hearings. Photo via Getty Images.

Trump-allied attorney John Eastmans ears are probably burning, considering that the House Jan. 6 Select Committee has recently discussed him at length; specifically, theyve questioned witnesses about an allegation that he came up with a completely bonkers and entirely illegal plan to pressure Mike Pence into overturning the election. (Trump White House lawyer Eric Herschmann testified that he told Eastman his plan was crazy and would lead to violent protests, which he said Eastman essentially shrugged off.)

On Monday, Eastman filed suit in a New Mexico federal court, demanding that the FBI return his cellphone, which he said was seized from him on June 22 in the parking lot of a restaurant in Santa Fe, where he now lives, and where I am from. The resounding response from everyone in northern New Mexico has been twofold: He lives here? and also, more importantly, Which restaurant, though? Through a deranged, time-consuming and Twitter-heavy use of my day, with the aid of family members, Google street view, and, crucially, several friends from high school, I believe I have answered the second question.

Food is a big preoccupation in northern New Mexico, because its the best on earth, and because the choice of where to eat is deeply a deeply political and culturally-specific decision that reveals a lot about the individual. Was Eastman dining at a fancy country club-esque establishment like Quail Run or Las Campanas? Was he out living large at the steakhouse that everyone still calls Steaksmith but is apparently called Bourbon Grill now? Was he eating at the fucking Chick-Fil-A, which only landed in town a few years back? What kind of taste does John Eastman have? Does he even know where the good food is?

Before he was haunting local eateries, Eastman advanced a totally false and obviously bullshit theory of mass voter fraud in a now-infamous memo, where he laid out a step-by-step plan to keep Trump in power, like some kind of hamfisted Scooby Doo villain. In his limited free time, when he has not apparently been trying to subvert democracy and the basic rule of law, he regrettably appears to have moved to Santa Fe. This is not an uncommon problem: weird creeps of national infamy move to New Mexico all the time to be relatively unobserved, like Donald Rumsfeld, who bought a house in Taos, and former Nixon White House Counsel John Ehrlichman, who moved to Santa Fe and grew a beard after serving prison time for his role in Watergate. (His extremely nice daughter taught me piano.)

Public records show that Eastman owns a two-bedroom, two-bath in a relatively nice part of town. Those records indicate that he bought the house in 2003 for a little more than $400,000, and owns another property in Long Beach, CA; Texans and Californians who buy second homes in New Mexico are considered a scourge by locals, and a new legislative proposal would tax their properties at a higher rate. Back in 2008, Eastman also appears to have briefly rented an apartment in a fairly charmless complex on Santa Fes south side, which is very funny, but probably only if youre from here. (Eastman, his attorney, and the Claremont Institute, the conservative think tank where Eastman is a senior fellow, all did not immediately respond to requests for comment.)

In a motion filed in New Mexico U.S. District Court on June 27, Eastman claimed that FBI agents approached him on the evening of June 22 while he was leaving a restaurant. Eastman said that he demanded to see a warrant from them, which he claims they only showed it to him after he was frisked and his phone was seized. The motion also appears to be spinning some other kind of conspiracy theory, reading, The federal agents identified themselves as FBI agents, but they appeared to be executing a warrant issued at the behest of the Department of Justices Office of the Inspector General (OIG). It respectfully demands the return of his phonean iPhone Pro 12and that the court order the OIG to destroy all copies of any information that has already been retrieved or copied from the device. It adds, Movant further requests that any access to the cell phone and its information be stayed until he has a full and fair opportunity to assert and protect his Constitutional rights and the privileged communications of his numerous clients.

A video of the phone seizure also aired Monday night on Tucker Carlsons program on Fox News. Tucker, broadcasting from Brazil for some reason, scowled in constipated anguish as Eastman claimed that his Fourth Amendment rights were being trampled upon. This warrant is invalid on its face, Eastman told him, and likened it to a general warrant that the British king issued to just go rummage through somebodys belongings to see if they could find evidence of some crime.

Thats all certainly a lot of words, if not very good ones. But the restaurant thing immediately seized the interest of New Mexicans; Twitter and a Facebook group called Santa Fe Bulletin Board both immediately filled with heated speculation about where Eastman could have been dining.

I texted several family members to ask their thoughts, one of whom was convinced it was probably Quail Run or somewhere else fancy and secluded.

We witnessed a patron carry on endlessly about water the wait staff spilled on her there, the family member offered. It was quite a performance. We decided they were Republicans by virtue of their demonstration of outrage and personal offense.

This was compelling evidence, but it wasnt quite right. I had no choice but to tweet about this. As soon as I did so, I was joined in a Twitter thread by like seven people I know from high school (more specifically, we all used to go to punk shows together at a teen space called Warehouse 21).

Immediately, using the blurry background of the video that aired on Fox News, we began to speculate. Eastman was clearly in a large parking lot, which suggested one of the major artery roads on Santa Fes south side. Chick-Fil-A seemed like a likely contender, because Eastman seems like exactly the kind of guy who would eat there, and, according to Google Street View, the strip mall where its located is one of the only places that seems to have the kind of large parking lot lights on a high pole seen in the background of the video.

I bet it was Chick-Fil-A, my old friend Dave, who I have not seen in like 20 years, tweeted. Other people in the thread disagreed: wouldnt he be eating somewhere nicer, like The Compound, one of Santa Fes nicest restaurants, or at least The Shed, which has a very long wait and appropriately hot chile and incredibly good frozen mocha cake?

Imagine him being perp walked out of that tiny door, my friend Warren tweeted. (The Shed has a very low entryway). In other words, while that was a super funny visual, it couldnt be right; the Shed is also located near the plaza and faces a very narrow street, not a parking lot.

The sticking point for all of us, busily avoiding our jobs and clicking around Google Maps, were the number of trees in the background of the video, along with those big, high, parking lot lights. The density of the trees suggested somewhere near water, I thought, and the size of the parking lot meant it had to be somewhere on the outskirts of town.

What about something over where Annapurna was? suggested Dave, naming a restaurant thats been closed for years at that location, because all of our references are 15 years old, and we too are old. Whats over there now?

This was a good theory; Annapurna was in another strip mall on the other end of town, near the veterans cemetery. But to me, it didnt ring true; that strip mall is home to a natural foods store (Eastman definitely wasnt there), a sushi place (no), and a pho joint (come on).

Nonetheless, we all checked Google Street View again and realized Dave had to be right. I think Dave actually cracked the case, my other old friend Liz tweeted; she attached a side-by-side comparison of the parking lot and a still from the video. The shape of the lights, the angle of the trees, the power line overhead; it was unmistakable.

The only thing that made sense is that Eastman was there. The question remained was where, exactly, in the strip mall he could be eating. Dave suggested Valentinas, a New Mexican restaurant thats open for dinner, and thats significantly less upscale than anywhere wed had in mind, but perhaps an apt choice for someone trying to portray himself a man of the people. Everyone agreed that the tortas are good and that they have fried ice cream. (My friend Liz pointed out that he was parked closer to Kellys Liquors, and perhaps couldve been there instead; but he said he was having dinner, and we have to take him at his word.)

Warren, whod been about to feed his infant child or something less important, raced to the scene. Im here, he tweeted. He checked with Valentinas staff and the sushi restaurant, neither of whom recognized an image of a flustered white man being frisked by the feds. (The pho place was closed.) Warren also reported that a journalist from Outside magazine, clearly snooping on our important Twitter thread, showed up while he was looking.

Eastman did not immediately respond to a request for comment about whether hed gone to Valentinas and whether he ordered the fried ice cream. Nonetheless, in the impossibly sketchy Trump universe, filled with so many petty, disturbing little mysteries, this one, at least, seems partially solved.

Additional reporting by Warren Langford.

See original here:
Which Santa Fe Restaurant Was Trump Lackey John Eastman Eating At When the FBI Seized His Phone? An Investigation - VICE

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