Category Archives: Fourth Amendment

The Sixth Circuit Appeals Court is the latest to weigh in on cell site location info. It joins every other circuit that has handled the issue in deciding the gathering of cellphone GPS data by law enforcement is not a search under the Fourth Amendment.

This decision [PDF] isn't too surprising considering the court reached the same conclusion last year in a similar case. The difference between the two is the latest case deals with real-time collection of GPS data, rather than historical GPS records. But that's the only difference. The Appeals Court believes the same holds true for real-time location info, although it cites something other than 1979's Smith v. Maryland in its analysis.

[T]he district court heldand we affirm, holding that the governments detection of Montai Rileys whereabouts in this case, which included tracking Rileys real-time GPS location data for approximately seven hours preceding his arrest, did not amount to a Fourth Amendment search under our precedent in United States v. Skinner, 690 F.3d 772, 781 (6th Cir. 2012). The government used Rileys GPS location data to learn that Riley was hiding out at the Airport Inn in Memphis, Tennesseebut only after inquiring of the front-desk clerk did the government ascertain Rileys specific room number in order to arrest him. The GPS tracking thus provided no greater insight into Rileys whereabouts than what Riley exposed to public view as he traveled along public thoroughfares, id. at 774, to the hotel lobby. Therefore, under Skinner, Riley has no reasonable expectation of privacy against such tracking, and the district court properly denied Rileys motion to suppress evidence found upon Rileys arrest.

While tracking a robbery suspect, law enforcement obtained an order demanding AT&T hand over location data as soon as it was collected.

The court order compelled disclosure of call metadata such as inbound and outbound phone numbers and cell-site location (CSL) data, as well as real-time tracking or pinging of the latitude and longitude coordinates of Rileys phone. Specifically, the order required AT&T to disclose the following, potentially for two months, until August 26, 2015:

16. Precision location of mobile device (GPS Location) such that service provider shall initiate a signal to determine the location of the subjects mobile device on the service providers network or with such other reference points as may be reasonable [sic] available and a [sic] such intervals and times as directed by State Task Force Investigators and Deputy Marshals of the United States Marshal Service.

The court goes on to note that the location records submitted as evidence do not show whether this collection of info was triggered by AT&T or by the cellphone's owner.

No evidence of record indicates whether Rileys phone automatically transmitted its GPS coordinates to AT&T (and if so, whether on a continuous basis or otherwise) or whether AT&T affirmatively sent a signal to Rileys phone to cause it to send AT&T its GPS coordinates.

This should have been a warning flag. It's one thing to collect this info as it comes in. If AT&T is pinging the phone to generate GPS coordinates, AT&T is essentially performing a search on behalf of the government. That should make a difference in this case, as it shifts it from being about a collection of third-party records to an affirmative gathering of records by the government, using AT&T as a third-party stand-in to work around warrant requirements. (Not that case law is settled for GPS tracking, but still)

But it doesn't. The court goes on to say it doesn't matter because the records were gathered by a third party and they all dealt with the movement of an individual in a public area (the motel where he was arrested). That's why the court cites the Skinner decision, rather than relying exclusively on Smith v. Maryland.

In Skinner, we held that location data emitted by a voluntarily procured cell phone could not be subject to a reasonable expectation of privacy, even if the cell-phone user had no reason to expect that the government would compel the service provider to disclose those data. Id. at 779. There, because the defendants movements could have been observed by any member of the public, ibid., we held that it could not possibly be a Fourth Amendment violation for law-enforcement officers to monitor those movements by using cell-phone location data just because such electronic monitoring was more efficient than relying on visual surveillance alone.

But it then goes on to reach a conclusion which seems to contradict the evidence provided.

Using seven hours of GPS location data to determine an individuals location (or a cell phones location), so long as the tracking does not reveal movements within the home (or hotel room), does not cross the sacred threshold of the home, and thus cannot amount to a Fourth Amendment search. After all, the tracking in Knotts revealed the location of the cabin to which the criminal suspects had traveledbut the tracking in Knotts was not a search because it revealed no information about the interior of the cabin itself. Likewise here, the tracking revealed only that Riley had traveled to the Airport Inn, not which room (if any) the phone was in at the time of the tracking.

The lack of location info particularity should have worked against the government's argument. The court even admits in a footnote the government had no idea where exactly the suspect was located -- only a general idea that he was likely in a publicly-accessible building.

When viewed on a map, the majority of these coordinates are scattered within the perimeter of the Airport Inn, but with insufficient precisioneven if the Airport Inn were only one story tallto reveal which room, if any, the phone was in at the time of each ping.

So, it could be argued the government did track the suspect's "movements within a hotel room," which would put this back in Fourth Amendment territory. But the court never attempts to reconcile these contradictory statements and instead continues to use both the motel's accessibility and the coarse location info as an argument against potential Fourth Amendment violations.

That Riley was arrested in a motel is of no moment, for the government learned no more about Rileys whereabouts from tracking his cell-phone GPS data than what Riley exposed to public view by traveling to the motel lobby along public thoroughfares, Skinner, 690 F.3d at 774even if Riley meant to keep his location a secret, one cannot expect privacy in ones public movements.

Certainly the arrest was "no moment," but the tracking that occurred once he was inside the building should have been given more consideration. The fact that law enforcement can obtain real-time location tracking information definitely needs to be examined more closely, especially when there's ample evidence law enforcement has effectively backdated orders like these to cover up use of more intrusive technology like Stingray devices.

See the article here:
Sixth Circuit Appeals Court Latest To Say Real-Time Cellphone Location Tracking Not A Fourth Amendment Issue - Techdirt

In an opinion that seems carefully crafted to achieve unanimity rather than break new ground, the court yesterdayunsurprisingly and unanimously rejected the U.S. Court of Appeals for the 9th Circuits Fourth Amendment provocation rule while leaving the specific facts open for further analysis on remand. Justice Samuel Alito authored a crisp 11-page opinion, without dissent, for an eight-justice court (Justice Neil Gorsuch did not participate) that is rightfully weary of 4-4 tie possibilities. Alitos opinion hewed closely to the excessive force precedent of Graham v. Connor and avoided points that had provoked strong disagreement at oral argument and in the briefs. As a result, the opinion masks more issues than it resolves. All we know, after reading this opinion, is this: When law enforcement uses force that is judged reasonable based on circumstances relevant to that determination, then a different Fourth Amendment violation cannot transform [that] reasonable use of force into an unreasonable seizure.

Sympathetic facts and three distinct Fourth Amendment claims

As detailed in my prior summary, two deputy sheriffs, searching for a felon, entered a shack where they had been told a homeless couple lived, without a search warrant and without knocking or announcing their presence or identity. Angel Mendez and his then-girlfriend were resting inside. When he heard someone entering, Mendez picked up a BB gun to move it in order to stand up. The deputies saw what they reasonably viewed as a weapon pointed in their direction, and immediately opened fire, severely injuring the woman and Mendez (whose lower leg was amputated as a result).

The Mendezes (now married) pursued three distinct Fourth Amendment claims in their federal lawsuit against the deputies and Los Angeles County: the failure to get a search warrant, the failure to knock and announce, and excessive force. No one has disputed that, at the moment of the shooting, the deputies acted reasonably in shooting to protect themselves. But as Alito notes, the district court did not end its excessive force analysis at this point. Instead, the court awarded damages based on why the shooting took place, noting that were it not for the failure to get a warrant and to knock and announce both constitutional violations Mendez would not have been startled or picked up his gun.

In so ruling, the district court applied the 9th Circuits provocation rule, which as described by Alito permits an excessive force claim where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation. On appeal, the 9th Circuit affirmed this application of its doctrine. The appeals court held that entering the residence without a warrant violated clearly established Fourth Amendment law. But the court ruled that the deputies were entitled to qualified immunity for the knock-and-announce violation, because it was not clearly established in this context: Other officers had in fact knocked and announced at the front door of the main house. Still, because the deputies unconstitutional warrantless entry had recklessly provoked the otherwise reasonable shooting, the court of appeals affirmed the damages award.

As an alternative rationale, the appeals court said that basic notions of proximate cause also supported the damages award, regardless of the provocation rule, because it was reasonably foreseeable that the officers would meet an armed homeowner when they barged into the shack unannounced. But, as the Supreme Court noted in remanding on this alternative theory, by relying on the unannounced nature of the entry, the court of appeals appeared to focus on the same knock-and-announce violation for which it had already ruled that the officers should receive immunity.

The court rejects the provocation rule as an unwarranted and illogical expansion of Graham

When law enforcement officers use force to effect a search or seizure, the Fourth Amendment requires reasonableness. A law-enforcement entry, an arrest, and even a shooting (a seizure) are Fourth Amendment events governed by this timeless yet amorphous constitutional standard. Claims of unreasonable force by law enforcement in such circumstances are characterized as excessive force, and can lead to constitutional tort damage awards for violating the Fourth Amendment, unless qualified immunity intervenes to protect the law-enforcement officers from liability.

As the court pointedly noted yesterday, The framework for analyzing excessive force claims is set out in Graham v. Connor. In Graham, Alito emphasized, the court held that the operative question in excessive force cases is whether the totality of circumstances justifies a particular search or seizure, paying careful attention to the facts and circumstances of each particular case.

No one can argue with this account of settled law because, of course, it is so general that it answers no specific questions. The trick how such general legal principles are applied to the specific facts of each case.

It is in this application that the 9th Circuit erred, said the court as it overturned the provocation rule. [T]he objective reasonableness analysis, the court explained, must be conducted separately for each search or seizure. In the courts view, the fundamental flaw of the provocation rule is that it uses a separate and independent constitutional violation to manufacture an excessive force claim where one would not otherwise exist. When viewed from the deputies perspectives at the time they confronted a weapon pointed at them, the shooting in this case was not unreasonable. By asking a court to look back in time to see if there was a different Fourth Amendment violation that is somehow tied to the eventual use of force, the Supreme Court reasoned, the 9th Circuits novel and unsupported rule conflates distinct Fourth Amendment claims.

A key footnote necessary to avoid a 4-4 tie?

If you followed the courts opinion to this point, you might think that the it would conclude by holding that Mendez cannot recover damages in this case. But that is not what the opinion says at all. Instead, a single footnote appears in the opinion, marked with an * rather than a number. One can speculate that this footnote was first suggested by someone other than the opinions author a justice who threatened otherwise to dissent. Even more likely, four justices may have asked for this footnote as a condition for joining, thereby threatening a 4-4 affirmance of the judgment below and continuation of the provocation rule. That was surely an outcome Alito and other justices wanted to avoid. Thus footnote * is the key to this opinion. Here is what it says:

Graham commands that an officers use of force be assessed for reasonableness under the totality of the circumstances. On respondents view, that means taking into account unreasonable police conduct prior to the use of force that foreseeably created the need to use it. We did not grant certiorari on that question . All we hold today is that once a use of force is deemed reasonable under Graham, it may not be found unreasonable by reference to some separate constitutional violation.

Thus and this seems surprising given the tone of the opinion up to this point the court did not rule that the Mendezes cannot recover on the facts of their case. All the court held was that the theory of the provocation rule that one constitutional violation can somehow render a different, separate and distinct, reasonable seizure unconstitutional is rejected. This holding does not mean or at least it does not appear to mean that persons injured by law enforcements use of force cannot recover for injuries proximately caused by a Fourth Amendment violation committed before the moment of a shooting. Indeed, a key phrase from Graham at the moment on which the petitioners had relied, was pointedly not mentioned anywhere in this opinion.

In light of footnote *, yesterdays opinion seems uneventful. As with all good proximate cause tort hypotheticals, the outcome will depend on the facts. This is nothing new, given that the Framers made the word unreasonable the fulcrum of the Fourth Amendment in 1790.

Conclusion

In a concluding paragraph that I imagine was also worked on by more than one justice, the court appeared to endorse the objective Alito also called it a notion that it is important to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts. This seems like a healthy recognition in light of contemporary concerns regarding police shootings. Indeed, said the court, both parties and, it appears, the unanimous court accept the principle that plaintiffs can subject to qualified immunity generally recover damages that are proximately caused by any Fourth Amendment violation. This phrasing may satisfy the justices offended by this particular shooting and favoring recovery by persons like the Mendezes severely injured by law enforcement although they had nothing to do with the event, as Justice Sonia Sotomayor said at oral argument. In deference to those justices, the court remanded the case for the lower courts to revisit the proximate cause question. (In a somewhat unusual move, the court pointed to specific pages of the briefing as a useful starting point for the remand.) Meanwhile, the 9th Circuits general provocation rule is dead, as Alito had suggested it should be two years ago in City and County of San Francisco v. Sheehan and, indeed, years earlier as a judge on the U.S Court of Appeals for the 3rd Circuit.

Thus the court preserved the logic of its precedents, while not endorsing the law-enforcement shooting of two innocent people. It would be encouraging if this opinion set a new standard for the newly reconstituted court: finding ways to rule unanimously while reaching fair results.

Click for vote alignment by ideology.

Posted in County of Los Angeles v. Mendez, Analysis, Featured, Merits Cases

Recommended Citation: Rory Little, Opinion analysis: Finding Fourth Amendment unanimity while allowing Fourth Amendment justice, SCOTUSblog (May. 31, 2017, 11:55 PM), http://www.scotusblog.com/2017/05/opinion-analysis-finding-fourth-amendment-unanimity-allowing-fourth-amendment-justice/

Original post:
Opinion analysis: Finding Fourth Amendment unanimity while allowing Fourth Amendment justice - SCOTUSblog (blog)

The Fourth Amendments barriers to unreasonable searches and seizures dont get the attention the First Amendment does, but theyre at least as important as a guarantee of liberty. And during his White House years Barack Obama vandalized the Fourth Amendment. His glittering words blinded the media to his unprecedented assault on the right to be let alonethe most cherished right among civilized people.

The American Revolution was ignited by British invasions of the right to privacy. James Otis protested British Writs of Assistance that empowered every petty official to rummage through colonial businesses and homes on a hope and a prayer that smuggled goods or other incriminating evidence of wrongdoing might be discovered:

Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

Pitt the Elder, speaking to the British Parliament, captured the heart and soul of what came to be ratified as the Fourth Amendment:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

The Amendment protects reasonable expectations of privacy from government surveillance, and in Olmstead v. United States (1928), Justice Brandeis (dissenting) said that, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. The government cannot invade a persons privacy without documenting a particularized and urgent criminal justice or foreign intelligence need to a neutral and impartial magistrate. The prohibition does not bend even in cases of homicide or international terrorism where its shield might enable serious wrongful conduct to escape detection. Our Constitution is anchored to the high principle that it is better to risk being the victim of injustice than to risk being complicit in it.

That is, until now. President Obamas dragnet collection of internet and phone metadata on every American citizen obliterated the Fourth Amendments privacy fortress. Without getting a court warrant, Obamas National Security Agencys Stellar Wind program indiscriminately collected internet metadata, i.e., the accounts to which Americans sent and from which they received emails. The metadata detailed the internet protocol (IP) addresses used by people inside the United States when sending emails. Julian Sanchez of the CATO Institute explained the magnitude of the invasion of privacy:

The calls you make can reveal a lot, but now that so much of our lives are mediated by the internet, your IP logs are really a real-time map of your brain: what are you reading about, what are you curious about, what personal ad are you responding to (with a dedicated email linked to that specific ad), what online discussions are you participating in, and how often?...Seeing your IP logs and especially feeding them through sophisticated analytic tools is a way of getting inside your head that's in many ways on par with reading your diary.

President Obama also collected metadata on every phone call made by Americans, under a tortured interpretation of section 215 of the USA Patriot Act. Among other things, the telephony metadata included the time, duration, number called, and routing information of every phone communication in the United States. The database would enable the government to create a personal profile of citizen.

United States District Judge Richard Leon found a high probability that the dragnet collection of telephony metadata violated the Fourth Amendment in Klayman v. Obama.

I cannot imagine a more indiscriminate and arbitrary invasion [of privacy] than this systematic and high-tech collection and retention of personal data on virtually every single citizen for the purpose of querying and analyzing it without prior judicial approval. Surely, such a program infringes on that degree of privacy that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware the abridgment of freedom of the people by gradual and silent encroachments by those in power, would be aghast.

President Obamas own Privacy and Civil Liberties Board similarly found Steller Wind unauthorized by section 215 of the USA Patriot Act. It amplified that it could not find a single instance in which the program made a concrete difference in the outcome of a terrorism investigation[and added]we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. The United States Court of Appeals for the Second Circuit also concluded that Stellar Wind was illegal in ACLU v. Clapper.

President Obamas presidency was unprecedented in its scorched earth tactics against the Fourth Amendment. And were only now beginning to find out how he weaponized this information against political enemies.

Start your workday the right way with the news that matters most.

See the rest here:
Obama Vandalized the Fourth Amendment - HuffPost

It must be tough to be a dinosaur pop media editor nowadays. All these Plebians who watch alternative news sites keep clamoring for real information, while youre trying to focus on other things.

Seriously, how can the great unwashed not see that Donald Trumps body language while walking beside a foreign dignitary is much more important than the publication by Wikileaks, Sinclair Broadcast Group, and Circa News that the Foreign Intelligence Surveillance Act (FISA) Court issued a secret ruling on April 26 lambasting the Obama-era National Security Agency for conducting illegal surveillance on Americans?Pop media editors must be flummoxed trying to suss out why folks in this modern era of news gathering keep trying to find out about how the federal government was spying on many of them without even obtaining the usual rubber-stamp warrants that the FISA Court hands out like candy during Trick Or Treat.

In fact, despite the dinosaur media editors stepping around it, this revelation about the FISA Court and the NSA is a major story, and sheds considerable light on just how perfidious the NSA under James Clapper has been --and how, even after the revelations of Edward Snowden about the NSA spying on Americans, the agency continued to do so.

It also serves as an opportunity to remind oneself about the FISA Court itself, and how, despite the leak of this document, the court is, in essence,sanctioned only by a 1978 law, and not by the Fourth Amendment of the US Constitution.

First, the revelation.

As Tim Johnson reports for the Miami Herald, one of the few old guard news sources to give this more than a fleeting mention:

The document, signed by (FISA Court) Judge Rosemary M. Collyer, said the court had learned in a notice filed Oct. 26, 2016, that National Security Agency analysts had been conducting prohibited queries of databases with much greater frequency than had previously been disclosed to the court. It said a judge chastised the NSAs inspector general and Office of Compliance for Operations for an institutional lack of candor for failing to inform the court. It described the matter as a very serious Fourth Amendment issue.

Thats putting it mildly.

Lets underline a few points about this notice." First, it was 99 pages long. Second, it revealed that the NSA was not even bothering to get FISA Warrants when conducting surveillance against Americans.

As nice as it is that the FISA judge sent this notice to the NSA, the only reason we, the people on whom the NSA could be spying, know about it is because it was leaked.

This reveals a great deal about the persistentactions of the NSA under its former leader, James Clapper, a man who, when asked in 2013 Senate testimony whether the NSA was spying on Americans, said, No."

The NSA spying on Americans is contrary to the Fourth Amendment in 2013, andit continued to do so without asking for the so-called FISA Warrants required by the 1978 Foreign Intelligence Surveillance Act. This, all being done by an administration whose Chief Executive claimed it was the most transparent ever.

The FISA revelation is another tiny hint that maybe, just maybe, Mr. Obama was not being truthful.

And lest we forget, this secret message, as damning as it is, comes from a court that is not really a court as the Founders envisioned it.

The FISA Court was created after the Church Hearings in Congress pursued the valid allegations that U.S. government agencies (FBI, CIA, etc) were spying on Americans, especially counter-culture figures like Martin Luther King and anti-war activists during the Vietnam Conflict. Large portions of the American public were justifiably upset about the problem, and, in classic government fashion, the politicians called their show trials, performed their kabuki theatre, and came out of it with the answer: Since the spying was against the law, they decided to write a new law to essentially make it legal while telling people they were fixing the problem.

Thus was born the Foreign Intelligence Surveillance Act, thanks mainly to the ever-trustworthy Sen.Teddy Kennedy of Massachusetts. The Act purported to protect Americans from surveillance by giving the federal government a power it didnt have according to the Constitution:the power to spy on foreigners. And, ifan American was on the other end of the conversation,to spy on that American.

All the U.S. spy agencies had to do was ask for a warrant from the newly created secret court called the FISA Court, and everything would be hunky dory.

The fact that the Fourth Amendment applies to any spying, regardless of whether it is being done to Americans or foreigners, and it requires real warrants, from real judges, public warrants in the common law tradition going back centuries? The fact that each person to be searched and each item sought had to be mentioned in this public warrant? Not part of the deal.

The FISA law essentially rewrote the Fourth Amendment, making it whatever the FISA Court wanted when it came to surveillance.

The fact that a FISA judge sent a classified message to the Executive Branch saying the NSA wasnt complying to the 1978 law is nice to know, but the entire system is unjustified based on the original intent of the people who wrote their rulebook, called the U.S. Constitution.

But it gets worse.

In fact, while the ObamaNSA continued to spy on people -- even justifying the expansion of that spying by seeing names that were merely mentioned in e-mails of people on whom they were spying, and then spying on those people it has been revealed in declassified documents that the James Comey-led FBI illegally shared surveillance data on people with third parties.

All of this is getting little press in the mainstream media, but it does not mean the issues are unimportant or will go away.

It seems the mainstream just wants us to feel good that the Obama administration was so transparent.

Heck, his gang was almost as transparent as your own private communications may have been to them.

Read more here:
Bombshell Doc Reveals Massive Breaches of 4th Amendment By Obama NSA, FBI - MRCTV (blog)

Law Enforcement Should Not Be Able to Bypass the Fourth Amendment to Search Your Devices

Sending your computer to Best Buy for repairs shouldnt require you to surrender your Fourth Amendment rights. But thats apparently whats been happening when customers send their computers to a Geek Squad repair facility in Kentucky.

We think the FBIs use of Best Buy Geek Squad employees to search peoples computers without a warrant threatens to circumvent peoples constitutional rights. Thats why we filed a Freedom of Information Act (FOIA) lawsuit today against the FBI seeking records about the extent to which it directs and trains Best Buy employees to conduct warrantless searches of peoples devices. Read our complaint here [PDF].

EFF has long been concerned about law enforcement using private actors, such as Best Buy employees, to conduct warrantless searches that the Fourth Amendment plainly bars police from doing themselves. The key question is at what point does a private persons search turn into a government search that implicates the Fourth Amendment. As described below, the law on the question is far from clear and needs to catch up with our digital world.

A federal prosecution of a doctor in California revealed that the FBI has been working for several years to cultivate informants in Best Buys national repair facility in Brooks, Kentucky, including reportedly paying eight Geek Squad employees as informants.

According to court records in the prosecution of the doctor, Mark Rettenmaier, the scheme would work as follows: Customers with computer problems would take their devices to the Geek Squad for repair. Once Geek Squad employees had the devices, they would surreptitiously search the unallocated storage space on the devices for evidence of suspected child porn images and then report any hits to the FBI for criminal prosecution.

Court records show that some Geek Squad employees received $500 or $1,000 payments from the FBI.

At no point did the FBI get warrants based on probable cause before Geek Squad informants conducted these searches. Nor are these cases the result of Best Buy employees happening across potential illegal content on a device and alerting authorities.

Rather, the FBI was apparently directing Geek Squad workers to conduct fishing expeditions on peoples devices to find evidence of criminal activity. Prosecutors would later argue, as they did in Rettenmaiers case, that because private Geek Squad personnel conducted the searches, there was no Fourth Amendment violation.

The judge in Rettenmaiers case appeared to agree with prosecutors, ruling earlier this month that because the doctor consented both orally and in writing to the Geek Squads search of his device, their search did not amount to a Fourth Amendment violation. The court, however, threw out other evidence against Rettenmaier after ruling that FBI agents misstated key facts in the application for a warrant to search his home and smartphone.

We disagree with the courts ruling that Rettenmaier consented to a de-facto government search of his devices when he sought Best Buy's help to repair his computer. But the court's ruling demonstrates that law enforcement agents are potentially exploiting legal ambiguity about when private searches become government action that appears intentionally designed to try to avoid the Fourth Amendment.

The FBI's use of Geek Squad employees to do their dirty work of searching people's devices without warrants is in part possible because there is a legal distinction between searches conducted by purely private parties and searches by private parties done on behalf of government agents.

The Fourth Amendment protections for persons, houses, papers, and effects, against unreasonable searches and seizures, only protects against searches conducted by state actors or someone deputized to act on their behalf.

That means if a private actorlike your next door neighborbreaks into your home and finds evidence of a crime, theres nothing keeping the police from using your illegally gotten property or information against you. The neighbor may be liable for trespass, but it wouldn't amount to a Fourth Amendment violation. This is called the private search rule and it applies unless a court determines that the private actors are working for the government when conducting the illegal searches.

The federal appeals court covering California and other western states has ruled that determining whether a party is a state or private actor comes down to two elements: (1) whether government officials knew of and agreed to the intrusive search and (2) whether the party conducting the search intended to assist law enforcement or further her own ends.

Under this rubric, the FBI's Geek Squad informants should plainly qualify as agents of the government. The records disclosed thus far indicate that FBI agents paid Geek Squad informants to conduct these wide-ranging searches of customers' devices, suggesting that officials both knew about the searches and directed the informants to conduct them. The payments Geek Squad informants received also demonstrate that they conducted the searches with the intent to assist the FBI.

Because both factors are present in the FBI's use of Geek Squad informants, we think any court encountering facts similar to Rettenmaier's should rule that the Fourth Amendment applies to the searches conducted at Best Buy facilities. Because the Fourth Amendment generally requires the FBI to obtain warrants before searching devices, the warrantless searches by Geek Squad personnel were the result of an unconstitutional search and thus any evidence obtained as a result of the illegal searches should be thrown out of court.

However, even if the Geek Squad is found to be a state actor, the government may still argue that computer owners waived any reasonable expectation of privacy in their digital files when they consented to Best Buys terms for repairing their devices. The U.S. Supreme Court applies a reasonable person standard when a property owner is aware that they are consenting to a government search.

This proved to be the pivotal argument in Rettenmaier's case, as the government argued in its briefs that computer owners waived their Fourth Amendment rights by signing a written form stating that they are on notice that any product containing child pornography will be turned over to the authorities.

We disagree with the government's flawed argument. While the Best Buy service contract does put customers on notice that it will report child porn to the FBI if it finds it, we don't think it comes close to informing customers that Geek Squad employees are working for the FBI and will search their hard drives far beyond the scope of permission customers gave. As the Rettenmaier motions show, it appears that Best Buy staff searched unallocated storage space where the problems with the computer would not be found.

When a customer turns their devices over to Best Buy or any other repair shop, their consent to searches of their devices should be limited to where the problems with the computer are locate. Thus, customers cannot plausibly consent to expansive searches of their entire devices.

A real world analogy highlights the absurdity of the government's argument. When you go to the doctor for a sore throat, you dont expect the doctor to order an MRI of your entire body.

The FBI's exploitation of the private search doctrine by relying on Geek Squad informants to conduct searches of people's devices is incredibly problematic. As technology advances, the wealth of information that may be stored or accessed from our digital devices implicate profoundly more private spheres of our lives, from protected medical and financial information to personal information about our friends, family, and loves ones.

If courts continue to rule that the Geek Squad informants arenot state actors,thenthey are free to turn over any evidence they find to the government and law enforcement can then reconstruct the private partys search free of any Constitutional taint to then obtain a warrant for the evidence. This subverting of Constitutional protections is made possible by an outdated and problematic legal concept known as the Third Party Doctrine that bars Fourth Amendment protection when a user voluntarily shares information with a third party (here, the Geek Squad), thus defeating any reasonable expectation of privacy in the evidence. This legal theory has been applied to eviscerate individual privacy interests in such private information as bank records shared with your financial institution and cell site location information shared with your cell phone providers and produced to law enforcement without a warrant.

Currently, theres a circuit split on how this search reconstruction may take place. In the Fifth and Seventh Circuits, courts permit law enforcement to search the entire computer without a warrant based on the private partys search. In contrast, the Sixth and Eleventh Circuits restrict government searches only to the files searched by the private party. And in at least one district court in the Northern District of Indiana, the court decided that a private computer repairman had the authority to consent to a government search on behalf of the computer owner by virtue of his possession of the device.

We think that the FBI's use of Geek Squad informants is not an isolated event. Rather, it is a regular investigative tactic law enforcement employ to obtain digital evidence without first getting a warrant as the Fourth Amendment generally requires. EFF continues to look for opportunities to challenge this type of law enforcement behavior. If you have had your digital devices sent to the main Best Buy repair hub in Brooks, Kentucky for repair and it resulted in criminal proceedings against you, contact us at info@eff.org.

More:
Why We're Suing the FBI for Records About Best Buy Geek Squad Informants - EFF

In 2002 the U.S. Court of Appeals for the 9th Circuit said that the lawful use of deadly force by the police may be ruled unlawful if the police themselves "created the need to use force" by acting in an illegal manner. "Where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation," the 9th Circuit held in Billington v. Smith, the officer "may be held liable for his otherwise defensive use of deadly force." Otherwise known as the "provocation doctrine," this legal standard has served as an important check on overreaching law enforcement tactics. Today, by a vote of 8-0, the U.S. Supreme Court rejected the 9th Circuit's reasoning and wiped the provocation doctrine off the books.

At issue today in County of Los Angeles v. Mendez was a 2010 incident in which two deputies from the L.A. County Sheriff's Department entered the residence of Angel Mendez and Jennifer Garcia without a search warrant, spotted Mendez holding a BB gun (which he kept on hand to fend off rats), and shot both Mendez and Garcia multiple times in ostensible self-defense. Mendez's right leg was later amputated below the knee as a result of his injuries. Garcia was shot in the back.

Mendez and Garcia sued, charging the police with illegal search, illegal seizure, and illegal use of force under the Fourth Amendment. In March 2016, Mendez and Garcia prevailed at the 9th Circuit, which rejected the officers' pleas for qualified immunity and instead held that the two detectives were "liable for the shooting as a foreseeable consequence of their unconstitutional entry even though the shooting itself was not unconstitutionally excessive force under the Fourth Amendment." In other words, Mendez and Garcia prevailed under the provocation doctrine.

Writing today for a unanimous Supreme Court, Justice Samuel Alito overturned that 9th Circuit decision, dismantled the provocation doctrine, and ruled in favor of the officers. The provocation doctrine "is incompatible with our excessive force jurisprudence," Justice Alito declared. "The rule's fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist." According to Alito, "there is no need to dress up every Fourth Amendment claim as an excessive force claim."

Of course, if the police had not violated the Constitution to begin with in this case, the police would not have had the opportunity to use any sort of force at all. The indisputable fact is that Angel Mendez would still have the use of his right leg if the detectives had not disobeyed the Fourth Amendment, illegally entered his home, and shot him.

The Supreme Court's opinion in County of Los Angeles v. Mendez is available here.

The rest is here:
Supreme Court Rules 8-0 for Police in Major Fourth Amendment Case - Reason (blog)

ABA Journal's Blawg 100 (2015-2016)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact / The Book http://www.johnwesleyhall.com

2003-17, online since Feb. 24, 2003

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Fourth Amendment cases, citations, and links

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"If it was easy, everybody would be doing it. It isn't, and they don't." Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, "The Who Live at Hyde Park" (Showtime 2015)

"I can't talk about my singing. I'm inside it. How can you describe something you're inside of?" Janis Joplin

"Love work; hate mastery over others; and avoid intimacy with the government." Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." Mapp v. Ohio, 367 U.S. 643, 659 (1961).

"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment." Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property." Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth." Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for meand by that time there was nobody left to speak up." Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men! ---Pep Le Pew

More here:
Law review article: The Effects of Legislation on Fourth ...

During the Obama years, the National Security Agency intentionally and routinely intercepted and reviewed communications of American citizens in violation of the Constitution and of court-ordered guidelines implemented pursuant to federal law.

The unlawful surveillance appears to have been a massive abuse of the governments foreign-intelligence-collection authority, carried out for the purpose of monitoring the communications of Americans in the United States. While aware that it was going on for an extensive period of time, the administration failed to disclose its unlawful surveillance of Americans until late October 2016, when the administration was winding down and the NSA needed to meet a court deadline in order to renew various surveillance authorities under the Foreign Intelligence Surveillance Act (FISA).

The administrations stonewalling about the scope of the violation induced an exasperated Foreign Intelligence Surveillance Court to accuse the NSA of an institutional lack of candor in connection with what the court described as a very serious Fourth Amendment issue. (The court is the federal tribunal created in 1978 by FISA; it is often referred to as a secret court because proceedings before it are classified and ex parte meaning only the Justice Department appears before the court.)

The FISA-court opinion is now public, available here. The unlawful surveillance was first exposed in a report at Circa by John Solomon and Sara Carter, who have also gotten access to internal, classified reports. The story was also covered extensively Wednesday evening by James Rosen and Bret Baier on Fox Newss Special Report.

According to the internal reports reviewed by Solomon and Carter, the illegal surveillance may involve more than 5 percent of NSA searches of databases derived from what is called upstream collection of Internet communications.

As the FISA court explains, upstream collection refers to the interception of communications as they transit the facilities of an Internet backbone carrier. These are the data routes between computer networks. The routes are hosted by government, academic, commercial, and similar high-capacity network centers, and they facilitate the global, international exchange of Internet traffic. Upstream collection from the Internets backbone, which accounts for about 9 percent of the NSAs collection haul (a massive amount of communications), is distinguished from interception of communications from more familiar Internet service providers.

Upstream collection is a vital tool for gathering intelligence against foreign threats to the United States. It is, of course, on foreign intelligence targets non-U.S. persons situated outside the U.S. that the NSA and CIA are supposed to focus. Foreign agents operating inside the U.S. are mainly the purview of the FBI, which conducts surveillance of their communications through warrants from the FISA court individualized warrants based on probable cause that a specific person is acting as an agent of a foreign power.

The NSA conducts vacuum intelligence-collection under a different section of FISA section 702. It is inevitable that these section 702 surveillance authorities will incidentally intercept the communications of Americans inside the United States if those Americans are communicating with the foreign target. This does not raise serious Fourth Amendment concerns; after all, non-targeted Americans are intercepted all the time in traditional criminal wiretaps because they call, or are called by, the target. But FISA surveillance is more controversial than criminal surveillance because the government does not have to show probable cause of a crime and when the targets are foreigners outside the U.S., the government does not have to make any showing; it may target if it has a legitimate foreign-intelligence purpose, which is really not much of a hurdle at all.

So, as noted in coverage of the Obama administrations monitoring of Trump-campaign officials, FISA section 702 provides some privacy protection for Americans: The FISA court orders minimization procedures, which require any incidentally intercepted Americans identity to be masked. That is, the NSA must sanitize the raw data by concealing the identity of the American. Only the masked version of the communication is provided to other U.S. intelligence agencies for purposes of generating reports and analyses. As I have previously explained, however, this system relies on the good faith of government officials in respecting privacy: There are gaping loopholes that permit American identities to be unmasked if, for example, the NSA or some other intelligence official decides doing so is necessary to understand the intelligence value of the communication.

While that kind of incidental collection raises the concerns of privacy advocates, it is a small problem compared to upstream collection, the technology of which poses profound Fourth Amendment challenges.

In a nutshell, it is not possible to capture a single e-mail related to a single target as it transits the backbone routes (or switches) that connect networks. The NSA must instead capture packets of e-mail data which include lots of e-mails beside the targeted e-mail. It sifts through these packets, finds and assembles the components of the email it was looking for, and then discards the rest. (A New York Times report by Charlie Savage earlier this week, in connection with a different FISA issue, provides a good explanation of this process. By contrast, the relevant discussion in the FISA court opinion of multiple communications transactions, or MCTs, is brief and heavily redacted see the opinion at 1516.) Even if the NSA does exactly what it is supposed to do (i.e., sift and discard), this means American communications are being seized and subjected to an inspection however cursory in the absence of any warrant, probable cause, or foreign-intelligence relevance.

Now, couple this problem with the way the NSA targets. The upstream communications it collects end up in databases. When the NSA has a target about whom it seeks intelligence, it runs a search through the databases using what is variously called an identifier, a selection term, or a selector some e-mail address, phone number, or other identifying information related to the target. For years, U.S. intelligence agencies have not just sought any communications to or from this target; they have also sought any communications about this target e.g., when the target merely appears to have been referred to. This means the communications of people, including Americans inside the United States, are far more likely to be accessed and analyzed even though, again, there is no warrant or probable cause, there may be no direct communication with a proper intelligence target, and the Americans communications may be of no foreign-intelligence value.

So, to summarize, we have the communications of Americans inside the United States being incidentally intercepted, stored, sifted through, and in some instances analyzed, even though those Americans are not targets of foreign-intelligence collection. The minimization procedures are supposed to prevent the worst potential abuses, particularly, the pretextual use of foreign-intelligence-collection authority in order to conduct domestic spying. But even when complied with, there is a colorable argument that the minimization procedures do not eliminate the Fourth Amendment problem i.e., they permit seizure and search without adequate cause.

Now we know the minimization procedures have not been complied with. The new scandal involves their flouting.

In 2011, it became clear to the FISA court that the minimization procedures were providing insufficient protection to Americans. Of special concern was the use of identifiers of American citizens as selection terms for database searches. While the activities of these Americans might have made them worthy foreign-intelligence targets, there are other ways to monitor them under FISA. Targeting them for section 702 searches increased the likelihood that wholly domestic communications between Americans would be collected.

Thus, the minimization procedures were ratcheted up. The most significant change, as the FISA court opinion relates, was that the revised procedures categorically prohibited NSA analysts from using U.S.-person identifiers to query the results of upstream Internet collection (emphasis added).

This meant the NSA was not supposed to use an Americans phone number, e-mail address, or other identifier in running searches through its upstream database.

It is this prohibition that the NSA routinely and extensively violated. Evidently, there was widespread use of American identifiers throughout the years after the 2011 revision of the minimization procedures. The violation was so broad that, at the time the Obama administration ended, its scope had still not been determined.

The Trump Justice Department proposed new procedures in late March, which the FISA court has approved. These include the elimination of searches about a target henceforth, searches are limited to communications in which the target is presumptively a participant (i.e., to or from). The new procedures redouble efforts to assure that the database collects only foreign communications (i.e., at least one end of the communication is outside the U.S.).

We should note that section 702 is due to lapse unless reauthorized later this year, so the new rules will obviously be subjected to close scrutiny. A salient question will be whether this new scandal is mainly a case of technology outpacing the capacity to formulate rules that bring its use into constitutional compliance.

Im sure there is a good deal of that going on; that means the system is inadvertently inputting communications that should not be collected and stored. Plainly, though, something more insidious has also gone on. Even if the inputting has been inadvertently flawed, the outputs what is actually accessed from the database and analyzed would be less likely to violate American privacy if the minimization procedures were followed. The rules from 2011 forward were simple: Do not use American identifiers. Yet NSA used them not once or twice because some new technician didnt know better. This violation of law was routine and extensive, known and concealed.

Clearly, this new scandal must be considered in context.

The NSA says it does not share raw upstream collection data with any other intelligence agency. But that data is refined into reports. To the extent the data collected has increased the number of Americans whose activities make it into reports, it has simultaneously increased the opportunities for unmasking American identities. Other reporting indicates that there was a significant uptick in unmasking incidents in the latter years of the Obama administration. More officials were given unmasking authority. At the same time, President Obama loosened restrictions to allow wider access to raw intelligence collection and wider dissemination of intelligence reports.

This geometrically increased the likelihood that classified information would be leaked as did the Obama administrations encouragement to Congress to demand disclosure of intelligence related to the Trump campaign (the purported TrumpRussia connection). And of course, there has been a stunning amount of leaking of classified information to the media.

Enabling of domestic spying, contemptuous disregard of court-ordered minimization procedures (procedures the Obama administration itself proposed, then violated), and unlawful disclosure of classified intelligence to feed a media campaign against political adversaries. Quite the Obama legacy.

Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.

Read more:
Explosive Revelation of Obama Administration Illegal Surveillance of Americans - National Review

Attorney says judge violated Murfreesboro dad's 4th Amendment rights and took kids away. PHOTO: WZTV FOX 17 Nashville

Murfreesboro's Daniel Russell has two kids with his wife Kimberly and three from a previous marriage. Those three kids lived in Wayne county.

Out of the blue one day, he gets a phone call from DCS saying they are taking his kids from his ex-wife and going into state custody. Russell says he was told "if you want them, you have two hours."

I left work and got them, said Russell.

This wasn't easy. His family of four became a family of seven. His 16-year-old daughter was pregnant, and his son has a learning disability.

Nevertheless , Russell never hesitated. He got a bigger apartment and rolled up his sleeves. He and his wife joyfully accepted their new big family.

We keep a tight ship," Russell said. "We keep a calendar on the wall and have dinners planned out for a week. The kids came from a totally different environment, and the DCS workers saw that when they came to my house."

Truth was, Daniel Russell and his wife were loving it and his kids were too.

I got a permanent parenting plan in the mail, and they said they were closing the case, Russell said.

Russell went down to Waynesboro to close the case. Out of the blue, Russell says Juvenile Court Judge James Ross ordered him to take a drug test.

Keep in mind, Russell has no drug history. There is no order anywhere requiring drug screening during the process.

The judge was like 'you ain't gonna take a drug test?' and I said hold stop right there I think I need to consult an attorney, Russell said. "That's not what I said, that's not what is happening."

Russell said he would go to a commercial lab and take a drug test right then and there. The court said not good enough and dismissed the motion the close the case.

Judge Ross then rules there is probable cause that the children are neglected or abused and takes the kids from Daniel.

"All of a sudden, boom, I am under the bus, said Russell.

After that shocking hearing, Russell hired well-known family law attorney Connie Reguli.

Look at this objectively," Reguli said. "He came in and saved the day; took kids who were in a bad situation, got them re-stabilized in his home, in school, his daughter medical care, and he had to change his life with two hours notice, and then he thinks it's over and he goes to court and the next thing you know before the sun sets that day he is turning his kids over to DCS custody."

Daniel says Mikayla, Christopher and Hannah are heartbroken, ripped away from a dad who was showing how much he cared.

Judge Ross gives two kids to Daniel's brother and his daughter to his ex-wife's grandmother. They are not even living in the same county anymore.

Connie Reguli says this is a violation of Fourth Amendment rights, the right against illegal search and seizure without probable cause.

When you have someone walk in and there has never been an allegation , never a positive screen, no referral, no complaint there has never been anything that would even suggest this is a parent who abused drugs, this is a Fourth Amendment violation," Reguli said. "There is no loophole."

This man, who has already spent thousands of dollars to make a real home for his kids, is spending thousands getting them back.

Russell did take that drug test at a private lab, and it was negative. Now five weeks later, he still doesn't even have a court date to get his kids back.

The rest is here:
Attorney says judge violated Murfreesboro dad's 4th Amendment rights and took kids away - WZTV

Ive been silent on the blog for a while Ive been tweeting my way through current events rather than blogging about them but I wanted to flag the publication of my latest article, The Effect of Legislation on Fourth Amendment Protection, 115 Michigan Law Review 1117 (2017). The abstract:

When judges interpret the Fourth Amendment, and privacy legislation regulates the governments conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislatures handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect.

This Article argues that courts should favor interpreting the Fourth Amendment independently of legislation. At first blush, linking the Fourth Amendment to legislation seems like a pragmatic way to harness the experience and skills of the legislature to help implement constitutional values. A closer look reveals a different picture. Investigative legislation offers a surprisingly weak indicator of constitutional values. Linking the Fourth Amendment and statutes raises novel and complex questions of what links to draw and how to draw them. Linkage also threatens to weaken statutory privacy laws by turning the legislative process into a proxy battle for Fourth Amendment protection. Interpreting the Fourth Amendment independently of legislation avoids these problems. Independence limits arbitrary decisionmaking, provides a clear standard, and helps to protect the benefits of legislation.

This issue will come up soon at the Supreme Court if the justices agree to review the still-pending petitions on Fourth Amendment protection for cell-site data. As always, stay tuned.

Read the original here:
Final version of 'The Effect of Legislation on Fourth Amendment Protection' - Washington Post