Category Archives: Fourth Amendment

Southern University is refusing to release any information on the investigation into one of its law school professors because those at the university feel as though it would violate the professors privacy. The woman under investigation is Dorothy Jackson, a board member and former attorney for the infamous East Baton Rouge Council on Aging. She teaches law at Southern, concentrating on elder and succession law, and she additionally runs the Elder Law Clinic there. But lets back up a bit.

Remember when Tasha Clark-Amar, who heads East Baton Rouges Council on Aging, weaseled her way into Helen Plummers will? Per her arrangement, she would receive $120,000 over the next 20 years to oversee the 95-year-old Plummers estate. Plummers family was outraged and claimed that Clark-Amar took advantage of her, refusing to pay the trustee fee, and the case became public when Amar sued the family (repeatedly). But who was the one that legally worked Clark-Amar into the will?

Dorothy Jackson she notarized Plummers will at Southerns law clinic. And so, Jackson was placed on administrative leave in April so that the law clinic could be properly investigated. She remains on administrative leave, although the investigation is wrapping up.

Winston DeCuir, an attorney representing the Southern University Board of Supervisors, spoke with The Advocate concerning the investigation. When they asked to see documentation from the investigation, however, DeCuir refused to share anything, essentially claiming that doing so would infringe upon Jacksons Fourth Amendment right to privacy.

Heres the problem with his reasoning: the Fourth Amendment protects American citizens against unreasonable invasions of privacy by law enforcement. It grants us security in our person, property, papers and effects: whats ours. The report from this investigation of a public university and a public employee is not hers to claim, is it? Whats more, the Fourth Amendment disallows unreasonable invasions of privacy, but if theres concern that an illegality has occurred, is it to be considered unreasonable?

The Advocates attorney, Scott Keaty, affirms this:

The public has an acute interest in ensuring that public business is subject to public scrutiny, particularly where, as here, a public employee has been investigated for her conduct in carrying out the functions of her public employer. More specifically, the substance and results of such an investigation must be disclosed in order that the public can be confident in the operations of its government both in how governmental employees have acted and how investigations of such employees have been conducted. There is simply no reasonable expectation of privacy in such situations.

Coincidentally, Jackson is not the only Southern employee whos both associated with the Council on Aging and on administrative leave these days. Brandon Dumas, Southerns vice chancellor for student affairs, resigned from his seat as board chairman because ofa violation of the boards bylaws.

So is protecting Dorothy Jacksons right to privacy the real reason this report hasnt been released? Well leave it up to the reader to decide.

Excerpt from:
The Dorothy Jackson-Southern Law School Performance Review Fiasco - The Hayride

Back in 1986, Congress viewed communications over six months old to be abandoned and therefore subject to reduced protection, a notion that looks quaint today when emails and texts may be held for years.

Another provision of the statute allows investigators to obtain information from the provider about a subscriber to any electronic service, like cellphones, by seeking a court order based on reasonable grounds to believe that the records are relevant to a criminal investigation. This is a lower standard than probable cause, the usual requirement for a search warrant.

It is this lower threshold for getting information that is at issue in Carpenter v. United States, which the Supreme Court will hear in its next term starting in October.

The defendants were convicted of organizing a string of robberies in the Detroit area where they served as lookouts by parking near the stores. The government obtained orders directing wireless carriers to provide cell site location information showing where different numbers linked to the crew conducting the robberies were at the time of the crimes. Armed with data from various cell towers, prosecutors showed at trial that the defendants phones were a half-mile to two miles from the robberies, helping to link them to the actual perpetrators.

The defendants sought to suppress that information, arguing that it constituted a search of their phones so that the reasonable grounds standard in the Stored Communications Act for the order did not meet the probable cause requirement of the Fourth Amendment.

The United States Court of Appeals for the Sixth Circuit in Cincinnati rejected that claim, finding that although the content of personal communications is private, the information necessary to get those communications from point A to point B is not. Therefore, the defendants had no privacy interest in the information held by the carriers about their location and the constitutional probable cause requirement did not apply.

The Carpenter case raises a fundamental question about how far the privacy protection in the Fourth Amendment, which by its terms applies to persons, houses, papers and effects, should reach in protecting data generated by a persons electronic devices. Chief Justice John G. Roberts Jr. wrote in Riley v. California, a 2014 decision, that cellphones are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.

In Riley, the court found that a warrantless search of an arrestees cellphone was unconstitutional, explaining that what distinguishes the device from other items that might be found on a person that the police could look at is their immense storage capacity. But rummaging through the contents of a phone or computer is not necessarily the same as getting site information that is broadcast to the carrier, especially when a person may enable it by using an app like Find My Phone.

In a 2012 case, United States v. Jones, the Supreme Court found that the use of a GPS tracker attached to a car was a search governed by the Fourth Amendment. Justice Sonia Sotomayor explained in a concurring opinion that the privacy interests in a persons specific location required investigators to get a warrant because gathering that information enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

In the Carpenter case, the justices will have to weigh whether cell site data is different from a GPS tracker because learning where a person is within about a one-mile radius may not be a sufficient invasion of privacy to come within the Fourth Amendment. Nor does obtaining the location of a cellphone reveal the content of any communication, only that a call was made, so the protection afforded by the Riley decision may not apply.

Another case involving the Stored Communications Act that may come before the justices concerns the territorial reach of a warrant authorizing investigators to obtain emails held by Microsoft. The United States Court of Appeals for the Second Circuit in Manhattan, in Microsoft v. United States, found that the warrant did not apply to emails stored on a server in Dublin because there was no indication in the statute that Congress intended to authorize a search outside the United States.

The Justice Department filed a petition with the Supreme Court on June 22 asking for a review of that decision, arguing that it was wrong, inconsistent with this courts framework for analysis of extraterritoriality issues, and highly detrimental to criminal law enforcement. Those requests are often granted because the justices rely on the solicitor generals office to identify cases that have significant law enforcement implications.

Another factor in favor of granting review is that the Second Circuits decision has not been followed by federal district courts in Philadelphia, San Francisco, Washington and Wisconsin, which have enforced warrants to produce email records that may have been stored abroad. A note in the Harvard Law Review criticized the decision because it did not acknowledge the un-territorial nature of data.

Microsoft is fighting the effort to apply the Stored Communications Act to electronic records held outside the United States, pointing out in a company blog post that the European Unions new General Data Protection Regulation scheduled to go into effect next year will make it illegal to transfer customer data from Europe to the United States. That could put global technology organizations like Google and Microsoft in the difficult position of balancing demands for greater privacy with efforts to investigate crime that could result in large fines for failure to comply.

Determining how digital information fits under a constitutional protection adopted when there were only persons, homes, papers and effects that could be searched requires the Supreme Court to figure out the scope of privacy expectations in a very different world from the 18th century. The problem is that legal challenges take a piecemeal approach to a statute adopted over 30 years ago, and the courts cannot rewrite provisions that may be hopelessly out of date.

The House of Representatives adopted the Email Privacy Act in February to modernize the protections afforded electronic communications that would require obtaining a search warrant in almost every case. That proposal met resistance in the Senate last year when Attorney General Jeff Sessions, then a senator from Alabama, sought to add a provision allowing law enforcement to skip the warrant requirement in emergency situations.

Whether the legislation can get through the current Senate is an open question, and it is not clear whether President Trump would sign off if the Justice Department opposes the bill. That may mean the Supreme Court will have to establish the broad parameters of digital privacy while Congress tries to deal with the intricacies of a world of electronic communication that continues to evolve rapidly.

Devices connected to the internet, from cellphones to watches to personal training trackers that facilitate our personal habits and communications, are a fact of daily life, and the Supreme Court will have to start drawing clear lines around what types of electronic information are and are not protected by the Fourth Amendment. Simply asserting that there is a right to privacy does not provide much help in determining how far that protection should extend in a digital world.

View post:
Digital Privacy to Come Under Supreme Court's Scrutiny - New York Times

Criminal charges against a well-known drone operator, who documented the Dakota Access Pipeline protests, were dismissed Monday at the request of the prosecutor.

Myron Dewey was accused of stalking unlicensed private pipeline security workers by taking video of them with his drone. A Morton County Sheriff's Office affidavit said Dewey flew over two unnamed people working for Leighton Security and tried to capture their faces and license plates to post online.

He pleaded not guilty to a misdemeanor stalking charge and was scheduled for trial on Wednesday.He said that on Oct. 8, he was trying to capture the pipeline company possibly working illegally.

"I broke all the rules, but I did not break the law," Dewey said in an interview.

Monte Rogneby, attorney for the Private Investigation and Security Board, confirmed there is no Leighton Security company licensed in the state. He said there is no lawsuit pending against them, as there is with TigerSwan.

Morton County Assistant State's Attorney Brian Grosinger wrote in a motion filed Monday that his reason for dropping stalking charge was that the judge ruled to suppress evidence taken from the drone.

Judge Allan Schmalenberger wrote in an order on July 5 that the prosecutors did not provide enough evidence that search and seizure of the unmanned aerial device was legal.

"Although the state asserts reasons in their brief, they submit no competent evidence to support it," he wrote.

Dewey, the filmmaker behind the popular Facebook page, Digital Smoke Signals, wrote in an affidavit that officers stopped his truck on County Road 83 and took the Phantom 4 drone without a warrant or placing him under arrest.

"I did not give consent to any officer permitting them to seize my drone and controller; when I saw that they were seizing my property, I objected repeatedly to their seizing my property without a warrant," Dewey wrote.

Grosinger argued in his brief that officers already suspected Dewey was using the drone to violate the law and that the seizure fell under exceptions to the Fourth Amendment.

"Had they been required to obtain a warrant, the defendant could have destroyed evidence contained within the UAV's memory," the prosecutor wrote.

See the original post:
Charges dismissed against drone operator who documented protests - Bismarck Tribune

Todd Richmond, Associated Press

MADISON, Wis. (AP) A Wisconsin law that requires homeowners to let assessors inside as a condition for challenging their property taxes is unconstitutional as applied to a pair of Racine County property owners, the state Supreme Court ruled Friday.

The court said in a 5-2 decision that such visits amount to unreasonable searches and that assessors need to get warrants if they can't obtain the homeowners' consent.

The ruling involves Vincent Milewski and Morganne MacDonald, who own a home in the Town of Dover in Racine County. According to court documents, they tried to challenge their 2013 property tax assessment in front of a town review board.

The board refused to hear the challenge because Milewski and MacDonald wouldn't let an assessor inside their home. Under state law, people who refuse an assessor's request to view their property can't contest the assessment to local review boards.

Milewski and MacDonald sued. A judge dismissed the lawsuit and a state appellate court upheld his decision. The state Supreme Court reversed that ruling.

Writing for the majority, Justice Dan Kelly said Milewski and MacDonald were faced with a difficult decision: relinquish their constitutional right to be free of unreasonable searches so they could challenge the assessment or exercise their rights and forfeit their ability to contest the assessment.

Kelly said an assessors' visit without consent is a search as defined in the U.S. Constitution's Fourth Amendment, which protects people from unreasonable searches and seizures. The town failed to show how assessing taxes is such a special need that the Fourth Amendment doesn't apply, which means assessors must obtain search warrants to enter without consent, he wrote. Assessors can use other means to gather information about the property, he said. Milewski and MacDonald can challenge the assessment without an interior inspection, he concluded.

He said the law was unconstitutionally applied to Milewski and MacDonald's situation. But he said the law isn't unconstitutional on its face, holding only that it can't be read to require a viewing that violates the Fourth Amendment.

The town's attorney, Jason Gehring, didn't immediately respond to a voicemail seeking comment.

The court's conservative-leaning majority reached the decision. Shirley Abrahamson and Ann Walsh Bradley, the only two liberal-leaning justices, dissented.

Abrahamson wrote in a joint dissent with Bradley that such choices are common in the law and are seen as constitutionally valid. She also complained the majority opinion is overly complex and intricate even though her dissent goes on for 47 pages compared with Kelly's 53 pages and doesn't say what should happen next.

The Wisconsin Institute for Law and Liberty, a conservative law firm that represents Milewski and MacDonald, issued a statement calling the decision "a victory for private property rights."

The Wisconsin Realtors Association, the state Department of Justice and the Institute of Justice, a law firm specializing in constitutional protections, all filed friend-of-the-court briefs urging the Supreme Court to strike down the law.

___

Follow Todd Richmond on Twitter at https://twitter.com/trichmond1

See more here:
Homeowners don't have to let assessors in to challenge tax - The Edwardsville Intelligencer

Douglas F. Brent

By Douglas F. Brent and Victoria Allen, Stoll Keenon Ogden PLLC

Editors Note: Victoria Allen is a 2017 Summer Associate with SKO.

The digital age has ushered in a multitude of location mechanisms on a communication device. Anyone who has paid roaming fees knows their phone connects to more networks than just those designated by their wireless provider.

Cellphones work by establishing a connection with cell towers. Each tower projects unique directional signals, so a cellphone picking up a signal from the north has distinct CSLI, or cell site location information, from a signal broadcast from the same towers southern sector. As they manage their networks, carriers record these connections.

With thousands of new microsites with smaller coverage areas, CSLI rivals GPS as a way to nearly pinpoint a devices location.

CSLI and law enforcement

In thousands of cases each year, law enforcement agencies obtain the CSLI associated with suspects phones under the Stored Communications Act, instead of securing a search warrant based on probable cause. This tower dump can reconstruct a suspects location and movements over time, and is effective in crime solving.

Nearly all federal courts have agreed that getting a tower dump from cellular providers does not require a warrant. As recently as 2015, the U.S. Supreme Court declined to review any of those decisions.

But on June 5, the Court granted a defendants request to review his conviction upheld last year by the Sixth Circuit Court of Appeals in USA v. Timothy Carpenter.

The Court will consider whether the warrantless seizure and search of cellphone records revealing Carpenters location and movements over 127 days violated his Constitutional rights, specifically Fourth Amendment protection from unreasonable searches and seizures.

Carpenter was nabbed by the FBI in a string of armed robberies at Radio Shacks and T-Mobile stores around southeastern Michigan and northwestern Ohio. After receiving a judges order to obtain records from wireless carriers, the FBI determined that Carpenter had been less than two miles from each store when the robberies took place.

A Michigan jury convicted Carpenter and co-defendants, and a district judge sentenced him to multiple 25-year terms. The sentence was affirmed last year and Carpenter filed for Supreme Court review, even though two terms ago the Court declined to review a nearly identical decision from the Eleventh Circuit.

Why answer an unasked question?

We have written previously about why courts have generally held a warrant is not required to access cell site location information. The privacy protection provided by the Fourth Amendment guards individuals against unreasonable searches and seizures by law enforcement. Reasonableness is grounded in whether the person asserting the protection has an actual expectation of privacy that society will recognize.

But the Supreme Court has held that parties lack an expectation of privacy in business records created by third parties, like a telephone company that records the numbers dialed to initiate a call. Courts dont treat the review of most third-party transactional records as a search at all.

The resulting third-party doctrine, though developed in a different technology era, remains in use today. Regarding cellphone network data for geo-location, the records of wireless service providers have not triggered the same level of privacy protection as more direct methods of surveillance, like a hidden tracking device.

To fill the gap between Fourth Amendment protection and no protection at all, Congress created the Stored Communications Act (SCA), which requires that the government present reasonable grounds but not probable cause to obtain records like CSLI. Whether such information is also protected by the Fourth Amendment has become a more difficult question as transactional records become more numerous and more capable of revealing seemingly private information.

Some judges have been uncomfortable applying the third-party doctrine to pervasive collections, like thousands of locations recorded over months at a time. Judges have also questioned whether the doctrine applies to data not voluntarily conveyed by cellphone users. In the earliest cases involving phone networks, the information voluntarily conveyed was the number dialed by a suspect. In contrast, cellphone users dont so directly influence which cell tower their phone connects to.

The Supreme Courts decision to review Carpenters claims related to CSLI validates concern that the Fourth Amendment is being browbeaten into retreat by the swell of information that is conveyed to third parties. The Courts decision to hear Carpenter is an indication that the Supreme Court is ready to reconsider that decades old third-party doctrine in light of todays technology.

And it may be time.

Read more:
Your vanishing location privacy: Why the Supreme Court is giving wireless networks a look - Insider Louisville

Justices with Texas Seventh Court of Appeals in Amarillo denied a 28-year-old womans appeal of her 2013 intoxication manslaughter and intoxication assault convictions stemming from a guilty plea in a Lubbock court.

The justices determined in a June 28 opinion that the Lubbock trial court did not err in denying Jeena Roberts motions to suppress blood alcohol evidence and her statements to police soon after a fatal wreck. They also found that she voluntarily entered her guilty pleas to an October 2010 wreck that killed one woman and seriously injured another.

Roberts attorney, Robert Scardino Jr. of Houston, has up to 30 days to file a brief and a motion with the justices to reconsider their ruling or appeal the decision to the Texas Court of Criminal Appeals.

He said Thursday that he was disappointed with the ruling but no decisions have been made on how to proceed.

Roberts was handed 15- and eight-year prison sentences in November 2013 in exchange for pleading guilty to second-degree felony counts of intoxicated manslaughter and intoxicated assault.

She entered her pleas after 140th District Court Judge Jim Bob Darnell denied her motions to throw out crucial evidence against her, which included blood evidence and incriminating statements she made to police soon after the crash.

In her appeal, Roberts claimed Darnell wrongly denied her July 2012 pre-trial motions to throw out the blood-alcohol analysis that indicated she had a 0.25 blood-alcohol content on Oct. 22, 2010, when she crashed her Chrysler 300 into the back of a Ford Escape in the 400 block of Marsha Sharp Freeway, killing Linda Smaltz, 52, and seriously injuring Karen Wolf, 59, who were passengers in the SUV. Roberts said her blood was taken without a warrant, which violated her Fourth Amendment rights against unlawful searches and seizures.

She said Darnell also erred in denying her request to throw out incriminating statements she made to Lubbock police officer Nicholas Knowlton as she sat handcuffed in the back of his police car because she believed she was already under arrest but was not informed of her Miranda rights.

Lastly, she said her guilty pleas were involuntary because she made them under the belief she would be permitted to appeal only to find out later she could not.

At the time of her arrest, Texas law allowed for mandatory, warrantless blood draws for intoxication offenses. On May 20, 2013, the U.S. Supreme Court found the law unconstitutional.

However, the Seventh Court of Appeals justices said they could not review Roberts challenge on Constitutional grounds because her attorney at the time never challenged it on that basis during the July 2012 hearing. Instead, they said her attorney challenged the blood draw by saying the officer lacked probable cause to arrest her.

Justices also found Roberts was not under arrest when she made her incriminating statements to Knowlton on the night of the crash and,therefore, the statements would have been admissible in court had her case gone to trial. They believe she made her statements were made during an investigative detention.

Texas courts have long held that a suspects placement into the back seat of a police car does not, per se, equate to custody under Miranda, the justices wrote. Likewise, in Texas, handcuffing is not a conclusive indicator of custody for Fifth Amendment purposes, but only a relevant factor in the determination.

Records also show that after she was arrested and read her rights, Roberts waived her rights when she again admitted to the officer that she drank five beers and a shot of rum before driving that day.

Justices determined from court records that, before she entered her guilty pleas, Roberts was properly admonished by Darnell that she could not appeal.

Texas prison records show Roberts is serving her sentences at the Mountain View prison unit in Gatesville. She will be eligible to go before a parole review in 2020.

Read the rest here:
Appellate court denies Jeena Roberts appeal in convictions for fatal Lubbock crash - LubbockOnline.com

Nearly a century before a U.S. President accused his predecessor of ordering a tapp on his private telephone line, and before he tweeted a warning to the head of the F.B.I. that he had better hope that there are no tapes of our conversations, a professional spy, armed with a pack of cigarettes and an earpiece, hid in the basement of the Henry Building, in downtown Seattle, catching crackling bits of words being spoken miles away. Richard Fryant had worked as a wiretapper for the New York Telephone Company, tasked with eavesdropping on his own colleagues, and now took freelance assignments in the Queen City. On this occasion, he was seeking dirt on Seattles corrupt mayorwho was suspected of having ties to Roy Olmstead, a local bootleggerfor a political rival. At the behest of his client, Fryant rigged micro-wires to a certain exchange, ELliott-6785, and began to listen.

They got that load, one man said, breathing heavily.

The hell they didwho? asked another.

The federals.

The men speaking on ELliott-6785 hung up, but the conversation had only just begun.

Criminals and Prohibition officials alike called Olmstead the good bootlegger, a moniker that reflected his singular business philosophy. He never diluted his whiskey with water or corrupted it with poison; he declined to dabble in the seedier offshoots of his profession, such as drugs or prostitution; and he abhorred violence, forbidding members of his organization from carrying weapons (No amount of money is worth a human life, he cautioned). If apprehended, his men were instructed to rely on bribes instead of violence.

Olmstead had a particular respect for policemen, having been a member of the Seattle force for thirteen years, reaching the rank of lieutenant. In 1920, with the onset of Prohibition, the thirty-three-year-old married father of two ventured to the other side of the law, making midnight runs to retrieve imported Canadian liquor from tugboats in the Puget Sound. This practice earned his dismissal from the force and made him a local celebrity. With his old police colleagues on his payroll, he was free to conduct business brazenly and with impunity, often unloading his booze at high noon from trucks marked Fresh Fish. Seattle citizens were thrilled to glimpse Olmstead on the street, wearing a fine suit and carrying a wallet fat with money, always ready with a joke. As one acquaintance noted, It made a man feel important to casually remark, As Roy Olmstead was telling me today.

Olmsteads organization, comprised of an ever-growing staff of attorneys, dispatchers, clerks, skippers, navigators, bottlers, loaders, drivers, deliverymen, collectors, and salesmen, dominated the bootlegging scene in the Pacific Northwest. They relied heavily upon the telephone for day-to-day operations, using it to take orders, communicate updates on deliveries, and warn of impending raids, their words coursing across a web of wires connecting the citys fifty-two thousand devices (approximately one for every six citizens). Olmstead set up his communication headquarters in the Henry Building, just a block from the Federal Building, and established three exchanges: ELliott 6785, 6786, and 6787. One of his men, a former taxi dispatcher, sat during business hours at a roll-top desk, taking and making calls, keeping meticulous records of each transaction. If a serious matter arose, such as an employees arrest, Olmstead himself called a friend on the Seattle police force to have it quashed. At the end of each day, the dispatcher unplugged the three telephones, to stop their ceaseless ringing, and the routine began anew in the morning.

In early 1924, Olmstead was approached by Richard Fryant, the freelance wiretapper who had been hunkered down in the basement of the Henry Building, listening to Olmsteads lines. As the bootlegger would soon learn, Seattles Prohibition Director, William Whitney, had heard of Fryants surveillance and recruited him as a federal agent.

In Olmsteads version of events, Fryant presented him with a heavy stack of paper, explaining that the pages contained verbatim transcripts of conversations that had been conducted on the bootleggers office phone. For ten thousand dollars, Fryant said, the transcripts could be his. A quick perusal of the pages confirmed their authenticity.

A call from a cop to a worker at Olmsteads headquarters:

Down under the Fourth Avenue Bridge is a car with seven gallons of moonshine in it, and I was wondering if it is yours.

No . . . I dont think it is ours because we dont handle moonshine.

A call from Olmstead to the police station:

Hello, Roy, what is on your mind?

One of your fellows picked up one of my boys. . . . I dont give a damn what they do but I want to know before he is booked.

Ill take care of it for you, Roy.

A joking exchange between Olmstead and a dispatcher:

The federals will get you one of these days.

No, those sons of bitches are too slow to catch cold, Olmstead quipped,

Reading the pages, Olmstead maintained his composure. As a former police officer, he said, when hed finished reading, he knew a thing or two about the rules of evidence. Wiretapping was illegal in the state of Washington, so the pile of paper would be useless in a courtroom. Furthermore, Fryant could go straight to hell.

Olmsteads bravado did not prevent him from hiring a telephone repairman to search the Henry Building first thing in the morning. Together, they found and removed three temporary taps (affixed with coil wire rather than soldered)two in the basement and one in the womens restroom. Still unsettled, Olmstead returned the following day and discovered that all three taps were back.

Fryant and Whitneys wife, Clara, a skilled stenographer, continued to monitor ELliott-6785 from an office one floor below. At each days end, Clara gathered up the handwritten notes and typed them with fastidious precision. The pile of paper continued to grow.

For the first time in his bootlegger career, Olmstead started exercising some discretion about his wordsbut only some, because he still trusted that Fryants wiretapping evidence would never withstand legal scrutiny. When managing the arrival of his whiskey boats in Puget Sound, he used a public pay phone to issue instructions and directions. For less sensitive issues, he continued to use his office line, and even had fun at the wiretappers expense, calling Whitney profane names and giving false orders about the timing and location of deliveries. It amused him to imagine the Prohibition chief sitting alone in the freezing rain, grasping his gun and waiting for boats that would never come.

Whitneys patience paid off in October, 1924, when Canadian officials seized one of Olmsteads boats. Three months later, a federal grand jury returned an indictment against Olmstead and ninety co-defendants for conspiracy to violate the National Prohibition Act. The Whispering Wires case, as it came to be called, concluded with a guilty verdict, a fine of eight thousand dollars, and a sentence of four years hard labor. Convinced that his Fourth and Fifth Amendment rights had been violated (the right against unreasonable searches and seizures and against self-incrimination, respectively), Olmstead put his lawyers to work on Olmstead v. The United States. The Circuit Court of Appeals upheld his conviction, maintaining that, because the federal agents wiretapping pursuits did not require them to trespass on Olmsteads property or confiscate physical possessions, there had been no breach of rights.

The Supreme Court heard Olmstead v. The United States in February, 1928, and, in a 54 decision, upheld Olmsteads conviction. Chief Justice William Howard Taft, speaking for the majority, recognized the murky morality of wiretapping. Nevertheless, he argued that the practice served a greater good. A standard which would forbid the reception of evidence if obtained by other than nice ethical conduct by government officials would make society suffer and give criminals greater immunity than has been known heretofore, he wrote. He rejected the heart of Olmsteads case, insisting that the Amendment does not forbid what was done here. There was no searching. There was no seizure. . . . The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside.

The dissenting opinion was penned by Justice Louis Brandeis, for whom the issue of privacy was both ancient and increasingly, inescapably modern. In 1890, while practicing law in Boston, he had co-authored an article published by the Harvard Law Review titled The Right to Privacya manifesto, as Jill Lepore has written in this magazine, that argues for the existence of a legal right to be let alonea right that had never been defined before. Although the telephone was still decades away from being a familiar and necessary aspect of our lives, nearly every line of The Right to Privacy reveals prophetic insight into current concerns about how best to shield our innermost selves. The intensity and complexity of life have rendered necessary some retreat from the world, Brandeis wrote.

The Right to Privacy became a seminal work, and one that clearly influenced Brandeis himself as he considered Olmsteads case. When the Founding Fathers crafted the Constitution, he wrote in his dissent, the right to be left alone was inherent in the notion of pursuing happiness. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be considered a violation of the Fourth Amendment. . . . If the government becomes a lawbreaker, it breeds contempt for the law.

The media, although invested in a world where sensitive information might be easily and readily obtained, largely favored Brandeiss view. The Times declared that the Olmstead decision allowed universal snooping. The New Haven Journal-Courier predicted that every Tom, Dick and Harry would hereafter practice wiretapping without fear of reprisal. The editors of the weekly magazine Outlook were even more blunt, likening the verdict to a new Dred Scott and predicting dire consequences: We must weather the devastating effects of a decision that outrages a peoples sense of a security which they thought they had.

Forty years later, the Supreme Court finally caught up with Justice Brandeis, refining the Olmstead decision in two separate cases. In June, 1967, Berger v. New York considered the appeal of Ralph Berger, a public-relations consultant who had been convicted of conspiracy to bribe the chairman of the New York State Liquor Authority. Under the authority of a New York statute, police wiretapped Bergers phone for two months, and played excerpts of their recordings during the trial. In a 63 decision, the Supreme Court ruled that the New York law was too broad in its sweepspecifically too long, as the two-month surveillance amounted to a series of intrusions, searches, and seizures that violated the defendants Fourth Amendment rights.

Six months later, the Supreme Court directly addressed the legacy of the Olmstead decision, in the case of Charles Katz, a California man convicted of placing illegal gambling wagers across state lines. Without a warrant, F.B.I. agents wiretapped public pay phones along Sunset Boulevard, hiding the device atop the bank of booths and listening in as Katz placed bets in Miami and Boston. The Court of Appeals upheld Katzs conviction, concluding that, since there had been no physical entrance, his privacy had not been compromised. In a 71 ruling, the Supreme Court reversed this decision, arguing that the Fourth Amendment protects people, not places, and that its reach cannot depend on the presence or absence of a physical intrusion into any given space. Citing Justice Brandeiss manifesto, the Court established the protection of a persons general right to privacy (emphasis the Courts) and his right to be let alone.

Olmstead served his four-year sentence. Yet, in a way, he managed to win his case. Victory came in the form of a Presidential pardon, granted by Franklin D. Roosevelt, on Christmas Eve of 1935, which restored all of his rights as a citizen and cancelled the fine. Roosevelt was influenced, in part, by Olmsteads nascent transformation: hed quit drinking, converted to Christian Science, and started teaching the Bible to prisoners, who frequently asked if he was really *that *Roy Olmstead, the good bootlegger, the rum-running king of Puget Sound. His standard replyNo, not any more. The old Olmstead is deadamounted to fewer than a hundred and forty characters, and were the words he wished the whole world to hear.

Read the original post:
The Bootlegger, the Wiretap, and the Beginning of Privacy - The New Yorker

The Supreme Court wrapped up decisions in its current term last week, but legal watchers are already talking about a potential landmark term starting in October.

The Justices ended arguments on June 26 with a significant decision about church-state relations in the Trinity Lutheran case and they issued a surprise per curium opinion about the Trump immigration bans. However, the term lacked the number of high-profile cases seen in recent years.

That doesnt appear to be the case for the Courts next term, which starts in full on the first Monday in October.

Here is a quick look at some noteworthy cases that Justices will consider sometime in the term, which runs from October 2017 through June 2018.

1. The Trump immigration ban cases. Although the Court allowed the temporary bans to go into effect for immigrants from six Muslim-majority nations and refugees without a bone fide relationship to the United States, arguments are scheduled to be heard in Trump v. International Refugee Assistance Project as soon as October. Along with a constitutional issue involving the First Amendment, the Justice will consider if the case is already moot due to an alleged June 14 deadline in the revised executive order issued by the President.

2. Cell-phone data locations. In Carpenter v. United States, the Court will consider if the warrantless seizure and search of historical cell-phone records, which show the location and movements of a cell-phone user over a period of more than four months, is permitted by the Fourth Amendment.

3. New Jersey pro sports betting. In Christie v. National Collegiate Athletic Association, the question at arguments will be if a federal law that limits sports betting in New Jersey violates the 10thAmendments anti-commandeering clause. The Court accepted the case despite appeals from the Trump Justice Department to deny the case.

4. Partisan gerrymandering. In Gill v. Whitford, the Court faces a potential landmark decision on the subject of redrawing political districts to benefit candidates from a political party. The Court will look at Wisconsins appeal of a ruling that struck down a redistricting map created after the 2010 census. The issue to watch: Can the Court devise a formula to reduce or eliminate partisan gerrymandering?

5. The wedding cake case. Another potential significant case is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, where the Justices will decide if Colorado's public accommodations law violated the First Amendment religious rights of a cake maker who declined to make a cake for a same-sex marriage event.

6. Voter registration lists. In Husted v. A. Philip Randolph Institute, the Court will look at an apparent conflict between federal voting statutes and state-based programs to maintain voter registration lists. Ohio's program removes voters from its list of registered voters if they don't respond to a notification after four years and vote again. Critics say federal law prevents states from removing people from voter registration rolls for not voting.

To be sure other cases will be added to the Courts docket, including a batch right before the first session in October. But the current case of merits cases scheduled for the following year will draw a lot of attention, especially with a full court expected to hear arguments.

Scott Bomboy is the editor in chief of the National Constitution Center.

Filed Under: Supreme Court

View original post here:
Anticipation already begins for Court's next term - Constitution Daily (blog)

INDIANAPOLIS -- While wearing gang colors may be suspicious, its not enough to justify a stop by police unless criminal activity is involved, the Indiana Supreme Court said this week.

As a result of the decision, Jordan Jacobs, Indianapolis, had his conviction reversed for Class A misdemeanor possession of a handgun. The state court ruled that a police search leading to Jacobs arrest in 2015 was not allowed under the Fourth Amendment to the Constitution.

On Aug. 31, 2015, there had been numerous reports of gunshots fired on Indianapolis northeast side by youths wearing red clothing, indicating gang membership. The location near 30th Street and Keystone Avenue was known as a high crime area and police placed more attention on patrols.

Two days later during the afternoon, an Indianapolis police officer saw young men who looked like they should be in school at Beckwith Park, according to court records. Some of the teens were wearing red clothing. Jacobs, then 18, had been seen earlier carrying a red T-shirt.

When a park rangers car was in the area, Jacobs and another man walked away. They returned after the car left and Indianapolis Metropolitan Police Department officer Terry Smith, who is a gang detective, called for assistance. Smith ordered Jacobs to stop but he walked away. Another officer assisted in ordering Jacobs to the ground. Although handcuffed, Jacobs was told he was not under arrest but police saw a gun outlined in Jacobs pocket.

In Marion County court, Jacobs attorney objected to admitting the handgun into evidence on the grounds that the officers did not have reasonable suspicion to stop him under the Fourth Amendment. During a bench trial, Jacobs was found guilty and sentenced to one year probation.

In November, the Indiana Court of Appeals was split but found that Jacobs behavior in evading police in a high crime area provided enough suspicion that a crime was afoot.

The Indiana Supreme Court said that the officers belief that Jacobs was truant at 2 p.m. that day was enough for an investigatory stop. But the actual stop occurred after school had let out for the day.

The court also addressed Jacobs clothing. Membership in a gang, by itself, does not provide the basis for prosecution for criminal gang activity, Justice Mark S. Massa wrote. The State must prove that the individual was aware of the gangs criminal purpose.

He continued, Jacobs display of a red garment (which he was never wearing, and did not have at the time police approached), while standing among those clad in red, was thus insufficient to justify an investigatory stop under the Fourth Amendment.

The court said there was nothing to link Jacobs to the earlier gunfire.

Fourth Amendment

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

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Gang membership doesn't color a crime, court says - Greensburg Daily News

Thu., June 29, 2017, 7:29 p.m.

A man pulled from his home and arrested at gunpoint after two Spokane County Sheriffs Deputies went to the wrong address achieved a partial victory this week when a federal judge ruled that the deputies violated his Fourth Amendment seizure rights and used excessive force.

Conner Griffith-Guerrero filed a federal civil lawsuit against Deputy Robert Brooke, Deputy Evan Logan and Spokane County in 2015, two years after the incident at his home on North Five Mile Road. Both sides filed summary judgment requests and this week U.S. District Court Judge Thomas O. Rice ruled that a portion of each request would be granted.

On Dec. 13, 2013, a resident on North Five Mile Road called 911 to report that there was a suspicious car parked at his neighbors house and his neighbor was in Arizona for the winter. He provided the address to the house, but deputies couldnt find the house and instead went to another home. They drew their guns and walked around the house, testing doors and shining their flashlights in windows, according to court documents.

Griffith-Guerrero was in the basement watching television when he saw the flashlights shining in. He said was afraid he was about to be burglarized so he went upstairs and hit the front door to let whoever was outside know that someone was home, the lawsuit said. He went outside to look and saw someone with a gun. He screamed and ran into the house.

Brooke then identified himself and Griffith-Guerrero opened the door and was ordered outside the home and told to kneel in the front yard while he was handcuffed. He said that one of the deputies was pointing a gun at him the whole time, but the deputy testified in a deposition that he was merely holding his gun in the low ready position.

After it was determined that Griffith-Guerrero lived there, Brooke reportedly told him Youre lucky I didnt (expletive) shoot you, the lawsuit said.

According to court documents, Brooke received a shift counseling, described as the lowest level of discipline, for going to the wrong address.

Heather Yakely, the attorney representing Spokane County and the deputies, argued that the deputies had reasonable suspicion to approach the house and detain Griffith-Guerrero. The deputies were checking for signs of a burglary and Yakely argued there was no violation of the Fourth Amendment because deputies never crossed the threshold into the house.

Rice said the deputies did have the right to check the home for signs of a break in, but ruled the deputies committed a warrantless seizure and used excessive force. Searches and seizures inside a home without a warrant are presumptively unreasonable, he wrote. It does not matter that the officers did not actually enter the house to make the arrest.

Ordering plaintiff out of his home is a categorical violation of his Fourth Amendment rights whether it is called a temporary detention or an arrest, it was a seizure.

Rice wrote that he found the defenses arguments that the deputies did not use excessive force unconvincing.

Pointing guns at plaintiff, ordering him out of his home at night and onto his knees in his own front yard to handcuff him was objectively unreasonable under the circumstances, Rice wrote.

Rice did agree with Yakely on another issue. He ordered Spokane County dismissed from the lawsuit because Griffith-Guerrero didnt show that there was a pattern or practice of officers conducting illegal warrantless searches.

Rice ruled that Griffith-Guerreros claims of assault and battery, false arrest and imprisonment and negligence in the lawsuit can be pursued.

Read more from the original source:
Federal judge rules two deputies used excessive force - The Spokesman-Review