Category Archives: Fourth Amendment

A volunteer with the Buffalo Field Campaign was viewing a bison-hazing operation in 2012 when he was cited for obstructing the hazing. The Ninth Circuit on Monday ordered his First Amendment case back to federal court to be heard by a jury.

WEST YELLOWSTONE, Mont. (CN) Anthony Patrick Reed may one day get his day in court on behalf of Yellowstone National Parks wild bison, after the Ninth Circuit ruled Monday that a jury should have determined whether the volunteer for the Buffalo Field Campaign had his First and Fourth Amendment rights violated during a 2012 federal government hazing of bison back into Yellowstone National Park.

In July 2012, Reed tried to document the federal governments hazing of wild bison back into Yellowstone National Park. After a Gallatin County sheriffs deputy told Reed to move his car out of the line of bison, Reed complied and moved to a nearby gravel road. Deputy Douglas Lieurance threatened to arrest Reed, and ultimately issued Reed a misdemeanor citation for obstructing the herding operation.

Reed sued in Montana federal court in 2013, naming Lieurance, Gallatin County sheriff Brian Gootkin and Gallatin County as defendants.Reed argued Lieurances actions violated his First and Fourth Amendment rights and related Montana constitutional rights, and that Gallatin County Sheriff Brian Gootkin, the Sheriffs Office, and Gallatin County have a policy or practice of providing constitutionally inadequate training to law enforcement officers.

Rebecca Smith, a civil-rights attorney who represented Reed, said Mondays Ninth Circuit ruling affirms constitutional rights.

It was a case where volunteers with a nonprofit group were trying to document and observe a government operation on public land from the sidelines without actually protesting or interfering with it, she said. That was the key take-away in this case a reaffirmation that peacefully observing and documenting government conduct in a public place is protected conduct under the First Amendment and Montana citizens cannot be arrested for obstruction for exercising this First Amendment right.

Bison can carry the brucellosis virus, a disease that is harmful to cattle, and in Montana bison are hazed back into Yellowstone National Park to protect that states cattle. Toprevent collisions between cars and bison during the hazing operations, county law enforcement had set up a blockade along Montana Highway 191. According to court documents,Reed had initially parked his vehicle just east of Highway 191 in order to get a clear view of the buffalo as they crossed the highway.

While Reed was parked in that spot, a Gallatin County law enforcement officer approached the vehicle and advised Reed he was parked in the planned herding route and needed to move his vehicle. Reed complied but was cited.

A federal judge dismissed some of Reeds claims on summary judgment and granted judgment as a matter of law for defendants on the remaining claims after Reed presentedevidence at trial. Reed appealed those decisions, as well as the exclusion of Reeds expert witness and denial of his motion to amend the complaint. Defendants cross-appealed the judges denial of attorney fees.

In a ruling issued Monday, the Ninth Circuit panel said it could not conclude that as a matter of law that a reasonably prudent officer in defendant Deputy Lieurances situation would have had probable cause to believe that Reed obstructed the bison herding operation. Instead, the circuit judges determined the trial court improperly invaded the province of the jury by resolving factual disputes material to the question of probable cause.

The panel also found defendants were not entitled to summary judgment on Reeds unlawful seizure claim.

Additionally, the panel reversed the trial courts sua sponte dismissal of Reeds failure-to-train claim on the grounds that the judge did not first provide Reed with notice and an opportunity to respond before dismissing the claim. The panel also sided with Reed by finding the trial court abused its discretion by excluding the testimony of Reeds police-practices expert as it related to the failure-to-train claim.

The panel held the lower court committed reversible error in granting judgment as a matter of law on Reeds First Amendment and related state claims without first providing Reed notice of the grounds for the decision. Addressing the merits of the First Amendment claim, the panel held thatin ruling that defendants were entitled to judgment as a matter of law, the lower court improperly resolved numerous factual disputes reserved for the jury.

The panel determined that it lacked jurisdiction to review the trial courts denial without prejudice of defendants motion for attorney fees and therefore dismissed defendants cross-appeal from that order.

As for the grant of summary judgment for defendants on Reeds claim of unreasonable seizure in violation of the Fourth Amendment and its corollary in the Montana Constitution, the panel said probable cause likely did not exist for the officer to cite Reed.

The panel said probable cause exists when the facts and circumstances within an officers knowledge are sufficient for a reasonably prudent person to believe that the suspect has committed a crime.The analysis involves both facts and law. The facts are those that were known to the officer at the time of the arrest. The law is the criminal statute to which those facts apply.

Montanas right to privacy laws guarantees far greater protection than the U.S. Constitutions Fourth Amendment, the panel said.

Under Montana law, if an officer makes an arrest without probable cause, he or she may be entitled to qualified immunity as long as it is reasonably arguable that there was probable cause for the arrest.

The trial court ruled Lieurance had probable cause to arrest and cite Reed for the obstruction.But in City of Kalispell v. Cameron, the Montana Supreme Court reversed a conviction for obstruction when the defendant had merely failed to follow an officers instructions. Thecourt in that case explained that an individual obstructing a peace officer must engage in conduct under circumstances that make him or heraware that it is highly probable that such conduct will impede the performance of a peace officers lawful duty.

Portions of Reeds case that remain have been remanded to federal court, and the Ninth Circuit panel ordered the assignment of a new judge.

Rebecca Kay Smith of Missoula, Montana, represented plaintiff Reed. Steven Robert Milch of Billings, Montana, argued the case for defendants.

Circuit Judges Alex Kozinski and William Fletcher joined the opinion by Chief District Judge John R. Tunheim, sitting by designation from the District of Minnesota.

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9th Circuit Revives Bison Observer's Civil Rights Claims - Courthouse News Service

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The Fourth Amendment Implications of Sharing Server Space - JD Supra (press release)

Columnist's facts on gun violence are inaccurate

Milt Hankin's recent column demonizing rifles is short on facts and inaccurate on laying blame. Mr. Hankins inquires whether America is more violent now than ever. According to the FBI, crime has fallen drastically over the last 20 years, including crimes involving the misuse of firearms, and accidental firearms fatalities are their lowest level since record keeping began in 1903, according to the National Safety Council.

He argues the Second Amendment was written with muskets in mind. But the Fourth Amendment applies to computers and cellphones even though it was written with a quill pen. The Supreme Court in Heller addressed this specious argument in its decision holding the Second Amendment applies to bearable arms commonly owned, not just muskets that existed at the time the Bill of Rights was ratified.

Mr. Hankins blames the tool instead of the criminal wielding the tool. He mislabels the most popular rifle in America, the AR-15, as an "automatic" firearm, which it is clearly not. Automatic firearms, like the military M-16, are, with extremely limited exception, heavily regulated from private ownership.

Mr. Hankins evokes the tragedies of Newtown and Aurora to suggest law-abiding gun owners are a ticking time bomb. His answer is to ban the manufacture and sale of modern sporting rifles like the AR-15. America tried that. From 1994-2004, the sale of these rifles was banned but the ban had no effect on crime rates. It's not the rifle. It's the criminal.

Senior vice president, general counsel

National Shooting Sports Foundation

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Voice of the people - Huntington Herald Dispatch

On July 17, 229 years after ratification of the Constitution, Jeff Sessions, the honorable attorney general of the USA, issued his recommendation that asset forfeiture be increased.

Meanwhile in middle town USA, a collective shrug of the shoulders was the response. Who cares if a few drug dealers have their ill-gotten gains taken from them? Yet, it is a shame if innocent Americans happen have their property and cash taken from them without due process of law. There must be a good reason for this gross violation of the Fourth Amendment.

As a matter of fact, thanks to Sessions, we now know the Founding Fathers had it all wrong. We are not innocent until proven guilty, and we owe Sessions our gratitude for correcting a 200-year-old mistake in our justice system.

Since he has determined we are all inherently guilty, it is futile to try to prove our innocence. Therefore, the only patriotic thing to do is to voluntarily forfeit our assets so he won't waste our tax dollars seizing them.

Donald Harris

Whitehall Township

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Attorney General Sessions ignores 4th Amendment - Allentown Morning Call

The Fourth Amendment of the Constitution protects Americans against unreasonable searches and seizures. The same can no longer be said about the Justice Department.

Attorney General Jeff Sessions issued a directive Wednesday reinstating the controversial practice of adoptive forfeiture, expanding the ability of law enforcement to take possession of assets belonging to suspects even if they havent been or wont be charged with a crime under civil law and later profit from the assets so long as the low bar of probable cause is met.

This is why adoptive forfeiture is a bad deal for Americans, and more than two dozen states restricted the process in recent years. In few places will Sessions change be felt more acutely than Nebraska, a leader in forfeiture reform.

Last year, the Legislature passed a laudable measure that banned permanent asset seizures by law enforcement until a suspect was convicted of a crime and limited when the less-restrictive civil forfeiture process could be used.

Now, its all but moot, as local law enforcement can skirt more restrictive state laws in favor of the far more permissive federal standards.

Although Sessions directive includes modest safeguards against abuse most notably, requiring more detail from law enforcement on probable cause and notifying people of their rights his agency took a net step backward. His document doesnt address the major concerns about the practice of forfeiture:

* The Constitution requires the presumption of innocence until a person is found guilty in court. By requiring those whose assets are seized to sue for their return, the courts are essentially holding those people as guilty until being proved innocent.

* Equitable sharing, which was suspended along with adoptive forfeiture at the federal level in 2015, allows law enforcement agencies to keep up to 80 percent of proceeds while sharing at least 20 percent with federal authorities. This federal policy encourages local law enforcement to seize assets and police for profit.

* By allowing law enforcement agencies to circumvent state laws and instead operate under the far less onerous federal guidelines, the Justice Department has overruled the local control Republicans vociferously defend.

This sudden pivot in favor of restoring the adoptive forfeiture runs counter to the platform adopted at last summers Republican National Convention, which accurately notes: When the rights of the innocent can be so easily violated, no ones rights are safe. We call on Congress and state legislatures to enact reforms to protect law-abiding citizens against abusive asset forfeiture tactics.

Seizing the ill-gotten gains of a person tried and convicted in court is wholly defensible for local, state and federal law enforcement agencies. But Sessions directive reopens a dangerous Pandoras box that disregards both the due process rights of Americans and self-rule of state governments.

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Editorial, 7/21: Sessions wrong to reinstate forfeiture practice - Lincoln Journal Star

By Dale Landrith Sr. | Jul 20, 2017

On July 4 we celebrated Independence Day. This holiday represents the concepts enumerated in the Declaration of Independence of basic freedoms. That Declaration emphatically states that, We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

When the Constitution of our country was adopted, these unalienable rights were not specifically included. Freedom-loving people demanded that they be a part of our Constitution. Thus, through a process of amendments, 10 items were added to ensure these freedoms and ratified Dec. 15, 1791. The first 10 amendments to the Constitution became known as the Bill of Rights.

The First Amendment includes provisions that there shall be no dictated national religion and that there shall not be any restrictions on the exercise of religious beliefs. This amendment follows with guaranteeing the right of free speech and a free press. Our country today faces untold instances of expressions of ugly and hurtful speech. We see outlandish examples of and seeming abuses of these freedoms in todays society. Does this mean that we should now pass laws that limit religion or speech? Absolutely not! Any law limiting others who seemingly abuse these freedoms can then be used to limit our right to express our views. There are many times when our inner self would say, shut them up, and then we realize that we would not want to be shut up.

The Fourth Amendment guarantees the right against unreasonable search and seizures. We see obviously guilty criminals set free as a result of authorities violating this freedom, and sometimes become very angry at some not being held accountable for their deeds. Should the restrictions on search and seizure be changed so that the obviously guilty not be set free? Absolutely not! There are already government abuses of this freedom, and they must stop. SWAT team tactics for political purposes have recently been observed in Wisconsin. Such government conduct threatens the freedoms of the Fourth Amendment in a major way.

The Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law. There are evidences of government overreach, such as civil forfeiture laws currently in use that abuse the Fifth Amendment and should be deemed unconstitutional. This amendment guards against actions that characterize a police state. We are protected against a government's going rogue.

Space does not permit a review of all 10 amendments of the Bill of Rights. However, even with a minority of people or government taking advantage of these freedoms and abusing their intent, the general populous is better served by having these protections. This same type of protection is embedded in another amendment.

The Second Amendment provides that, the right of the people to keep and bear Arms, shall not be infringed. In virtually every incident of gun violence, there is a cry to limit firearms, ammunition, and/or their accessories and infringe on this Second Amendment guarantee. When surveyed, the American people do not want the Second Amendment violated. Gun owners and non-gun owners do not want restrictions on their ability to possess firearms.

While there is disagreement on certain restrictions, Americans agree that firearm possession is part of American culture, according to my reading of a survey published in June by the Pew Research Center on its website, pewsocialtrends.org.

The Second Amendment is just as important to American freedom as are the other amendments. There are people who abuse and misuse firearms, and this can have tragic consequences. However, there are people who abuse and misuse the freedoms from the other nine amendments in the Bill of Rights.

Misuse of free speech or the free press can also kill, injure and cause lasting harm. We need to be conscious of protecting all the freedoms that our Constitution guarantees, including the Second Amendment. The freedoms expressed in the Bill of Rights are there to protect Americans, and while there are certainly abuses, they are the basis of who we are as the greatest nation ever to exist.

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The Bill of Rights - Courier-Gazette & Camden Herald (subscription)

Congress must put an end to the Justice Department's flagrant disregard for the Fourth Amendment.

Attorney General Jeff Sessions signed an order this week making it easier for law enforcement officials to seize property from persons who have not even been charged with a crime.

"President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that. We will continue to encourage civil asset forfeiture whenever appropriate in order to hit organized crime in the wallet," Attorney Jeff Sessions said Wednesday.

He added, "With this new policy, the American people can be confident knowing that we are taking action to defund criminals and at the same time protecting the rights of law-abiding people."

CBS News' Paula Reid explains how the newly announced DOJ policy, which marks a reverse of Obama-era restrictions, could help law enforcement officials get around state-level legislation meant to curb civil asset forfeiture:

24 states have passed laws limiting the practice, but local law enforcement can get around those restrictions by giving seized assets to the federal government instead of returning them to their owners. This practice is called "adoption" and it's been used to seize almost $1 billion in assets over the last decade.

It's bad enough that this entire practice is a clear violation of our Fourth Amendment right to be secure in our "persons, houses, papers, and effects, against unreasonable searches and seizures." But reversing previous civil asset forfeiture restrictions so that law enforcement agencies can skirt state laws goes far beyond bad.

If you're a conservative and you believe in personal property rights and the virtue of limited government, there's no defending a policy wherein law enforcement officials can work around local and state ordinances to seize an individual's property based entirely on suspicion.

That's some primo, grade-A garbage alright.

Congress has the power to rein in this Justice Department. Call your representative.

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The new Justice Department directive is garbage. Call your representative. - Washington Examiner

Reidsville police sergeant fired after material in search warrant appeared to be 'reckless, without basis, misleading'

Sergeant Lynwood Hampshire, of the Reidsville Police Department, was terminated July 14. His termination comes after wrong-doing, while executing a search warrant, was documented in a court memorandum opinion and order. Hampshire was also accused of being part of a Fourth Amendment violation.

RPD Major Ronnie Ellison confirmed the news to WXII 12 News Wednesday. Ellison says Hampshire was employed with the department since December 6, 2004, but had been involved with law enforcement for 17 years.

His ending salary was $46,574.96.

Ellison says Hampshire was terminated for violation of department policy and general order: operational duties and responsibilities.

"Members shall establish and maintain sufficient competency to effectively perform their duties and carry out their responsibilities of their position. They shall perform their duties in such a manner as to effectively and efficiently carry out the functions and objectives of the department," said Chief of Police Robert Hassell.

Hampshire was initially placed on administrative leave. That action came after issues were listed in a search warrant involving former Greensboro police officer William White. White faces possession of stolen property charges after police say he was one of four people who stole $44,000 in lawn mowers in March.

Court documents state that on March 5, Hampshire applied for a warrant to search White's property at 7102 Destiny Jo Road in Pleasant Garden, North Carolina. The warrant was issued by a state court judge the same day.

"When asked by the court at the hearing why he waited until March to secure the search warrant from which this case arises, Sgt. Hampshire stated: 'Guilford County didn't want to deal with it. My district attorney (Rockingham County) didn't want it, and eventually, Alamance County took it over. I couldn't find a district attorney that was willing to prosecute it," court documents state.

According to the court memo, the state warrant sought evidence of the following crimes:

"The day following the issuance of the warrant, officers went to White's home to conduct the search. Special Agent Cummings, a 15-year veteran of the SBI, testified he was present at the search and his duties that day were to document the crime scene in photographs, sketches and in words to include in a report later. Cummings was directed to the master bedroom, where Detective Ken Mitchell was already searching. When he walked into the bedroom, Cummings observed several firearms and other items that Mitchell had found in different locations and spread onto the bed. Cummings observed two rifles that contained a collapsible stock, with one of the rifles having a longer barrel than the other. Cummings seized the rifles and suppressors after viewing them. The day after the search, law enforcement checked the national firearms registry and learned that White had not registered the rifle and silencers," court documents state.

White would later challenge the validity of the search warrant, contending:

White also contends that "even if the warrants were valid, seizure of the rifle and suppressors were not authorized because the registration status of these items was not something immediately apparent to law enforcement under the plain-view doctrine," court documents state.

THE SEARCH WARRANT

The Fourth Amendment requires that warrants be based upon probable cause supported by oath and contain a particular description of the place to be search and things to be seized. White contested whether those elements have been satisfied.

STALENESS

White says the affidavit in support of the search warrant failed to provide probable cause because it was based on information that was four to six months old.

White argued that paragraphs one through nine of Hampshire's warrant affidavit involved conduct related to White's alleged acquisition of and sale of the lawn mowers in August and September of 2016; five to six months prior to the warrant being sought. He argues further that paragraphs 10 through 15 of the affidavit contain no dates and fail to demonstrate that there would be evidence present at White's home five to six months after the fact.

Paragraph 16 of Hampshire's affidavit states that based on his training and experience, suspects often keep these types of evidence readily accessibly in residences, vehicles, businesses, or on their person. Further, with respect to the omission of certain relevant dates, the affidavit does contain a number of investigatory steps Hampshire undertook to determine White's involvement with the stolen tractor, albeit without the dates.

"Considering all of the facts and circumstances, specifically the nature of the evidence to be seized in this case, and giving the issuing judge's determination great deference as required, (the) court concludes that White's staleness argument must fail," court documents state.

THE PARTICULARITY REQUIREMENT

The warrant affidavit in paragraphs one to 11, under the heading "Property to be Seized," lists specific items of the property that are to be taken away. White had an issue with the language in paragraph nine of Hampshire's affidavit, which stated: "any and all property belonging to the victims and/or suspects of this [sic] crimes." He contends the broad language makes the warrant an unconstitutional general warrant.

"While the language in paragraph nine appears overly broad, the other ten paragraphs under the section entitled "Property to be Seized" outlines with specificity the types of evidence to be seized and connects the language to the alleged crimes under North Carolina law," court documents state.

The court concluded the warrant does not fail because of lack of particularity.

FRANK'S HEARING REQUEST

White argued the warrant affidavit contains an intentionally false and misleading statement, or a statement made in reckless disregard for the truth.

White said paragraph 14 of the warrant affidavit includes false statements. The court agreed.

Paragraph 14 of the warrant affidavit states, in relevant part:

During the interview, William White made the comment "he was here to talk about the mower he stole[.]" He immediately recanted the "stole" to say "sold."

"Upon review of the video recording introduced at the hearing, the Court concludes that this statement in the warrant was so totally taken out of context that it was intentionally misleading and demonstrates a reckless disregard for truth," court documents state.

The relevant portion of the video of White's interview with Hampshire and Agent Denny demonstrates the following:

Denny: Has [Sgt. Hampshire] explained to you why we're here today?

White: He has told [pause] he told me a lawn mower I stole was stolen. First he told me I stole it. It was stolen. But, uh, he told me it was stolen.

Denny: Okay, alright. Do you remember selling [inaudible]

White: I guess I'll have to explain to you guys I flip stuff. So, you'll have to be...

Denny: [interrupts] Okay.

White: [continues] ...very specific with me. Houses, cars, lawn mowers, you name it. I do it all. So, you have to be extremely specific with me.

Denny: Okay.

The court document stated that not only is the statement in paragraph 14 of Hamphsire's warrant affidavit not a direct quote from White, the recording makes it clear that White was responding to the question that was posed to him by Agent Denny about whether he knew the basis for the interview.

"No reasonable person would conclude that White's statement was anything other than a response to Agent Denny's question," the court document reads.

"Specifically, Hampshire testified: 'I originally told [White] that I needed him to come in to speak to me about the lawn mower that he had stolen and then I said sold,'" court documents state. "Clearly, White was responding not only to Agent Denny's question, but was sharing what Hampshire had said to him in the message the day before."

According to the court memo, the statement made by Hampshire was intended to mislead the judge into believing White had admitted to stealing a tractor and, further, had recanted that admission.

"There is no question that the statement in paragraph 14 would compel a judge to find probable cause under the circumstances of this case. Thus, Hampshire's inclusion of the statement outlined in paragraph 14 was reckless in that it was without basis, was misleading, and further it was material to the state court's finding of probable cause," court documents state.

PLAIN-VIEW DOCTRINE

White's final argument is that the lawfulness of the rifle and silencers was not readily apparent to officers seizing them and the plain-view doctrine should not apply.

The government stands by the seizure of the rifle because the "incriminating character of the short-barreled rifle and modified suppressors was immediately apparent to Cummings."

"Cummings testified that when he entered the master bedroom, he observed the short-barreled rifle and two suppressors lying in a gun case on the bed. The third suppressor was lying open in another gun case, likewise on the bed. Cummings testified that he did not observe Mitchell, who was in the room when he entered, move any of the items from their original location; nor could he tell the court why Mitchell needed to move these items from their original location to the bed," court documents state.

According to the court memo, the government presented no evidence regarding the circumstances involving the search and the subsequent removal of the firearm and suppressors from their original location. The court, therefore, could not evaluate the government's assertion that the items were in plain view when discovered, or whether the original seizure was valid.

"The government presented no argument as to how the rifle and silencers present in White's home would be an immediately apparent violation of the statue prohibiting the possession of unregistered firearms," court documents state.

White's motion to suppress the evidence, the rifle and silencers seized from his home, from trial was granted.

The court document ends with: "The Fourth Amendment of the United States Constitution requires that individuals must be protected, particularly in their homes, from unreasonable searches and seizures. When it appears that law enforcement treats this sacred constitutional right as nothing more than an impediment to making their case, we all lose."

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Reidsville police sergeant fired after material in search warrant appeared to be 'reckless, without basis, misleading' - WXII The Triad

Congress is getting ready to debate reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, set to expire at the end of the year. Liberty-minded voters and lawmakers should support reform of this provision, to insure that the federal government's power is kept in check.

Both the Republican and Democratic parties have abused warrantless surveillance authorities when in power, to sweep up communications of American citizens in a way that violates the Fourth Amendment to the U.S. Constitution.

Section 702 passed in 2008, when Democrats controlled both the House and the Senate. The original bill was supported strongly by former Speaker Nancy Pelosi. With Republicans in control of Congress and the White House, they now have the power to reform the same surveillance overreach they have previously criticized.

The fight has become an internal struggle between the old establishment guard of the Republican Party and newer, more liberty-minded members who are concerned about privacy and government overreach. The future of the Republican Party includes support for privacy and Fourth Amendment rights. Therefore, the leadership in the House, where this bill is expected to start, should be responsive to the members who are leaders of the privacy movement. Rep. Bob Goodlatte, R-Va., has voiced support for Section 702 reform, and hopefully will lead the charge to bring together divergent elements of the Republican Party, to support a common sense compromise on the bill.

The Bush administration engaged in widespread warrantless wiretapping without any congressional authorization. Likewise, the Obama adminisration used Section 702 to engage in similarly unconstitutional practices.

The provision has been used in a way that violates the Constitution and does not enhance national security. A Washington Post analyzed documents released by Edward Snowden and reported on July 5, 2014 that, "Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency" under Section 702. The Washington Post reviewed 160,000 intercepted email and instant messaging conversations and reported on widespread monitoring of Americans' data that should have required a warrant based on probable cause for the government to collect. This massive data collection is a problem unto itself because the government amasses a giant database of information that they keep.

These abuses are evidence enough that Section 702 needs to be reformed or allowed to expire.

Congress must insist on closing the so-called backdoor search loophole. This loophole allows the government to target Americans under Section 702, under the pretense that they are really targeting foreign nationals. The FBI routinely performs these types of searches, even in cases where they lack the evidence necessary even to open a formal investigation.

There are currently no prohibitions on the use of this information in prosecutions against Americans for alleged offenses unrelated to terrorism. That Section 702 can be used to wiretap Americans without a warrant, and in investigations that have nothing to do with terrorism, demonstrates the amount of mission creep that this anti-terrorism provision has permitted.

Another critical reform that should be imposed on the program would be to limit the scope of Section 702 to only allow targets to be foreign powers or agents, and exclude individuals who are not associated with terrorism and may merely be businessmen or journalists. Furthermore, the upstream surveillance program that has been used to search emails and text messaging on a massive scale should be ended.

Real transparency and oversight of FISA programs needs to be part of any compromise, and any retained data needs to be purged on a regular basis. Finally, private citizens need to have a way to challenge unconstitutional surveillance in court if they believe their rights have been violated.

The law has been implemented in a way that violates the Bill of Rights. This should lead constitutional conservatives in the Senate to filibuster any reauthorization that does not include substantial reform.

Brian Darling is former Senior Communications Director and Counsel for Sen. Rand Paul (R-Ky.). He can be followed on Twitter: @BrianHDarling.

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FISA reform is needed, and conservatives should lead the way - Washington Examiner

If you are driving without a valid driver's license can the police, in this case the Los Angeles Police Department, impound your vehicle?

That question is too easy for you smart readers, even for you average readers. How's this: If you can prove you have a valid driver's license, can you get your impounded car back? That's our case of the day, case du jour.

Never lend your car to your brother-in-law

Lamya Brewster loaned her car to Yonnie Percy, her brother-in-law. Brewster later learned she should have asked Percy if he had a valid driver's license. He didn't. Percy was stopped by LAPD officers, who quickly determined his driver's license was suspended. The officers seized the vehicle under California Vehicle Code 14602.6(a)(1).

Brewster filed a class action lawsuit on behalf of all vehicle owners whose vehicles were subjected to the 30-day impoundment, claiming the impound is a warrantless seizure that violates the Fourth Amendment. The federal trial court ruled for the LAPD. Brewster appealed.

Vehicle Code 14602.6

Vehicle Code 14602.6(a)(1) authorizes impounding a vehicle when the driver has a suspended license. Vehicles seized must be held in impound for 30 days, which is to deter unlicensed drivers or drivers with suspended licenses from driving. No problem with that.

Give Me My Car Back

Three days after the impoundment, Brewster documented she was the registered owner of the vehicle and had a valid California driver's license. She offered to pay all towing and storage fees, but the LAPD refused to release the vehicle before the mandatory 30-day holding period had lapsed. That was the legal issue.

Brewster filed a class action lawsuit on behalf of all vehicle owners whose vehicles were subjected to the 30-day impoundment, claiming the impound is a "warrantless seizure that violates the Fourth Amendment." The federal trial court ruled for the LAPD. Brewster appealed.

Fourth Amendment Seizure

The federal Court of Appeals, with an opinion written by the brilliant Judge Alex Kozinski, ruled that because a 30-day impound is a "meaningful interference with an individual's possessory interests in [his] property," the Fourth Amendment is implicated.

The impoundment/seizure is justified under the Fourth Amendment only to the extent that the government's justification holds force. But after Brewster proved she had a valid driver's license, there was no justification to hold her vehicle.

Once Brewster proved she had a valid driver's license, she was entitled to her car. Mandatory 30-day hold unconstitutional. Makes sense to me.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno, Nevada. His practice areas include: development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached atporter@portersimon.comorhttp://www.portersimon.com.

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Law Review: Never lend your car to your brother-in-law - Sierra Sun