Category Archives: Fourth Amendment

Editors Note: This is part of a multi-part series on theFISA Section 702reauthorization and reform debate.

Q. There are loud voices on either end of the spectrum with regard to Section 702 of the Foreign Intelligence Surveillance Act (FISA), the intelligence authority set to expire at the end of the year unless reauthorized by Congress. The Biden administration and other supporters of the Section 702 program argue that it should be reauthorized as is; others believe that it should be overhauled (if not allowed to sunset). Where do you fall on this debate? From your experience investigating and litigating prominent national security cases and as an intelligence operations attorney, do you think Section 702 is as imperative as the Executive branch has stated? And likewise, do you think any reforms to the program are necessary or appropriate?

Yes I think it is imperative to reauthorize Section 702. It is a fast and efficient way to obtain important national security information in a manner that complies with the Constitution. But I do want to distinguish Section 702, which is a foreign intelligence tool, from a classic criminal investigative tool. I worked in the Department of Justices National Security Division in three capacities: as a FISA operations and oversight attorney, as a national security policy counsel, and as a cyber and counterespionage prosecutor. My views on Section 702 which are my own and not those of any employer, past or present come more from my experience as an operations and oversight attorney and policy counsel than my time as a national security prosecutor.

And I also think it should be updated, consistent with the history of updates to FISA as the technology, scale, use, and public perception of foreign intelligence surveillance have evolved. In particular, because of the global nature of communications and travel, the built-in safeguards to prevent targeting of U.S. persons and people within the United States have to be periodically updated. And because law enforcement officers and intelligence officers are always thinking of new ways to use the information and systems available to them for good-faith reasons related to keeping the nation safe it is important to keep tabs on, and think critically about, those new uses.

Queries of previously collected information are a great example. At first, for many it was hard to see how searching information that had already been collected pursuant to court-approved procedures would cause a problem. As the practice became more widespread, however, public concerns grew about reverse targeting or routine checks for U.S. person information. This all happened as storage capacity and search capability continued their exponential expansion. New technology and new practices led to new concerns, which led to new rules. That is entirely appropriate.

To me, the important lesson here is that the system worked. The oversight mechanisms built into Section 702, which involve all three branches of government, provided the insight and transparency necessary to surface the issue and address it. That oversight distinguishes Section 702 from many historical and non-U.S. intelligence collection programs.

Q. Thats an important insight on intelligence programs and their oversight structures changing over time as communications and technology evolve. Can you provide some further context on changes to FISA over time and how Section 702 fits into this picture?

I started working on FISA operations in 2005, before Section 702 existed. People may not remember how intense the pace of global counterterrorism efforts was at that time. If you look at publicly available statistics, you can see the drop in full-blown individually targeted FISA orders that occurred after Section 702 became law. If we can infer that this drop is at least partly due to the governments new authority to target, without a particularized warrant or order, the communications of people who are neither U.S. persons nor present within the United States, this makes a lot of sense. There is no Constitutionally based reason to apply Fourth Amendment protections such as particularized findings of probable cause to that group (that is, non-U.S. persons located abroad), and there is a limit to how many individual FISA applications DOJ, the FBI, and the FISA court can process and oversee. So, it is reasonable to come up with a new system that applies Constitutional protections to those who are entitled to them, imposes court supervision over Executive branch activities, and allows for policy-based limitations such as those contained in Executive Order 14086.

Much of the opportunity and need for Section 702 is based on technological change. When FISA was enacted in the 1970s, most international communications were transmitted by radio transmissions. Those communications were exempt from FISA as long as they did not target a U.S. person in the United States and included a party outside the United States. The U.S. government could therefore use technical means to collect those communications with no court oversight at all. Signals intelligence collection can sometimes be unreliable and risky, and if you go visit the NSA museum you will see a memorial wall that shows just how dangerous it could be. But as technology developed, the same foreign communications that the government used to try to pull from the air are increasingly transmitted over the wire and through the United States, where the U.S. government can often acquire them more reliably and safely.

That change in some ways enhances intelligence agencies technical ability to safely acquire those foreign communications. Because people around the world, including in the United States, often use the same infrastructure and services to communicate, it also increases the risk of acquiring communications of U.S. persons or people within the United States. Thats one big reason that close court supervision is required but that oversight can be accomplished without requiring lengthy factual declarations and individualized findings of probable cause.

Q. On that note, lets discuss in more detail one of the proposed reforms: a warrant requirement to query the database of information already collected under Section 702 for U.S. person information. Is there precedent for imposing such a requirement? Do you think it would be a valuable modification to the program?

Requiring a warrant to search previously collected data for U.S. person information is a good idea. I dont think its clear that the Constitution requires it. But thats not the end of the inquiry.

For example, when the Electronic Communications Privacy Act was enacted, there was not general agreement that the Constitution required a warrant to search the contents of email messages a user stores with their service provider, but Congress nonetheless imposed a statutory requirement to provide the same level of protection based on a policy goal of extending a Fourth Amendment level of protection to electronic communications.

Its also helpful to remember that the U.S. government was conducting national security surveillance before FISA without orders, warrants, or any other involvement of judges. When Congress first enacted FISA, there was no consensus that the Executive branch required a warrant to conduct foreign intelligence surveillance. People dont appreciate this now, but FISA brought national security surveillance under judicial supervision. So while the Constitution sets a minimum standard when it comes to civil rights and limits on the government, Congress can go further, and has done so for policy reasons in the past.

There is a case for Congress to do that now. It is essential for Americans to have confidence in their government and particularly in their law enforcement and intelligence agencies commitment to protecting Americans rights. Particularly given the skepticism that currently pervades American society, requiring the government to establish probable cause and obtain judicial approval before searching for a U.S. persons communications within previously collected material would bolster that confidence and is a relatively light burden on the government.

Yes, search warrants take time, and FISA search warrants can be onerous to draft (which is in part the responsibility of DOJ to fix). But when you think about how much 702-acquired data the government may be sitting on and how long it may keep it, you can see how practitioners and the public alike would be concerned that collecting all of that information without probable cause or a warrant based on targeting of non-U.S. persons, and then searching that information for U.S. person information with no further approvals, could be seen as an end-around the warrant requirement. I dont personally see it that way, but a warrant requirement (with an emergency exception) is a small price to pay to earn and maintain the confidence of the American people in their national security institutions.

Q. Some have argued that imposing a warrant requirement for U.S. person queries of the Section 702 database is too onerous. Given your extensive experience in obtaining both FISA and non-FISA warrants, can you walk us through what this would really mean in practice?

Obtaining a criminal search warrant is usually a fairly straightforward process. When I was a local and federal prosecutor, my detective or agent and I would draft an affidavit that was accurate and established probable cause. For physical search warrants, such as a search of a residence, there might be discussions with supervisors about officer safety, means of entry, strategic considerations about alerting the target, the permissible scope of the search, or the potential for media attention. Other than my first several warrants as a junior Assistant District Attorney, I dont remember having a supervisor flyspeck an affidavit or ask for more factual detail. For search warrants targeting electronic communications accounts like email and social media, the process and timeframe for obtaining a warrant were quick and smooth.

In contrast, it is well-known that writing a FISA application and getting it approved for submission is hard and takes a long time. Part of this is by design, and is a purposeful safeguard given the classified nature of the proceedings. Every FISA application has to be approved by the Attorney General (AG), Deputy Attorney General (DAG), or Assistant Attorney General (AAG) for National Security, and has to be certified by the FBI Director or a similar official at an intelligence agency. The legislative history from the 1970s indicates that part of the reason for the high-level approvals is to ensure quality control as well as individual accountability; no one wants to bring a substandard or under-investigated application to a high-level official.

Another reason for this difference is that criminal search warrants are much more likely than FISA orders to be unsealed and revealed to the target at some point. If the execution of a criminal warrant reveals evidence that is later used to charge and prosecute a defendant, the affidavit and warrant are disclosed to the defendant, who can challenge their sufficiency in a motion to suppress evidence. Criminal warrants to search premises or physical property are often provided to the target at or near the time of a search. Criminal warrants to search electronic communications accounts may be subject to non-disclosure orders, but those orders are usually not indefinite and most providers will notify targets when a non-disclosure order elapses and is not renewed. FISA orders, in contrast, usually do not produce evidence that is used in criminal cases and by default remain classified. In fact, even when evidence acquired through a FISA order is used in a criminal case, the order and supporting materials are neither provided to the defendant nor made available to the public. Rather, if a defendant moves to suppress FISA-acquired evidence, the judge who hears the motion reviews the FISA materials without the involvement of the defense.

As a result of these considerations, lessons learned from negative experiences, and, to an extent, bureaucratic inertia, the amount of detail that FISA applications contain has grown to far exceed what would be included in an ordinary criminal search warrant application. This comes at a cost. DOJ attorneys and FBI agents spend substantial time taking questions from supervisors, finding answers, and incorporating new facts into lengthy declarations. And every new detail is an opportunity for an inaccurate or unsupported statement, whether or not the statement is material. Successive rounds of editorial and supervisory reviews add additional time to the process. Each extra requirement, whether official or unofficial, comes from a good place a desire to avoid mistakes, an appropriate response to prior errors, anticipating supervisors questions ,, but they add up can result in extremely lengthy applications that take weeks to prepare. In short, there are some good reasons to have more controls and more review for FISA applications than criminal ones, but it would be worth stepping back and revisiting whether the current system is optimal.

In any event, if Congress does add a warrant requirement, it is likely to contain an emergency exception. In fact, the PCLOB recently recommended individualized judicial review and authorization by the FISC for all U.S. person queries with exceptions limited to consenting U.S. persons or exigent circumstances. Moreover, FISA itself allows the AG, DAG, or AAG to authorize emergency authorities under specific conditions and seek retroactive approval from the court. Fourth Amendment jurisprudence provides an additional exception to the warrant requirement under circumstances such as imminent threats to life and safety. It would therefore be important and reasonable for a new warrant requirement to allow law enforcement to move quickly in the event of an imminent threat.

In that regard, it is important to bear in mind that Section 702 targets overseas threats to U.S. security such as international terrorism. If investigators urgently need to access a U.S. persons communications that were collected under Section 702, that could mean that a potential terrorism threat is crossing the border into the United States (physically, electronically, or otherwise). That is the exact situation in which we need an efficient process in place to allow law enforcement to get the information they need consistent with Constitutional considerations.

A warrant requirement that contained an emergency provision with retroactive approval would provide the accountability needed to maintain public confidence. If configured and implemented properly, it would allow officers to obtain the information they need and move as quickly as necessary, just as they have historically done in the criminal law enforcement sphere.

4th Amendment, Biden administration, communications, Congress, Department of Justice (DOJ), Federal Bureau of Investigation (FBI), FISA Section 702, Foreign Intelligence Surveillance Act (FISA), intelligence community, national security, Right to Privacy, Surveillance, United States

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Expert Q&A with David Aaron on FISA Section 702 Reauthorization ... - Just Security

Six months ago, FBI officials boasted that in 2022 their agents had spied on only 120,000 Americans without search warrants! Under the Constitution, that number should be ZERO.

This revelation is supposed to give members of Congress comfort that the folks we have hired to protect the Constitution are in fact doing so. In reality, the feds continue to assault and violate a core freedom protected by the Constitution the right to be left alone.

The reason for the FBI revelation is the pending expiration of Section 702 of the Foreign Intelligence Surveillance Act and the bipartisan animosity toward its extension.

Section 702 is unconstitutional on its face as it directly contradicts the core language of the Fourth Amendment. It permits the feds to conduct warrantless surveillance on foreign persons who are either physically or digitally present in the United States and all with whom they communicate American or foreign who are located here.

Thus, for example, if you call or text or email an art dealer in Florence, Italy, from your home in New Jersey, or your cousin in Geneva, Switzerland, calls or texts or emails you at your home in California, the FBI can monitor all those communications without a search warrant. And then the feds can monitor the future calls you make and texts and emails you send and receive.

The reason for the search warrant requirement is to prevent a repeat of what British agents did to the American colonists before the Revolutionary War. Then, secret British courts in London issued general warrants to British agents in America, which authorized the bearer to search wherever he wished and seize whatever he found.

When British agents used their general warrants to search colonial homes ostensibly looking for tax stamps in compliance with the Stamp Act, they were really attempting to find who among the colonists entertained revolutionary ideas that might lead to a revolt against the king.

The existence and the enforcement of the Stamp Act proved so unpopular that Parliament rescinded it after just one year of British agents roughing up colonists in their homes. But the former bond between colonials and their king had been irreparably breached and a sea change in colonial thinking pervaded the land. The core of that sea change was not taxation without representation; it was freedom.

To the colonial mindset, freedom had one universal meaning. It meant freedom from the government from king and Parliament.

The sea change in colonial thinking resulted in an ideological welcome mat for the Declaration of Independence. When Thomas Jefferson was holed up in a Philadelphia rooming house for five days in June 1776 writing and revising the Declaration, he thought he was crafting the ideological fountainhead of a minority of landowners who despised the kings authority. Yet, within a year, farmers and artisans and laborers joined the popular and bloody revolt that ended in 1783 with freedom from England.

What about freedom from the new government here?

When the Constitution was ratified six years later, it had no amendments and made no mention of personal liberty. Five of the ratifying states had insisted upon the promise of the addition of a Bill of Rights as a pre-condition to ratification.

And so, the first task of the new Congress was to comply with that promise and craft a Bill of Rights, lest these five states secede from the new union. The colonies-become-states presumed a right to secede. They believed that what they had joined voluntarily, they could voluntarily leave. What became the Fourth Amendment protected the quintessentially American right to be left alone.

It states that the right of the people to be secure in their persons, houses, papers, and effects shall be secure and may be violated by the government only pursuant to a search warrant issued by a neutral judge and based on probable cause of crime, and the warrant must specifically describe the place to be searched or the persons or things to be seized.

There is no exception in the amendment for foreign people, bad people, dangerous people, violent people, people the government hates or fears. By the plain meaning of its English words, the amendment protects ALL people. There is no limitation in the amendment to government personnel engaged in law enforcement. The amendment restrains ALL government. The very purpose of the amendment is to present an obstacle to the government because the amendment protects the natural human right to personal privacy and autonomy from the government.

James Madison who drafted the Bill of Rights and his colleagues made a value judgment consistent with their Judeo-Christian-informed morality; namely, that natural rights trump governmental needs.

The violation of privacy is a form of government aggression. Madison knew the tendencies of government toward aggression. The Fourth Amendment was to be the bulwark against it. The people could protect themselves against private aggressors, but theyd need a clause in the supreme law of the land and independent judges to restrain government aggressors.

After 50 years of studying, teaching, writing about, judging, interpreting and just plain explaining the Constitution, I am convinced that those in government dont believe its words or accept its values. They dont feel bound by it.

They have crafted mechanisms of all sorts like Section 702 to evade and avoid it. They will claim that it impairs their duties. Yes, it does intentionally so, and in the name of personal liberty. Today, liberty is impaired for foreign persons, an immutable characteristic. Tomorrow it could be impaired for any other immutable trait. Of what value is a Constitution with congressionally crafted, politically based exceptions? None.

Section 702 expires on Dec. 31, 2023. Last week, President Joe Biden asked Congress to renew it. It should die a natural death. Paraphrasing Justice George Sutherland, if the provisions of the Constitution are not upheld when they pinch as well as when they comfort, they may as well be abandoned.

Tags: FBI, Section 702, Surveillance

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A Constitution the Government Evades - Tenth Amendment Center

From the decision earlier this month by Judge F. Kay Behm (E.D. Mich.) in Rideout v. Shelby Twp.:

This case arises from Rideout's arrest after a series of protests against the Shelby Township Chief of Police, Robert Shelide, a defendant here. On June 16, 2020, Chief Shelide was suspended for thirty days after having made multiple posts on a Twitter Account using a pseudonym supporting racist ideals and endorsing police brutality. On July 1, 2020, July 15, 2020, and July 20, 2020, Rideout participated in protests against Shelide. On the evening of July 20, 2020, local media interviewed Rideout, who criticized Shelide's return from suspension and called for his resignation.

According to the SAC [Second Amended Complaint], in response to Rideout's criticisms, the named Defendants worked together to retaliate against him for exercising his constitutional rights under the First Amendment. Rideout alleges that Shelide and the police officer defendants colluded to conduct a pretextual investigation of his activities on July 20, 2020 to fabricate a misdemeanor charge of violating Mich. Comp. Laws 257.602 (failure to comply with the order or direction of a police officer) and presented false or misleading facts to the prosecutor's office. No other protester was arrested for their participation in the July 20, 2020 protests/demonstrations.

The SAC alleges that Defendant Ermir Villa's police report, which served as the basis for the warrant, was untruthful and failed to include exculpatory evidence. The SAC further alleges that Villa, the other Defendant officers, and Shelide were all aware at the time the arrest warrant was obtained that Rideout sought to cooperate with officers at the protest, asked for more time to disperse the crowd, and the officer on the ground granted that request. Despite this knowledge, Defendants colluded to omit this information from the presentation of evidence to the prosecutor and magistrate who issued the warrant.

In 2021, Rideout filed a motion to dismiss the charges based on a lack of probable cause and insufficient evidence. After an evidentiary hearing, the state court judge dismissed the charges, ruling:

a) "I would note just as an aside, that I thought it was somewhat unusualsomewhat unusual for the Defendant ("Rideout") to be charged after the fact and arrested several days later rather than the date of the alleged incident, which typically would be the case and was the case on some of these other matters."

b) "As I've indicated, I spent a lot of time looking at the videos. The video shows aa number of times where the Defendant, Mr. Rideout, did discuss issues with the police officers involved. It did seem like he was trying to control the crowd; control the participants. At one point, directing 6 them off of the roadway, and it did appear that he was atat certain times assisting the police officers. I did see that he was, in fact, thanked by one of the police officers for that assistance."

c) "I just did not feel that there was sufficient evidence under the circumstances to sustain the charge and to go to trial on the matter."

d) Case was dismissed.

The court allowed plaintiff's First Amendment claim to go forward:

Although probable cause generally will defeat a 1983 First Amendment retaliation claim, two exceptions exist where, as here, the defendant officers are being sued in their official capacity. For the first exception to apply, the Supreme Court held that (1) there must be an "official municipal policy of intimidation"; (2) the municipality must have "formed a premeditated plan" to retaliate against the plaintiff; (3) the plaintiff must present "objective evidence of a policy motivated by retaliation"; (4) there must be "little relation" between the protected speech and the offense that led to the arrest; and (5) the protected speech must be "high in the hierarchy of First Amendment values," such as the freedom to petition. Lozman v. City of Riviera Beach (2018). The second exception applies where "a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been," the existence of probable cause will not preclude a First Amendment retaliation claim. Nieves v. Bartlett (2019).

Rideout's SAC alleges that he was the only protestor at the July 20, 2020 protest who was arrested, despite the fact that multiple protestors engaged in the same actions as he did. The SAC further alleges that Defendants' investigation of him was initiated as a pretext to execute their plan to retaliate against him and intimidate him for exercising his First Amendment rights to protest Shelide. This suggests that Rideout's retaliation claim falls within the exception outlined in Lozman and the motion to dismiss Count I is denied for this reason. Moreover, as discussed below, the SAC has sufficiently alleged a lack of probable cause such that a claim would also survive on this basis.

And the court held the same about the Fourth Amendment claim:

[This claim] is based solely on the Fourth Amendment, not the First Amendment and thus, the above-described exceptions do not apply. And claims for false arrest and false imprisonment fail when there is probable cause to support the arrest.

Rideout alleges that Defendants "omitted crucial, known details of the protest, including that Plaintiff had sought to cooperate with officers on scene, had directed protesters out of the street himself on behalf of the police, and, crucially, obtained permission from officers on scene for more time to disperse protesters from the street." Rideout points out that a facially valid warrant is not always sufficient to merit summary judgment or dismissal in an action brought pursuant to 1983 when evidence exists that a defendant intentionally misled or intentionally omitted information at a probable cause hearing for an arrest or a search warrant provided that the misleading or omitted information is critical to the finding of probable cause. [Rideout] asserts that Defendant Vila left "exculpatory evidence" out of his police report when submitting his warrant request, namely that Rideout sought to cooperate and was granted more time to disperse the crowd by an officer and that Defendants knew this. Defendants contend that the court should reject Rideout's contention because the video of the protest shows that he did not obey police commands and, therefore, there is probable cause to support the arrest warrant.

A police officer has probable cause to arrest a suspect if the "facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing or is about to commit an offense." "Generally, probable cause exists when the police have 'reasonably trustworthy information . sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.'" Moreover, an officer is required to "consider the totality of the circumstances," and cannot look only at the evidence of guilt while ignoring all exculpatory evidence when assessing probable cause. "In general, the existence of probable cause in a 1983 action presents a jury question, unless there is only one reasonable determination possible."

Even considering the evidence offered by Defendants (which in the view of the court is not inconsistent with [Plaintiff's] allegations .), neither party offers any type of analysis regarding probable cause and whether the evidence that "Plaintiff had sought to cooperate with officers on scene, had directed protesters out of the street himself on behalf of the police, and, crucially, obtained permission from officers on scene for more to time to disperse protesters from the street" would alter the probable cause analysis. In these circumstances, viewing the evidence in the light most favorable to Rideout, and given that the video does not contradict [Rideout's claims], the court cannot say there is only one reasonable determination possible regarding probable cause, and thus the complaint has sufficiently alleged a lack of probable cause.

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First and Fourth Amendment Claims Over Arrest at Protest of Police ... - Reason

I am writing this to make you aware of a situation that has happened in our great state of Montana. As Montanans we pride ourselves on being independent and self-reliant. We like our space, our gun ownership, and our civil rights. Statewide, and Nationwide, there is an ongoing problem with how police respond to those experiencing a mental health crisis. As I am sure you are aware, Montana has one of the highest rates of suicide in the Nation. For all age groups, Montana has ranked in the top five for suicide rates in the nation, for the past thirty years. With these statistics, Montana is bound to have issues related to how police respond to citizens struggling with suicide. Which is exactly what happened to my family.

My son, Trevor, was shot and almost killed on September 27, 2021 by Anaconda police during a welfare check. He was in an emotional crisis when a phone call from an ex-girlfriend was made to 911 for a welfare check. Police showed up and tried to make contact for approximately 40 minutes, but were unable. They decided to violate the law and the fourth amendment of the constitution and enter his house without a warrant or probable cause. Exigent circumstances did not exist either. When officers are confronting a suicidal subject who isnt committing a serious crime and isnt an active threat to anyone other than themselves, the best response is for them not to engage and to withdraw from the situation. They did not do that in this situation, and instead escalated it. Upon entering, the chief of police can be heard on body-worn camera saying my sons name Hey, Trevor, its (chief of police says his name) come talk to me buddy. My son said in his statement to the State investigator, while laying in his hospital bed 3 days after fighting for his life, I just wanted to be left alone. I didnt think they could just come into someones house. When I knew they wouldnt leave and were in my house I went to go talk to them and boom! I got shot. I thought I was coming out to people who were there to help me, not AR-15 assault rifles! My son was in the closet of an upstairs playroom for his daughter that has a curtain for a door. It was 4/10 of a second between when the curtain moved and the shot was fired. The officer, as soon as he pulled the trigger, is heard on the body camera saying oh shit; I saw the fucking curtain move and let one fly. A gun was found on a basket by the closet, and the officer who shot him is heard saying on body camera, I dont know where that came from; he could have had it. I dont know. To cover their own asses they charged Trevor with assaulting the police officer. A former Anaconda police officer and friend told us that the officers did not follow what they had been taught at the police academy. They refused to admit to wrong doing.

The District Judge Dayton banned the use of the fourth amendment in defense. My son was convicted of assault on a police officer on December 8th 2022, when in reality they assaulted him in his own home while he was exercising his constitutional right to be safe in his home. He is a veteran, a wildland firefighter and a teacher. Our family has always been connected to the community and are productive members of society. We held important jobs in the community as well as participating in a variety of community programs. My son does not have a criminal record. Does anyone feel safe if cops can lie to cover their own asses? The officer who shot my son testified that he thought he saw a gun in Trevors left hand. Body camera footage proves that to be a lie. He did not say a single word about seeing a gun directly after the incident. The ex girlfriend who called 911 testified that Trevor threatened the cops in her phone conversation with him and that she heard what she thought was a gun shot. In her call to 911, she can be heard calmly saying she heard a pop. The noise she heard was Trevor throwing his phone against his metal kitchen cabinets because he was mad. The ex girlfriend said nothing about Trevor threatening the cops in her 911 call because he didnt. The CEO, Bill Everett, and county attorney, Ben Krakowka, allowed the police to cover up an accidental shooting, and even aided in the criminal act. The county attorney, Ben Krakowka, actually prosecuted my son. I believe they prosecuted Trevor because the cops wouldnt admit to wrong doing! I just cant believe the jury believed the lies and found him guilty as well. I am worried there was intimidation or jury tampering in this case. In addition there is corruption in our police department as well as our county government.

We need to take a stand against violations from our elected officials and police officers. This could have been your son or daughter. Right now we are not safe in our homes! If they really cared for my son and thought he might have hurt himself, why didnt they call EMS to the scene? Why did they wait 40 minutes outside the home if they thought he might need medical attention? They didnt call EMS until after he was shot by them. Under oath one captain said I dont have first aide. only CPR. Same captain said when asked why they didnt have an ambulance on scene, Oh, theyre just down the road. Dont our officers have to have basic skills? Especially if they think they can go into your homes to save someone when they dont even have the basic skills. Please help me get my story out and stop our elected officials from damaging my son and our community anymore! We would love to tell our story and save lives. As a mother and friend, Im asking for support to stop the abuse of laws and our constitutional rights as voters and tax payers by our elected officials. Call them and ask for justice!

The rest is here:
Law enforcement violation of the fourth amendment - Daily Kos

The D.C. Circuit Court of Appeals heard arguments Thursday about the constitutionally permitted length of police seizures in a case brought by protesters whose phones have been confiscated indefinitely since their arrests in the 2020 Black Lives Matter demonstrations.

The protesters want their phones back, and the central question judges sought to hammer out was when a law enforcement seizure must end or become a violation of the Fourth Amendment.

The American Civil Liberties Unions D.C. chapter argued on behalf of a collection of protesters and freelance journalists that a seizure is still active, and thus must pass Fourth Amendment scrutiny, because the Metropolitan Police Department remains in possession of the phones.

Further, the ACLU argued, because the U.S. Attorneys Office in the District either has settled or never brought criminal charges against the 40-plus people arrested, there is no investigative purpose for MPD to keep the phones.

However, the D.C.s Office of the Attorney General argued that the seizure itself was legitimate and the question of when a lawfully seized item must be returned to its owner is beyond the scope of the Fourth Amendments guarantees against unreasonable searches and seizures.

Appellate judges expressed some understanding of the ACLUs position, saying the seizure could still reasonably be construed as ongoing.

It may have been OK initially, but youre still holding this many months later for no reason, Senior Circuit Judge Harry Edwards said to OAG attorney Marcella Coburn.

Judge Edwards added that the governments seizure and continued possession of the phones sounded like a Fourth Amendment problem.

Ms. Coburn countered by saying the manner in which the phones were first seized when the protesters were accused of felony rioting in 2020 was justified, as a district court judge agreed.

In an opinion issued last August, the U.S. District Court said case law cited by the ACLU to argue Fourth Amendment violations related to how police performed searches and seizures on those who hadnt been accused of a crime.

But in this case, the protesters had their phones taken when arrested, meaning the case law they were citing didnt apply.

As discussed, every Circuit has held that the Fourth Amendment does not protect against the prolonged retention of lawfully seized property, Judge Amit Priyavadan Mehta wrote in his opinion at the time. Plaintiffs have not cited a single case that says otherwise.

Appeals Court Judge Gregory Katsas on Thursday asked Ms. Coburn whether the government has an obligation to return the property it seizes from people who are arrested but not criminally charged.

Ms. Coburn agreed, but said it was applicable under Rule 41(g) of the Federal Rules of Criminal Procedure, not the Fourth Amendment grounds the plaintiffs were arguing.

She argued further that the ACLUs position, if backed by the court, could elevate every unreasonable refusal to return property after a lawful seizure into a Fourth Amendment violation.

Judges were unsure whether Rule 41(g) which stipulates that [a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the propertys return would apply to the civil case brought by the ACLU.

ACLU attorney Michael Perloff agreed that some of the plaintiffs were confused about how to go about that process since they didnt have criminal cases brought against them.

Mr. Perloff said the Fourth Amendment doesnt prevent the government from holding onto property for a few hours or even days to secure a search warrant, but it does prevent law enforcement officials from keeping property as long as they please.

It has been more than three years since some of the plaintiffs were arrested in August 2020.

The plaintiffs attorney argued that the Supreme Court has said in United States v. Place that taking someones property and not telling the person how to get it back infringes on their liberty regardless of the context in which it occurs.

While the named plaintiffs did get their phones after months of seizure, the Metropolitan Police Department has still not given us any information indicating that it returned the phones to the rest of the protestors, Mr. Perloff told The Washington Times in a statement.

This is concerning because, given the pending litigation, we would think MPD would have provided us with information to that effect if the phones had been returned, he said.

The court did not announce when it would release its decision in the case.

Read more:
D.C. Appeals Court weighs whether phone seizures from 2020 ... - Washington Times

Sept. 11, 2023

BY DAVE PRICE Daily Post Editor

Its always a good idea to turn off your phone at church. Not just for the obvious reason you dont want it to ring during the sermon but the Santa Clara County government might be using your phone to spy on you at church.

You might laugh at that and doubt that the county would do such a thing. After all it would be a blatant violation of the Fourth Amendment, which protects your right of privacy and requires the government to get a warrant, and the First Amendment, that allows people to exercise their right to religious freedom.

You might be thinking that the county board of supervisors would put a halt to it and promise the public it would never happen again.

But that hasnt happened.

This spying was brought out into the open in a federal lawsuit filed Aug. 22 by Calvary Chapel in San Jose.

That church has been fighting the county over its pandemic restrictions and the county has fined them more than $1 million. That case is still pending.

Calvary argues that religious services were essential during the pandemic.

Pastor Mike McClure said at a 2021 court hearing that he heard from people suffering from anxiety, depression and even thoughts of suicide.

A church might be the only refuge for a small business owner who lost everything because of Health Director Dr. Sara Codys latest edict.

Calvary alleges that county employees hired a data company called SafeGraph to geofence church members using data emitted from their phones.

The suit said the year-long surveillance operation had no boundaries. They tracked church members in the prayer room and the bathroom.

If this were happening at a Muslim mosque, activist groups would be screaming. The supervisors would have fired the employees who authorized this and denounced their actions. But in this case, nothing has happened.

By doing nothing, the supervisors are telling their employees that this kind of Orwellian surveillance is OK. Who will be their next target?

Anyway, my tip for the day is: remember to turn off your cellphone before you go into church.

Editor Dave Prices column appears on Mondays. His email address is [emailprotected].

Excerpt from:
Opinion: Why you shouldn't turn on your phone in church Palo Alto ... - The Daily Post

Bill Neri presents Hon. Dineen Riviezzo with a certificate of appreciation on behalf of the Court Attorneys of Kings Supreme Criminal Term. The gesture recognized Justice Riviezzo's contribution to legal education, during the Continuing Legal Education seminar held at the Kings County Supreme Court, Criminal Term. Photos courtesy of Bill Neri

On Monday, Sept. 18, the court attorneys of Kings Supreme Criminal Term convened for a timely Continuing Legal Education seminar. The stately chambers of the Kings County Supreme Court, Criminal Term, played host to the event that witnessed a fusion of legal acumen and collegial exchanges.

Formed by Bill and Maria Neri, both court attorneys working within the system, the group was established as a forum to deliberate on issues prominent within the courts ambit. However, the groups trajectory has since expanded. Beyond being a discussion platform, it has grown to host quarterly CLEs, promoting the continual professional development of its members.

This past event marked the groups second quarterly CLE. The highlight was an insightful lecture by Hon. Dineen Riviezzo, a distinguished judge of the Court of Claims. The discourse, aptly titled Guidelines for Assessing Expert Testimony, sought to shed light on the nuances and considerations pivotal to evaluating expert evidence in court settings.

Justice Riviezzo explained the criteria and standards by which courts evaluate the admissibility and credibility of testimony provided by expert witnesses. This encompasses ensuring the experts qualifications, determining the scientific or technical validity of the methodology used by the expert, and assessing the relevance and reliability of the testimony to the particular case at hand.

The goal is to ensure that juries receive sound and unbiased expert opinions, helping them make informed decisions. These guidelines are influenced by, and sometimes based on, legal precedents and foundational decisions, such as the Daubert standard at the federal level, which set criteria for the admissibility of expert witness testimony.

Bill Neri, one of the groups founders, shared his enthusiasm ahead of the event, saying, Exceptionally excited that the court attorneys of Kings Supreme Criminal Term will be hosting Judge Dineen Riviezzo and her presentation, `Assessing Expert Testimony, for our second quarterly CLE.

Justice Riviezzos credentials were clearly evident. Her robust legal career, spanning diverse roles, provided the backdrop for the days content. She began her journey in the legal world after earning an undergraduate degree from Boston College and subsequently, a J.D. from Georgetown University Law Center.

From being an attorney at the State Inspector Generals Office and chair of the NYS Commission of Investigation to serving at the Law Firm of Clifford Chance and undertaking duties as an assistant district attorney with the New York County District Attorneys Office, her multifaceted experiences lent an enriched perspective to the lecture.

This CLE session follows a highly successful inaugural seminar held on May 17 with Hon. Barry Kamins, the former administrative judge of the same courthouse. Justice Kamins lecture, which focused on the Fourth Amendment and the latest changes to the law, was met with an overwhelming response, underscoring the eagerness among court attorneys to learn from luminaries of their profession.

The steadily growing influence and organization of the Court Attorneys group hint at many more such enlightening sessions to come, continuing their mission of enhancing the legal fraternitys expertise and addressing the pressing issues of the day.

The group is currently in the planning stages of its next CLE meeting this coming January.

September 25 | Rob Abruzzese

September 25 | Rob Abruzzese

September 25 | Rob Abruzzese

September 25 | Rob Abruzzese

See the original post:
Court attorneys group hosts CLE seminar with esteemed Justice ... - Brooklyn Daily Eagle

ALBUQUERQUE, N.M. Alexander M.M. Uballez, United States Attorney for the District of New Mexico, and Raul Bujanda, Special Agent in Charge of the Federal Bureau of Investigations Albuquerque Field Office, announced today that Michael Andrew Martinez has been arrested on a criminal complaint charging him with deprivation of rights under color of law and obstruction of justice. Martinez, 33, of Las Cruces, New Mexico, will appear in federal court for an initial appearance today.

According to the criminal complaint, on or about April 30, 2023, Michael Andrew Martinez, while working in his official capacity as an officer with the Doa Ana Sheriffs Office (DASO), allegedly kidnapped and sexually assaulted the victim, Jane Doe, thereby depriving Jane Doe of her Fourth Amendment right to be free from unreasonable searches and seizures. Martinez allegedly then obstructed justice by attempting to destroy evidence related to his kidnapping and sexual assault of the victim.

A complaint is only an allegation. A defendant is presumed innocent unless and until proven guilty. If convicted on the current charges, Martinez faces up to life imprisonment.

The Las Cruces Resident Agency of the FBI Albuquerque Field Office investigated this case with assistance from the Doa Ana Sheriffs Office and the New Mexico State Police. Assistant U.S. Attorneys Marisa Ong and Matilda McCarthy Villalobos are prosecuting the case.

In addition to the Doa Ana Sheriffs Office, Martinez was previously employed by the New Mexico State Police and Hatch Police Department. If you have reason to believe you or someone you know may be a victim of Martinez, or if you have information about this ongoing investigation, please call the FBI at (505) 889-1300 or submit their tips online at tips.fbi.gov.

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Read the original here:
Former Dona Ana County Deputy Sheriff Charged with Federal Civil ... - Department of Justice

Is your home your castle? Even as a renter, what right to privacy do you have?

We believe renters deserve the legal right to maintain a secure and safe home, even from a nosy government. Sioux County District Judge Jeffrey Neary made that clear by rejecting an Orange City rental property inspection ordinance.

Orange City thought it had the power to search rental residences for health and safety violations, and snoop for possible criminal violations as well, even without any probable cause. This flies in the tradition of a person being secure in their home.

The court finds here that there needs to be more safeguards or protective measures put in place as there are currently none in place in Iowa for the district court to use when considering a request or an application for an administrative search warrant, Neary said in his Aug. 31 ruling.

He said the city needs evidence there is a health or safety violation before intruding upon a rental property. It also is required to have the consent of the people living there.

The government cant just force its way into a home; we established that during the Revolutionary War, when Americans objected to being required to house British soldiers.

The Fourth Amendment of the U.S. Constitution safeguards Americans from unreasonable search and seizure, and Article I, Section 8 of the Iowa Constitution ensures that precious protection exists in our state as well. Somehow, Orange City didnt grasp that.

We understand the desire to keep all homes safe and to protect the people living in them. But this was intrusive, not protective. The fact that home inspectors also were acting as agents and informants for the police department also is troubling. Thats not a proper role for these city employees.

The judge said the residents deserve advance notice and should have the right to reject such an inspection, or limit the areas being searched. They maintain the right to ask the city to inspect the property, in part to avoid landlords who are not providing proper living conditions.

This legal battle was started in May 2021. It took more than two years to establish that in Orange City, renters have rights.

Erika and Bryan Singer, their landlord, Joshua Dykstra, and another landowner, Bev Van Dam, brought the legal challenge. A third renter, Amanda Wink, originally was in the group but moved out of Orange City before a decision was reached.

John Wrench was their lawyer, and he rightfully noted the importance of this ruling.

It is a serious victory, really, for all Iowans right to be secure against nonconsensual, suspicionless searches of their homes, including renters, Wrench said.

Bryan Singer said its a simple matter of right and wrong. Why did the city think it could enter a rental property without permission? It boggles the mind, frankly.

I didnt ask for it. I didnt mandate it. So, I dont want them here, he said. At what point do you lose your rights? What rights do I even have? It shouldnt be just because Im renting that Im a second-class citizen.

Exactly. We applaud these residents for taking a legal stand, and Judge Nearly for correctly supporting it.

See the article here:
Editorial: Renters rights ruling | Opinion - nwestiowa.com

WASHINGTON U.S. Attorney Matthew M. Graves released the following statement on the package of bills and initiativesknown as the Secure DC Planproposed by D.C. Councilmember Brooke Pinto. The plan includes the Addressing Crime through Targeted Interventions and Violence Enforcement (ACTIVE) Amendment Act of 2023.

I am glad Councilmember Pinto introduced these bills, and I support her plan to improve public safety in the District. These provisions will better enable our office to prosecute cases that are harming our communities and fill legal gaps that will make our residents safer.

U.S. Attorney Matthew M. Graves provides the following additional statement:

This legislation includes a number of common-sense fixes, such as making clear that being shot is a severe assault that should be treated as the serious bodily injury that it is, and making clear that whether an armed gunman takes your car from you, or forcefully takes your keys from you to steal your car, it is all carjacking.

As the community begins to consider this important package, I have noted that the provisions addressing how we better protect our community from gun offenders and those charged with gun offenses who remain in the community have already garnered much attention. Before discussing those provisions, I want to explain how our system currently operates. In the District, people charged with illegally possessing a firearm are typically released pending trialeven when they have previously been convicted of a felony. While there is a presumption in the D.C. Code that these individuals will be detained pending trial due to the inherent dangerousness of firearms offenses, most are released.

Moreover, a majority of the people convicted of carrying a pistol without a license in the District are sentenced to a period of probation, which is permitted under the D.C. Sentencing Guidelines. Put simply, the typical result of a prosecution for illegally carrying a firearm is that the person charged will be in the community pending the resolution of his or her case and, if convicted of carrying a pistol without a license, will be sentenced to a period of probation. Our criminal justice system needs to reflect the reality that many individuals found with guns are being released back into our community after having served little to no time in jail.

This legislation, if enacted, will be narrowly tailored to work to stop people who are given the opportunity to remain in the community despite having been convicted of gun offenses, or people given the opportunity to be released pending trialnotwithstanding a presumption of pretrial detentionfrom re-arming themselves while they are under supervision.

This will allow law enforcement to search a limited category of people foramong other thingsguns that they are carrying in public places in violation of their conditions of release. This provision recognizes that swift and certain apprehension is an effective deterrent to criminal activity, and draws from research from the U.S. Sentencing Commission showing that people convicted of gun offenses have higher rates of recidivism.

We have reviewed similar legislation from California and other states, and the court decisions affirming their constitutionality, including decisions from the U.S. Supreme Court. Based on judicial precedent, we are confident that the legislation complies with the Fourth Amendment, and if this legislation is enacted, we are prepared to defend the statutes constitutionality in court.

The rest is here:
U.S. Attorney's Statement Regarding Proposed Changes to Crime ... - Department of Justice