Category Archives: Fourth Amendment

PIERRE, SD (KSFY) The American Civil Liberties Union of South Dakota filed a lawsuit Thursday that challenges the use of forced catheterization.

The suit names the South Dakota Department of Social Services, Avera St. Marys Hospital, members of the Pierre Police Department, the Sisseton Police Department, and the South Dakota Highway Patrol.

According to a statement by the ACLU two lawsuits have been filed. One lawsuit was filed on behalf of a three-year-old child who was forcibly catheterized as part of a effort to collect evidence of child abuse or neglect. The second suit is on behalf of five adults who were subject to forcible catheterization as part of criminal investigations.

The ACLU says forcible catheterization is a violation of the Fourth Amendments protection against unreasonable searches and the Due Process Clause of the Fourteenth Amendment.

In the first case, during the investigation into a suspected case of child abuse and on the order and direction of the South Dakota Department of Social Services, the ACLU alleges Avera St. Marys Hospital in Pierre forcibly catheterized a three-year-old boy. The South Dakota Department of Social Services obtained involuntary and coerced consent from the childs mother, who was being investigated after her boyfriend was arrested for a probation violation, under the threat of the removal of her children. The complaint filed on her behalf and on behalf of her child challenges the practice of catheterizing children who are suspected of being victims of child abuse in violation of their rights under the Fourth Amendment, the Fifth Amendment, and the Due Process Clause of the Fourteenth Amendment. The child was emotionally traumatized and suffered a staph infection as a result of the catheterization.

Forcible catheterization is painful, physically and emotionally damaging, and deeply degrading, said Heather Smith, ACLU of South Dakota Executive Director. Catheterization isnt the best way to obtain evidence, but it is absolutely the most humiliating. The authorities ordered the catheterization of our clients to satisfy their own sadistic and authoritarian desires to punish. Subjecting anyone to forcible catheterization, especially a toddler, to collect evidence when there are less intrusive means available, is unconscionable.

In the other case, the ACLU alleges adult plaintiffs were forcibly catheterized by the police after they forced the police to seek warrants for the collection of bodily fluids. The ACLU says none of the search warrants obtained by police specifically authorized forced catheterization as a means of obtaining evidence. The complaint argues that forcible catheterization is a practice that runs afoul of the Fourth Amendment, the Fifth Amendment, and the Due Process Clause of the Fourteenth Amendment.

The Fourth Amendment guarantees people the right to be free from unreasonable government searches, said Courtney Bowie, ACLU of South Dakota Legal Director. There is nothing reasonable about forcibly catheterizing a child. The Constitutions purpose is to protect people from government intrusions exactly like this.

The ACLU of South Dakota says it wrote the Department of Social Services in April to demand they stop catheterizing children and provide an explanation as to the details of the search on the child and why it was permitted. The lawsuit, filed in the United States District Court in South Dakota, seeks a declaration of the unconstitutionality of the practice and monetary compensation for the individuals in the amount to be determined by a jury.

KSFY News is contacting the parties named in the suit and will update this story as necessary.

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ACLU files suit over force catheterization process - KSFY

ANALYSIS/OPINION:

This week, constitutional law experts and the law enforcement community were abuzz after the U.S. Supreme Court added Carpenter v. United States to its docket, a case that could reshape government data collection and the Fourth Amendment in the internet Age. The Fourth Amendment asserts that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. Timothy Carpenter, the petitioner in this case, alleges that his Fourth Amendment rights were violated.

The case comes at a time when domestic surveillance by intelligence agencies is under scrutiny, and smartphone and internet records are playing a greater role in law enforcement investigations. It raises an important legal question about the applicability of old doctrines that give the government immense power in the Information Age.

Carpenter was convicted of taking part in six armed robberies in Michigan and Ohio. The FBIs evidence at trial included information collected from his cellphone carrier without a warrant, including location information that placed him in the vicinity of the robberies. Police almost certainly could have gotten a search warrant for Carpenters phone records. The appeals court upheld his conviction and dismissed his argument because, as most courts hold in these cases, personal information gathered from businesses like phone companies is not a search or seizure and doesnt require a warrant.

Before the creation of the web or smartphones, courts developed whats known as the third party doctrine for Fourth Amendment cases. This doctrine denies that information turned over to a third party like phone call and location information automatically transmitted to a phone company when placing a call is protected by Fourth Amendment. The doctrine derives from Supreme Court decisions from the 1970s about phone and bank records.

Today, technological advancements mean we each turn over tremendous amounts of personal data to third parties simply with routine use of the digital services of our age. New services that transmit data to the internet cloud, like smart homes, voice-activated devices, and Google Docs, offer law enforcement an even bigger treasure trove of personal records that, under the third party doctrine, does not require a warrant to collect.

The mere fact that the Supreme Court agreed to hear the Carpenter case was a small victory for civil liberties groups. The third party doctrine is a blunt instrument that, in our connected world, permits too many low-value fishing expeditions by law enforcement. Cellular phone companies in particular are inundated with law enforcement subpoenas every year for user data, including user location. Verizon, for instance, reported that the government issued more than 120,000 subpoenas to the company in 2016 over 350 per day. Legal teams at Google, Facebook, Amazon and Uber are required to sift through similar government requests for information.

The political right and left have bristled in recent years against intrusive and often secretive government data collection. Conservatives were alarmed when The Wall Street Journal broke news last October that federal agents in Southern California had co-opted state license plate readers and drove around a parking lot to collect information about thousands of gun show attendees. For years, police departments around the country have spent millions acquiring cell site simulators that jam cellular signals and collect data from hundreds of nearby smartphone users. Progressives have alleged that these devices are used to identify people at mass protests.

The third party doctrine denies that such information can ever be unreasonably seized or searched. As the Cato Institute argues in its amicus brief in the Carpenter case, its time for the court to strip away the decades of privacy doctrine that has permitted police data collection to metastasize.

If the court takes up the Fourth Amendment issues, it should scrupulously apply the Fourth Amendments language: Are Carpenters phone records papers or effects? Were they searched or seized? Was the search or seizure unreasonable? Courts ask these questions in other criminal cases, but not when information leaves someones home or device. Justice must be served, but the third party doctrine short-circuits what should be a demanding constitutional analysis that protects us all.

Contracts between individuals and phone and app companies affirm the confidentiality of sensitive information, and courts should allow only reasonable searches of that data. We should not relinquish Fourth Amendment protections the moment a third party is involved especially in an era when devices in our pockets automatically transmit data.

Brent Skorup is a research fellow at the Mercatus Center at George Mason University. Melody Calkins is a Google Policy Fellow with Mercatus.

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A Supreme Court call on the third party doctrine - Washington Times

Early this month, the U.S. Supreme Court addedCarpenter v. United Statesto the roster for consideration in the upcoming October term.Carpenterwill mark the Courts first chance to address an important, as-yet unresolved question in the digital age: Does the Fourth Amendment require a warrant for law enforcement officials to obtain cell site location information, or CSLI, which reveal the location and movements of a cell phone user?

The case will address the tension between the Fourth Amendment and the Stored Communications Act, which Congress enacted as Title II of the Electronic Communications Privacy Act of 1986. The SCA specifies procedures that law enforcement may use to obtain certain records from third-party electronic communication services or remote computing services. But it does not require a warrant. Since its enactment, third-party service providers have routinely cooperated with law enforcement requests to disclosesubject to certain statutory requirementscustomer data. And notably the petitioner here does not attack the constitutionality of the SCA. Rather,Carpenterasks whether companies should require a warrant, supported by particularized findings of probable cause, before disclosing CLSI. This question has caused considerable doubt among service providers, which must balance responding to law enforcement demands for information with the privacy interests of their customers, and which also require a clear roadmap about what the appropriate procedures are.

The uncertainty among service providers responding to requests for customer information under the SCA is exacerbated by the existence of a significant circuit split concerning whether the Fourth Amendment applies to CSLI. There have been no fewer than 18 separate majority, concurring and dissenting opinions across five circuit courts on the issue, and courts have fractured over whether there is any reasonable expectation of privacy in CLSI and other customer data.Carpenterimplicates three different strains of Fourth Amendment jurisprudence: (1) the third party disclosure doctrine, (2) the physical trespass doctrine, and (3) the distinction between content and non-content information. The case will have the Court decide whether these doctrines, which first arose in the pre-digital world, still have continuing vitality today. And it will allow the Court to consider whether the accumulation of data by third-party service providersnow commonplacegives rise to any new privacy interests under the Fourth Amendment.

Background

In connection with the investigation of a series of armed robberies, federal prosecutors moved under the SCA for court orders requiring two cellular service providers to disclose 187 days of phone records, including CSLI, for petitioner Timothy Carpenter. Based on the CSLI, the government charged Carpenter with aiding and abetting robbery. Carpenter moved to suppress the evidence, but the district court rejected Carpenters argument and held that the governments collection was not a Fourth Amendment search. On appeal, the Sixth Circuit affirmed, holding (1) that the records did not disclose the contentof communications and thus were not entitled any Fourth Amendment protection; (2) that the disclosure of the records to third-party cellular providers defeated any reasonable expectation of privacy under the seminal caseKatz v. United States, 389 U.S. 347 (1967); and (3) that the physical trespass doctrinewhich the Supreme Court had revived in its recentRiley v. California, 134 S. Ct. 2473 (2014), andUnited States v. Jones, 565 U.S. 400 (2012), decisionsdid not apply.

Concurring in the outcome on alternative grounds, one member on the panel, Judge Jane Branstetter Stranch, wrote separately to air her concerns about the Fourth Amendment tests that courts have applied in this rapidly changing area of technology, especially in light of the sheer quantity of sensitive information procured without a warrant.

The Old Ways Just Dont Work

Carpenterdemonstrates the difficulty of applying the canonical tests under existing Fourth Amendment jurisprudence to the modern day. For example, there is the third party disclosure doctrine, which grows out ofKatzs reasonable expectation of privacy test. For someone to have a reasonable expectation of privacy in a piece of information, (1) that person must subjectively exhibit an expectation of privacy and (2) that expectation must be objectively reasonable. The core concept is that people have no reasonable expectation of privacy in any information they disclose to third parties, because they already subjectively surrendered any such expectation with the fact of disclosure. Where the doctrine applies, you cannot even get past the first step of theKatzframework, andKatzhas remained black letter law on the books for half a century now. But in the digital age, where persons passively disclose so much information about themselves (and their whereabouts) to third parties at all times, what reasonable expectation of privacy could possibly be left?

Or take the related distinction that the Fourth Amendment marks between content information and non-content information, such as addressing. The idea here is that a person has no reasonable expectation of privacy in non-content information, because that is frequently disclosed, either to third-party service provider or to the public more broadly. Consider, for instance, a package sent through the mail: itscontentsare unknown and thus the sender has a reasonable expectation of privacy in that. But all other information about the packagethe return and target address, the amount of postage on it, its size, shape, and weightis ascertainable by any mail carrier or member of the public that comes into contact with it. And so there is no reasonable expectation of privacy in that kind of information. On balance, CLSI appears closer to what courts have traditionally considered addressing or other non-content information: it does not tell you what a person said or did, it just shows you where a person was.

Finally, there is the trespass theory of the Fourth Amendment, which the Supreme Court resurrected in its recent cases dealing with technology. InJones, the Court held that the unauthorized placement of a GPS tracker on a car for long-term surveillance triggered Fourth Amendment protections. Similarly, inRiley, the Court held that law enforcement needed a warrant to search a mobile phone. But this trespass notion does not appear to have any place inCarpentereither. Police did not track Carpenter, or break into his cell phone; they merely asked for records from a third party who kept them.

None of these doctrines apply cleanly. Still, given the accumulation of information, there is still some visceral notion that the Fourth Amendment should apply here. The only question is how?

How MayCarpenterResolve This Tension?

While the petitioner here did not request a full rejection of the third party disclosure doctrine, the Court may cull back on the third party disclosure doctrine. Chief Justice Robertss majority opinion inRileysuggested that persons still have some reasonable expectation of privacy in sensitive information collected over mobile phones and stored by service providers. Similarly, Justice Sotomayors concurrence inJoneswarned against a strict application of the third party doctrine: I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose, is for that reason alone, disentitled to Fourth Amendment protection. In both cases, the Court signaled that stringent adherence toKatzmay stop making sense as technology evolves. But those cases both side-stepped the issue by instead turning to the doctrine of physical trespass, and that doctrine cannot sensibly apply to the facts ofCarpenter.

It is also possible that the Court might create a new strain of jurisprudence based on the quantity of records requested. Such an approach would likely introduce certain issues of line-drawing, for instance, if a warrant is required for long-term tracking, while the SCA is sufficient for short-term. But, as Justice Samuel Anthony Alitos concurrence inJonesand Judge Stranchs concurrence in theCarpentercase point out, that might be appropriate. After all, in the modern era, it is not the disclosure of individual, isolated data points that seem problematic, but rather the accumulation of that data over time.

Which test will the Court apply? Service providers, and their customers, will have to wait until this October term to find out.

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Oh, The Places You'll Go: Mobile Geolocation Data and the 4th Amendment - Lexology (registration)

When an investigation involves potential fraud, almost any document or record could be related to it. Prosecutors often need to show that transactions that appear to be legal were misleading or deceptive, which might not be apparent on the face of the documents. So the description in the warrant of what the government can seize in a white-collar case is usually quite broad, covering general categories of records and computer files created over a substantial period of time, but cannot be so vague that almost anything could be seized.

The government obtained warrants to search Mr. Weys company, New York Global Group, and his New York City apartment for evidence that he used other companies and investors as part of a plan to manipulate the shares of companies used for mergers with China-based businesses. The warrants listed 12 categories of documents that related to transactions with 220 individuals and companies, including the seizure of computers and other electronic devices that might contain records related to them.

The key to any warrant that covers so much material is to properly identify the specific crimes that were committed so that there is some limitation on what types of records can be seized. It was on this point that Judge Nathan found the warrant in Mr. Weys case had failed.

The primary flaw was that while the affidavit submitted by an F.B.I. agent to a magistrate judge gave a reasonable description of the crimes under investigation, that document was not incorporated in the warrant, or even attached to it, to establish the parameters for the search.

Because there were no apparent limits to what could be seized, the agents executing the warrants seemed to take just about everything they could get their hands on. In particular, Judge Nathan was troubled that agents took personal items with no apparent connection to the investigation, like X-rays of family members, childrens sports schedules, divorce papers, passports and family photographs.

In finding that the search violated the Fourth Amendment, the judge pointed out that failure to reference the suspected crimes would alone be enough to render the warrants insufficiently particularized.

The importance of including the crimes under investigation was highlighted in another recent case, involving the appeal of Ross W. Ulbricht, who once operated under the moniker Dread Pirate Roberts. He was sentenced to life in prison for helping set up and operate Silk Road, an anonymous online marketplace used to sell drugs and broker other illegal services. Crucial evidence came from his laptop, which was searched shortly after his arrest in a public library in San Francisco in 2013.

The warrant allowed agents to open every file to view the first few pages of a document, and search terms could be used to scan the laptops entire memory. In upholding the search, the United States Court of Appeals for the Second Circuit in Manhattan pointed out that files and documents can easily be given misleading or coded names, and words that might be expected to occur in pertinent documents can be encrypted; even very simple codes can defeat a preplanned word search.

While the description of what could be searched on Mr. Ulbrichts laptop was broad, it was permissible under the particularity requirement of the Fourth Amendment because the affidavit outlining the crimes under investigation was incorporated into the warrant, providing the necessary limitations on what could be viewed. Although that meant a very intrusive search that could include many personal documents, the appeals court found that such an invasion of a criminal defendants privacy is inevitable, however, in almost any warranted search.

Why did the government fail to meet this seemingly simple requirement of incorporating the description of the crimes under investigation in the warrant to search Mr. Weys office and apartment? There is no good explanation for that mistake, which led Judge Nathan to conclude that the warrants are in function if not in form general warrants, the death knell for any search.

One way the government could have seized virtually everything from Mr. Weys business and home would have been to offer evidence in the warrant application that his operation was completely fraudulent. Courts recognize that if a company is thoroughly permeated by fraud, such as a boiler-room operation or a bogus prescription drug dispensary, then any records connected to it would constitute evidence.

Although prosecutors made this argument to defend the seizure from Mr. Wey, they could not overcome two hurdles. First, this type of warrant is usually limited to a business rather than a home, at least unless there is substantial evidence that the home was really just an extension of the illegal operation. There was nothing in the warrant application involving Mr. Weys apartment that would indicate its primary use for that purpose, even though his wife assisted his advisory business from there.

Second, Judge Nathan found that the government did not set forth any evidence, explicit or implicit, that the scheme either constituted just the tip of iceberg with respect to fraudulent activity at Mr. Weys operation, or that the claimed fraudulent activity infused the entire business.

Perhaps the ultimate fallback in any case involving a flawed search warrant is the claim that the agents acted in good faith. The exclusionary rule is designed to deter governmental misconduct, and the Supreme Court noted in United States v. Peltier that where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.

That exception does not apply when a warrant is so clearly flawed that no reasonable agent would rely on it. Judge Nathan found that the warrants did not have any meaningful linkage to the suspected criminal conduct and limited only, at the outer boundaries, to some relationship to the owner/occupant of the premises being searched. Therefore, a claim of good faith to salvage the fruits of an otherwise unlawful search could not be supported, so the exclusionary rule required suppression of all the evidence seized.

I expect that the Justice Department will challenge the decision because the suppressed evidence is at the heart of the case against Mr. Wey. Although a defendant cannot appeal a denial of a suppression motion until after a conviction, the Criminal Appeals Act authorizes prosecutors to seek review of a decision granting such a motion so long as the United States attorney certifies that the appeal is not for the purpose of delay and the material would be substantial proof of a fact material in the proceeding.

Judge Nathans decision sends a clear message to agents and prosecutors in white-collar-crime investigations to tread carefully when using a search warrant to gather evidence. Although a treasure trove of materials can be obtained this way, failing to pay attention to the details of properly writing and executing a warrant can have devastating consequences for a case.

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Mishandle a Fraud Search, and All That Fine Evidence Could Be for Nothing - New York Times

Last month, attorneys for former Park County prosecutor Sam Krone filed a motion to suppress bank record evidence they say was obtained on flimsy grounds, violating Krones Fourth Amendment rights.

If the suppression motion succeeds, the States most damaging evidence against Krone may never see the inside of a courtroom. Pinedale District Judge Marvin Tyler, overseeing the case due to Krones previous relationships with much of Park Countys legal community, will rule on the filing at a July 11 hearing.

Since last July, Krone has been fighting three felony and four misdemeanor counts of theft from the Park County Bar Association. The charges stem from 2010 to 2013, when Krone was treasurer of the organization and prosecutors say over $9,600 went missing from the groups bank accounts.

It was another incident in a trying period for Krone. In March 2016, he was fired from his job as Park County deputy prosecutor. In August of that same year, the incumbent lost, by a more than 2-to-1 margin, his primary bid to represent Wyoming House District 24.

In a May 18 filing on the theft case, Krones attorneys argue that Lander District Court Judge Norman Young did not have sufficient evidence to issue the search warrant that revealed many of the Bar Associations financial irregularities.

Young issued the warrant after Park County Bar Association President Andrea Earhart voiced suspicions about Krones management of Bar Association funds. She eventually got a bank ledger showing less than $100 in one of the groups accounts, and she passed that information along to Wyomings Division of Criminal Investigation.

Earhart said Krone had told her the account had $2,000 to $3,000 in it, and that Krone didnt respond to her request for a treasurers report from him.

At the end of April 2016, Judge Young used that information as the basis for a warrant allowing agents for DCI to search multiple accounts managed by the Bar Association. Those records revealed a number of questionable transactions, which Krone has described as reimbursements for Bar Association expenses.

Krones suppression filing argues that Young didnt have enough evidence to justify searching three of the Bar Associations accounts and that evidence should therefore be excluded. The filing also contends Young couldnt prove that Krone held a position of authority with those accounts, and without proving that authority existed, the rationale for searching them couldnt stand up.

The Wyoming Attorney Generals Office, prosecuting the case in place of Park County prosecutors because of Krones previous job, argue otherwise.

Phillip Donoho of the Attorney Generals office contends bank records do not enjoy Fourth Amendment protections. Furthermore, since the accounts belonged to the Bar Association instead of Krone personally, Krone lacks standing to object to their being searched.

Filings also indicate Donoho and his team are seeking to introduce evidence that Krone borrowed money from a number of friends during the period in question. And Krones campaign finance records may also be introduced.

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Motion to suppress evidence filed in Krone theft case - Cody Enterprise

Posted Mon, June 26th, 2017 4:23 pm by Amy Howe

It has been a little over seven years since 15-year-old Sergio Hernandez was shot by Jesus Mesa, a U.S. Border Patrol agent, while Hernandez was standing on the Mexican side of the border. Hernandezs family filed a lawsuit against Mesa, arguing that (among other things) the shooting violated Hernandezs right under the Fourth Amendment to be protected against excessive deadly force. Both Mesa and the U.S. government urged the Supreme Court to uphold the lower courts rulings dismissing the familys lawsuit, but their case survived at least for now. Acknowledging that the facts outlined in the familys lawsuit depict a disturbing incident resulting in a heartbreaking loss of life, the justices sent the case back to the lower court for it to take another look.

The Hernandez family had asked the justices to weigh in on two questions: whether the Fourth Amendments bar on excessive deadly force applies outside the United States and how courts should make that determination; and whether, even if Hernandez was protected by the Fifth Amendments guarantee that his life would not be taken without proper judicial proceedings, Mesa is immune from suit. But the justices asked the two sides to brief another question: whether the Hernandez family can rely on the Supreme Courts 1971 decision in Bivens v. Six Unknown Named Agents, holding that a plaintiff can bring a private federal case for damages against federal officials who allegedly violated his constitutional rights, at all.

View of the courtroom on the last day of opinions (Art Lien)

In an unsigned opinion, the Supreme Court emphasized today that the lower court had not given any consideration to the Bivens question. The justices noted that plaintiffs cannot rely on Bivens when there are special factors counselling hesitation in the absence of affirmative action by Congress. And in another decision last week, the court continued, it indicated that the focus of that inquiry should be whether courts are well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Therefore, the court concluded, the case should go back to the lower court for it to consider what effect that ruling might have on the Bivens question in this case. Doing so, the court indicated, might eliminate any need for the court of appeals to decide whether Hernandez was protected by the Fourth Amendment which, the court seemed to suggest, could be preferable to deciding the sensitive and potentially far reaching Fourth Amendment question.

The court disagreed with the lower courts conclusion that Mesa was entitled to qualified immunity from the familys Fifth Amendment claim. That conclusion, the court explained, rested on the fact that Hernandez was not a U.S. citizen and did not have any connection to the United States. But that fact isnt relevant to whether Mesa can be immune from a lawsuit, the court countered, because Mesa only learned after the shooting that Hernandez was not a U.S. citizen. Here too, the court stressed, the lower court had not addressed whether the familys claim could even proceed under Bivens; it will now consider that question, as well as a series of other arguments about qualified immunity, on remand.

Justice Clarence Thomas wrote separately to indicate that, in his view, the Hernandez family could not rely on Bivens at all. This case, he contended, arises in circumstances that are meaningfully different from those at issue in Bivens and its progeny in particular, conduct that occurs across an international border. He would not have sent the case back to the lower court; instead, he would have put a halt to it altogether.

Justice Stephen Breyer dissented, joined by Justice Ruth Bader Ginsburg. In his view, Hernandez was protected by the Fourth Amendment when he was shot. Even if he was on the Mexican side of the border, Breyer reasoned, his location should not, standing alone, be dispositive. This is particularly true, Breyer continued, when you consider several factors. For example, Mesa who shot Hernandez is a federal law-enforcement officer, and the culvert where Hernandez was shot is in fact a special border-related area run by an international commission to which the United States contributes tens of millions of dollars each year. Moreover, a finding that Hernandez was not protected by the Fourth Amendment would create an anomalous result: Mesa could be held liable for shooting Hernandez if Hernandez was on the U.S. side of the imaginary mathematical borderline running through the culverts middle, but not if Hernandez was just a few feet on the other side of that line, even if everything else about the case, including Mesas behavior, remained the same. When all of these things are considered together, Breyer concluded, there is more than enough reason for treating the entire culvert as having sufficient involvement with, and connection to, the United States to subject the culvert to Fourth Amendment protections. He would therefore decide the Fourth Amendment question in favor of Hernandez and send the case back to the lower court for it to decide the Bivens and qualified immunity questions.

Posted in Hernndez v. Mesa, Analysis, Featured, Merits Cases

Recommended Citation: Amy Howe, Opinion analysis: Court sends cross-border shooting lawsuit back to lower court, SCOTUSblog (Jun. 26, 2017, 4:23 PM), http://www.scotusblog.com/2017/06/opinion-analysis-court-sends-cross-border-shooting-lawsuit-back-lower-court/

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Opinion analysis: Court sends cross-border shooting lawsuit back to lower court - SCOTUSblog (blog)

For weeks, President Trump cried foul, repeating unverified claims that the Obama administration wiretapped Trump Tower to spy on him, accusations that remain unsubstantiated.

But Mr. Trump, with the power of the presidency and executive branch as a whole at his fingertips, has said little of how he intends to approach the authority he now wields over the country's surveillance policies. As developing policing technologies continue to outpace laws restricting their use, and as Mr. Trump and top members of his administration like Attorney General Jeff Sessions take a hard line against illegal immigration, terrorism and crime, experts in constitutional law and civil liberties fear the lack of an accompanying conversation on privacy protections could contribute to the erosion of Fourth Amendment rights.

The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures."

"I think we will see a push from the Trump administration to expand surveillance powers, and that of course could directly implicate Fourth Amendment protections," said Christopher Slobogin, a professor at Vanderbilt University Law School who has studied and written on Fourth Amendment, privacy and surveillance issues for years.

"And they're going to push I think also for greater militarization of the police, which could affect Fourth Amendment issues," Slobogin added.

The American Civil Liberties Union is currently taking the Department of Justice to court to determine when the government notifies people they are under surveillance.

In May 2015, before announcing his bid for the presidency, Mr. Trump said he supported legislation allowing the National Security Agency (NSA) to hold bulk metadata, and later in the year reiterated he would tend to "err on the side of security." On the campaign trail, and after taking office, Mr. Trump has emphasized the importance of bulking up police forces and eradicating terrorism. Sessions fought against reforms of the Foreign Intelligence Surveillance Act (FISA) in 2012, and against limits on the NSA's spying powers.

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"It's not as though this didn't exist before Trump, because it's all in this terrorism -- war on terrorism stuff," said Robert Bloom, a professor at Boston College Law School who focuses on criminal procedure and civil rights law. "We've loosened up on protections of individuals. But now you've really got an abusive executive. A president and attorney general who don't really give two whits about individual protection and about the Fourth Amendment."

The White House and Department of Justice did not respond to requests for comment for this story.

Guaranteeing Fourth Amendment rights has become increasingly complicated in the digital age. One longstanding legal theory dating to the 1970s, known as the Third Party Doctrine, asserts that once a person gives personal information to a third party, for instance, to a cell service provider, he or she loses the expectation of privacy, and the information can be given to other entities without the person's explicit permission -- without violating the Fourth Amendment.

The Obama administration placed some limitations on surveillance technology, but mostly through policy. The Obama administration required the Department of Justice and Department of Homeland Security to obtain warrants for the use of their 400 Stingrays or cell site simulators, devices that mimic cellphone towers, so all phones within a range connect to it instead of their cellphone provider's nearest tower, and the devices collect cellphone data. The IRS also acquired the technology in recent years.

"But that's the kind of thing that Jeff Sessions could do away with with the stroke of a pen," said Alvaro Bedoya, founding executive director for the Center on Privacy and Technology at Georgetown University Law Center.

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Law enforcement uses tracking devices called "stingrays" to locate cellphones. But the technology also picks up personal information from other c...

Law enforcement agencies say Stingray technology helps them catch suspected criminals -- and it does. But privacy advocates fear the technology's ability to collect nearby cellphone owners' data without their permission or knowledge -- and often, without a warrant -- compromises Fourth Amendment rights.

Federal authorities have said the devices they use are not configured to collect the content of communications, but the capabilities of the technology aren't clear. That's partly because federal authorities have shrouded cell site simulators in mystery, sometimes dropping cases against criminal suspects rather than reveal their policing methods and agreements with private cell site simulator companies that swear the government to product secrecy in contracts.

The ability to put the warrant requirement "through the shredder" at any moment is why policy is an insufficient safeguard, said Matthew Feeney, policy analyst at the Cato Institute, a libertarian think tank.

"We're relying heavily on government policy rather than law, and that I think is a problem," Feeney said.

Many states also use automatic license plate readers, technology that can scan hundreds of plates per minute. In the 2008 election cycle, Virginia State Police used automatic license plate readers on attendees' cars at political rallies for Barack Obama and Sarah Palin, the ACLU revealed. Alone, license plates may not amount to much information, but police have the ability to check those plates against other records, and -- over time -- can observe patterns about a driver's habits, the ACLU argued.

Meanwhile, the federal government is quietly ramping up its surveillance approach at airports, using technology that was, "in most cases developed for the battlefield," Bedoya said.

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U.S. Customs and Border Protection began testing facial recognition software -- called Biometric Exit -- at Dulles International Airport outside Washington, D.C., in 2015, and pilot programs are expanding to other large airports. The software -- the concept of which was first required by Bill Clinton-era legislation in 1996 -- is intended to check visa holders entering or leaving the country through facial matching systems. That scan can be checked against a person's passport. As Mr. Trump looks to toughen immigration policies, it's a timely tool.

But Bedoya worries the technology's use won't stop there.

"There aren't many people talking about biometric exit, when it might fundamentally change the way we travel," Bedoya said.

It's unlikely the technology will only be used on foreign nationals, Bedoya said. Many airports mix international and domestic terminals, and it's more practical and realistic to use the technology at the main Transportation Security Administration (TSA) checkpoint, Bedoya said.

"That means you have a flow of both domestic and international travelers," Bedoya said.

Once it's in place, facial recognition software -- like other kinds of policing technology -- can be used to match other federal databases and tell a story.

"We shouldn't forget that all of these tools can be put together," Feeney said.

"Drones can be used to mount a license plate reader," Feeney said. "Body cam footage could be linked to drone footage."

Congress has made some efforts to strengthen privacy in recent months. In February, the House passed the Email Privacy Act, which would require a warrant for any access to stored digital communications. But the Senate has yet to take any action on it, and threats of terrorism may easily quash any momentum on similar legislation, Slobogin said.

"If we have an event like Manchester in the United States -- or Manchester itself -- that might push Congress in the other direction," Slobogin said.

Absent much guidance from Congress in the way of laws, the courts are deciding the future of surveillance as it pertains to the Fourth Amendment, Slobogin said.

"Some of the lower courts have looked at warrants and searches and things of that nature, but the Supreme Court really hasn't weighed in on those kinds of issues," Bloom said.

Slowly, that's changing, as cases work their way up to the highest court in the land.

This year, the Supreme Court will decide United States v. Carpenter, on whether the warrantless seizure and search of historical cell phone records revealing location and movements of a person over the course of months is constitutional.

"That is arguably going to be the most significant Fourth Amendment case in decades," Feeney said.

The Third Party Doctrine theory "needs to be grappled with significantly," and could be reviewed in that case, Bloom said.

The lack of legal protection against an expanding availability of policing technologies may not concern law-abiding citizens, but it should, Feeney said.

"At the moment, we seem to be mostly concerned about radical Islamic terrorism," Feeney said.

"Maybe in 15 years it's progressives, or libertarians, pro-life people or pro-choice people," he added.

This, Feeney said, is the fundamental question people should ask themselves: "Would I be happy with the state of the Fourth Amendment if my enemy is in charge?"

The rest is here:
What is the future of privacy, surveillance and policing technologies ... - CBS News

On August 1, 2016, Lakewood City Council sent a clear message to all renters living in Lakewood by voting for the Rental Housing Safety Program. known as the R.I.P. Essentially the message from Lakewood City Council was, Lakewood renters do not possess enough brain power, energy or courage to manage their own rental housing SAFETY without government interference.

Although most, if not all, city council members do not agree with my viewpoint, I have provided a link above which will take you to the city website where council members share why they support the rental inspection plan.

While we have not heard much lately, it looks like it will not be very long before property owners and renters will have to start living with this new big brother program.

The Fourth Amendment to the U.S. Constitution guarantees that citizens are to be free of unreasonable search and seizure of their persons and papers.

The city councils vote indicates a willingness to violate Fourth Amendment Rights or at least the spirit of the Fourth Amendment Rights in the guise as the council says, moving in the right direction in the name of SAFETY.

For the sake of argument, lets say I am wrong and city council is right. Then why not make the SAFETY program more comprehensive?

I offer the following suggestions to our Lakewood City Council in consideration for making their SAFETY plan more comprehensive which means more renter SAFETY.

With these enhancements to the Rental Inspection Safety Program, I am starting to understand what our city councils drive for SAFETY can mean.

If Lakewood City Council chooses to ignore the Fourth Amendment by simply hiding behind the word SAFETY, our city can accomplish a lot by simply expanding their safety program.

One last observation. Our Lakewood City Councils R.I.P. is a genius move. Think about it. Without the council approved R.I.P. program made possible by hijacking the inspection provision of the Washington State Landlord Tenant Act there could be no R.I.P. The city now plans to bully their way over renter thresholds. The manipulation of the Landlord Tenant law is a bold and creative move.

What would happen if police bullied or forced their way through a renters front door with no probable cause, no reasonable suspicion, no exigent circumstances and no warrant? This would be thought of as an abuse of police power and a violation of the renters Constitutional Rights.

People would be outraged if our uniformed police acted in a Gestapo-like fashion. The ACLU would be all over this kind of police action. The Department of Justice would launch a major investigation. Civil lawsuits would be filed with the City of Lakewood paying out millions of dollars on civil rights claims. There would be protestors marching on city hall.

My compliments to our city council. They have made it possible to accomplish what would ordinarily seem impossible in America and in doing so, will be bringing SAFETY to our renters.

If in the end if the SAFETY enhancements I have suggested are not included in the R.I.P., then SAFETY must not be the real motivation for the R.I.P.. I would ask, What then is city councils true motivation?

For any of you thinking this article contains ridiculous suggestions, I would be quick to admit that I agree with you. But, my suggested SAFETY enhancements are no more ridiculous than Lakewood City Councils R.I.P. plan in terms of eroding renters and property owners right to privacy and security.

It is interesting to note that there are a number of U.S. court cases which explore what happens when law enforcement uses lethal force inside someones home after gaining entrance in violation of the Fourth Amendment. The question is, does the homeowner have the right to defend his right to privacy when a police officer or public official is inside his or her home illegally.

As the City of Lakewood pushes forward with their rental inspection program, I am confident they will work hard to create a smooth running inspection process. I am confident they will find cases to point to where they can say, See, one look at this rental confirms we need R.I.P. On the other hand, I will not be surprised to learn of the city experiencing, no causing, unexpected negative consequences.

There is time. I still hope City Council will be able to escape the fog that has clouded their judgment regarding constitutional rights.

Read more here:
Westside Story The Fog Has Not Lifted - The Suburban Times

SAN FRANCISCO (AP) Law enforcement must provide a valid reason to hold peoples vehicles and cannot automatically impound them for a set period, a federal appeals court said Wednesday.

The unanimous ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals struck down a California law that requires police to hold impounded vehicles for 30 days.

Judge Alex Kozinski, writing for the panel, said the law violates the Fourth Amendment prohibition against unreasonable seizures.

A seizure is justified under the Fourth Amendment only to the extent that the governments justification holds force, he said. Thereafter, the government must cease the seizure or secure a new justification.

The decision revived a lawsuit against Los Angeles by a woman whose car was held by police for 30 days. The Los Angeles City Attorneys Office did not immediately have comment.

Lamya Brewster loaned her vehicle to Yonnie Percy, her brother-in-law, according to the 9th Circuit ruling. Los Angeles police stopped Percy and seized the vehicle when they learned Percy had a suspended drivers license.

The 9th Circuit said there was agreement that the initial seizure did not pose any problems under an exception to the Fourth Amendment that allows police to impound vehicles that jeopardize public safety.

But the court said police provided no new justification to continue holding the vehicle after Brewster showed up with proof of ownership and a valid drivers license three days later.

A lower court had thrown Percys lawsuit out, finding that the 30-day impoundment period was aimed at deterring unlicensed drivers or drivers with suspended licenses from driving and was a lawful penalty.

36.778261 -119.417932

See the rest here:
Appeals Court Strikes Down California's 30-Day Impound Law - FOX40

A legal organization that advocates for constitutional freedom is watching a 4th Amendment case currently being reviewed by the U.S. Supreme Court.

The case is Carpenter v. The United States, which reached the court from the 6th U.S. Court of Appeals.

The case involves a gang of armed robbers who were tracked by authorities after one of the robbers confessed to the crime and gave up his cell phone number and the numbers of his accomplices.Using cell phone data, authorities analyzed the usage history to trace their movements for 127 days, a Washington Post story explained.

Curt Levey of the Committee for Justice says long before cell phones came into being, court rulings would suggest the police can monitor phone movements. That doesn't apply now, he insists.

I think that would be a very bad interpretation when applied to today's technology, says Levey, because the government might as well put a GPS device on your car and the Supreme Court has said the government can't do that without a warrant.

In the Washington Post story, criminal law professor Orin Kerr summarized the two questions presented to the high court:

I gather, then, that the case will consider two distinct questions. First, is the collection of the records a Fourth Amendment search? And second, if it is a search, is it a search that requires a warrant?

The government argues cell phone owners opt in to third-party police access when they sign a contract with the company. Most of the data came from provider MetroPCS while some "roaming" data came from Sprint.

But Levey doesn't agree.

You're really not consenting to anything when you use it, he says, and to say that by using a cell phone you have to give up all your Fourth Amendment rights, it would result in a government too powerful and too intrusive for my taste, and I think the taste of most Americans.

In taking up the case, he adds, the Supreme Court can update old rulings based on modern technology and determine whether police can have access to the information without a warrant or not.

Kerr described the SCOTUS review as a "momentous development" because the future of surveillance law hinges on the coming ruling.

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Original post:
SCOTUS reviews 4th Amendment vs. surveillance case - OneNewsNow