Category Archives: Fourth Amendment

A few years ago, some Seattle police officers came up with a novel plan to battle DOJ-imposed limits on their use-of-force. Since their union wisely decided to steer clear of this ridiculous legal battle, the officers chose to crowdfund their way into the federal court system.

Armed with a little over $3,000 and some particularly dubious arguments, the protesting cops filed a lawsuit claiming their Second and Fourth Amendment rights were being violated by the DOJ's use-of-force restrictions. It did not go well.

The officers' arguments were unsupported by the Constitution or case law, Chief U.S. District Judge Marsha Pechman said in an opinion issued Monday.

[...]

Plaintiffs can point to no case establishing that the Second Amendment codified a free-standing right to self-defense, as opposed to case law interpreting the textual Second Amendment rights to keep and bear arms in light of their purposes

[...]

Nor did she agree with the officers' insistence that the policy violated a "right of self-defense as embedded in the Fourth Amendment," which protects against unreasonable search and seizures. Pechman said the argument grossly misconstrued Fourth Amendment law.

The lawsuit was dismissed with prejudice by the court. One would think $3,000 only buys a single trip through the federal court system, but apparently appellate-level lawyering is cheaper. The officers immediately appealed the dismissal, and are now finding the Appeals Court isn't any more impressed with the officers' claimed rights violations.

The Ninth Circuit seemed skeptical of Seattle police officers claims that a new use-of-force policy mandated by the Department of Justice violates their Second Amendment rights.

U.S. Circuit Judge N. Randy Smith told the officers attorney he didnt have much of an argument at a three-judge panel appellate hearing on Monday.

The officers continue to claim de-escalation policies violate their Second Amendment rights by somehow robbing them of the ability to defend themselves. Not quite "Obama's coming for my guns," but close. How armed officers are being stripped of the right to bear arms -- including using them in defense (but perhaps less frequently) -- is something their lawyer hasn't been able to explain to any court's satisfaction.

The Fourth Amendment argument is even worse. Even in the plaintiffs' own words, it's spectacularly bad: a "metaphorical seizure" of their "right" to use whatever force they feel is necessary.

As the opposing counsel points out in a stunning display of logic, the place to protest new police policies isn't this courthouse. It's the one that approved the DOJ consent decree.

If the officers had real concerns about the use-of-force policy, they should have brought them before the federal judge overseeing the police reforms rather than asking an appellate panel to create a new fundamental constitutional right, [city attorney Gregory] Narver said.

The 126 Seattle law enforcement officers involved in this lawsuit have achieved the nigh impossible: making a police union look like the saner party in the wake of a DOJ investigation.

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Appeals Court Pretty Sure DOJ Use-Of-Force Guidelines Don't Violate Police Officers' 2nd And 4th Amendment Rights - Techdirt

May 15 John Bean Technologies Corp

* John Bean Technologies- on May 9, co, John Bean Technologies B.V., others entered into fourth amendment to credit agreement dated as of Feb 10, 2015

* John Bean Technologies - credit agreement allows co to temporarily increase maximum allowable leverage ratio under credit agreement from 3.5x to 4.0x

* John Bean Technologies - fourth amendment amends leverage ratio increase option to expand qualifying event, was previously single permitted acquisition having consideration in excess of $100 million Source: (bit.ly/2pBKXSP) Further company coverage:

* SAYS JV WITH INTERNATIONAL SEAWAYS HAS SIGNED CONTRACT FOR 5 YEARS FOR THE FSO AFRICA AND FSO ASIA IN DIRECT CONTINUATION OF THE CURRENT CONTRACTUAL SERVICE

May 17 The following are the top stories on the New York Times business pages. Reuters has not verified these stories and does not vouch for their accuracy.

* Downbeat U.S. housing data offsets strong manufacturing report

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BRIEF-John Bean Technologies enters into fourth amendment to credit agreement dated as of Feb 10, 2015 - Reuters

Special to the Daily Mail

The week four session of the Nevada Police Departments Citizens Police Academy on April 26 featured guest speakers Assistant Prosecuting Attorney Lynn Ewing and Nevadas Animal Control Officer Ben Douglas.

Ewing went over the requirements of our police officers training in criminal procedure and the extent to which they had to comply when making an arrest or obtaining a warrant.

He explained how police officers are like lawyers on the street. Making split second decisions as to what can and cant be done according to criminal law and our Fourth Amendment rights. The Fourth Amendment is the linchpin in making an arrest. He went on to tell us when a warrant is necessary and that they can only be issued by a judge.

We learned that if a report is made by a witness or citizen and too much time passes before a warrant is requested that it is not usable information anymore because many things may have changed since the report was made. So time is of the essence in reporting a crime.

Ewing explained probable cause and the degree of probability.

We were told where and when an officer is allowed by law to search or seize a person or property.

He explained that a stop and frisk is not an arrest, but can escalate into one.

Ewing told us how inspections and regulatory searches could result in evidence being passed on to police for a warrant. If the inspector or person supervising a group of children or persons sees something suspicious or harmful to the group that they can be considered mandatory reporters.

He talked about consent searches and what is allowed in this type of search.

We learned about wiretaps and the exclusionary rule of the Fourth Amendment. This takes a warrant by a federal judge.

He covered the interrogation and confession, when it is allowed and the privilege against self-incrimination as well as a waiver of rights.

We were told the difference between a person working for the police or someone volunteering information in a specific incident, referred to as Color of Law.

He went over the Miranda rights and when it is necessary. First, a person has to be in custody and second, is being questioned by the police. Voluntary information is admissible without the Miranda being read.

City, county, state, and federal officers are all governed by the same Constitutional rights and laws.

We all have a right to due process of the law.

The second speaker was Ben Douglas, the animal control officer for the city of Nevada. He has been Nevadas Animal Control Officer for nine years.

You should know that he doesnt like being called the Dog Catcher.

Officer Douglas qualifications and training are extensive. Animal control association, Certified Humane Investigator/ACO, member of the National Animal Control Association, chemical immobilization certified, collapsible baton certified, euthanasia certified, Taser qualified, OC (pepper spray) certified. He is a member of Missouri Animal ASPCA training in blood sports investigation and cruelty investigation.

The position of Animal Control Officer is a division of the police department. He has a variety of duties:

Handling all animal calls .

Pick up large animals.

Trap nuisance animals.

Issue citations.

Assist vets in euthanizing animals.

Ensure compliance state and federal.

Provide mutual aid to county if requested.

Supervise city animal shelter and employees.

Adoptions.

Reclaims.

Surrenders.

Administer and en-force chapter five of the city code.

License, stray, livestock in town, animal noise.

In addition to his regular duties, Douglas procures supplies for and maintains the animal shelter and oversees the employees and the budget.

The animal shelter is considered a kill shelter. After 15 days it is OK to euthanize an animal. But here they try to keep them healthy if they can and pass them on either to homes or facilities that can care for them.

In the state of Missouri, animals are considered property, therefore, it is difficult to do more than fine offenders. There is a leash law in Nevada and owners are responsible for the animals actions when not on a leash.

Every animal bite (which breaks the skin) has to be reported to the state.

The biggest problems they deal with are neglect, abandonment, and abuse. The second is puppy mills. We found out that you only have to be licensed if there are three breedable females and you are breeding them and selling the babies.

Four hundred forty two animals were brought into the shelter in 2016. The live release rate for that same year was 84 percent.

All animals over six months old are spayed or neutered, treated and given shots and exercise.

In 2016 there were, 945 calls for service, 25 of which were for animal bites.

So far in 2017 there are only 14 bites.

If you are interested in finding out about the animals at the shelter, you can go by and visit or you can go to http://www.petfinder.com or Facebook.

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Citizens Police Academy, week four - Nevada Herald

In this excerpt from our new Digital Privacy initiative, Jim Harper from the Competitive Enterprise Institute critiques current Fourth Amendment doctrine and calls on courts to adopt a new approach that hews closely to the Fourth Amendments text.

You can read the full text of Harpers white paper at our special section, A Twenty-First Century Framework for Digital Privacy, at https://constitutioncenter.org/digital-privacy

Stare decisis is the valued judicial practice of extracting the underlying principle from precedent, the ratio decidendi, and applying it to present cases. But what happens to the principle behind a prescient dissentthe ratio dissensi, if you willwhen a majoritys decision later proves wrong? Almost ninety years ago, an understated Supreme Court Justice left crumbs of insight in a dissent that may help solve the riddle of applying the Fourth Amendment, particularly to modern communications and data. His thinking can help construct a more complete, reliable, and truly juridical method for administering the Fourth Amendment. Advocates and courts should look to his prescient ratio dissensi.

Pity Justice Butler. Next to contemporaries such as Oliver Wendell Holmes, Jr., Louis D. Brandeis, and Benjamin Cardozo, Pierce Butler occupies second-tier status in historys assessment of Supreme Court justices. A conservative Democrat put forward by a Republican president, Butler was a controversial nominee for the Court. One of his Minnesota home-state senators opposed him, as did progressive lion Robert LaFollette, Sr., a Republican from Wisconsin. The opposite end of the ideological spectrum did Butler no favors: the Ku Klux Klan opposed his nomination because he was a Catholic.

Justice Butler wrote more than 300 opinions in his sixteen years of Supreme Court service, but few stand out today. He is best remembered as one of the four horsemen who lost their constitutional stand against President Franklin Delano Roosevelts expansive New Deal programs. But time has vindicated some of Justice Butlers work on the Court, including notable dissents.

Butler alone rejected Oliver Wendell Holmes, Jr.s now notorious reasoning in Buck v. Bell, for example. Allowing forced sterilization of a woman, Holmes wrote coldly for the majority: Three generations of imbeciles are enough. The Nazis use of eugenics the next decade cast more than a little pall over the practice, and Skinner v. Oklahoma effectively ended forced sterilization in 1942. Score one for the conscience of Justice Butler.

Likewise, in Palko v. Connecticut, Butler alone disagreed with Justice Cardozos ruling that the Constitutions protection against double jeopardy did not apply to the states. The Court reversed itself on this question three decades later. Score another.

Butler was a legal technician, and his areas of focus were not what generally capture public and scholarly attention. His approach to opinion writing stressed simplicity and minimalism, according to a history by David R. Stras, now a Minnesota Supreme Court justice himself, and it was rare indeed when he used rhetorical flourishes to argue a point. So it is not surprising that Justice Butlers dissent in Olmstead v. United States has remained obscure behind the fanfare of his brother Louis Brandeiss dissent. But time may yet vindicate Justice Butlers reasoning, especially given its usefulness for applying the Fourth Amendment to the digital world.

Olmstead, of course, was the 1928 case in which the Court found that a Fourth Amendment search had not occurred when government agents wiretapped the telephones of suspected bootleggers. Justice Brandeis, co-author of a Harvard Law Review article called The Right to Privacy forty years earlier, inveighed against the ruling using powerful and persuasive language. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness, he wrote:

They recognized the significance of mans spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alonethe most comprehensive of rights and the right most valued by civilized men.

Posterity has favored Brandeiss passion. Commentators and scholars today still quote and muse over his formulation of the right to be let alone. They explore how that notion might be implemented to preserve the values that the Framers held dear.

But Brandeiss words did not found a sustaining rationale for Fourth Amendment protection. The proof is in the eating of the pudding: Modern Fourth Amendment jurisprudence is a muddle, and it is sorely challenged by advances in information technology. This is particularly poignant because Brandeis foresaw the surveillance capabilities enabled by todays information and communications technologies. Ways may someday be developed, he wrote, by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.

The case that reversed Olmstead, of course, was Katz v. United States. In Katz, thirty-nine years later, Justice Harlan shared his sense of how the Constitution controls government access to private communications in his solo concurrence: My understanding, he wrote, is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.

Since then, courts have analyzed whether defendants have had a reasonable expectation of privacy in information or things. Under Justice Harlans concurrence, if not the Katz majoritys rationale, the defeat of a reasonable expectation of privacy signals a constitutional search generally requiring a warrant.

That doctrine has not worked. Courts rarely follow the full analysis Justice Harlans formulation suggests. They rarely inquire into a defendants actual (subjective) expectation of privacy, for example, or how it was exhibited. The second half of the test requires judges to use their own views on privacy as a proxy for objectivity, though they are neither public opinion researchers nor sociologists. Against litigants importuning about privacy, courts after Katz have found as often as not that the Fourth Amendment does not protect the security of sensitive and revealing information.

In Smith v. Maryland, for example, one of the leading communications privacy cases, the Supreme Court found that placement of a pen register on a suspects phone line without a warrant did not violate the Fourth Amendment. [W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial, Justice Blackmun wrote. Walking through the influences that would suppress expectations of privacy in phone-dialing, and none that would support it, he said, It is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

A Court without Justice Brandeiss passion for privacy is evidently quite free to undercut it. So in United States v. Karo, government agents had arranged with an informant to surreptitiously install a radio beeper in a container. They used the presence of the beeper in the container over a period of several days to locate it at three different residences and in the driveway of a fourth, to locate the container in a pair of self-service storage facilities, and also to locate it in transitall the while unable to suffer the inconvenience of getting a warrant. The Court did not examine whether all this warrantless beeper-tracking was reasonable. It gave the once-over to Karos expectation of privacy and found his (presumed) feelings unreasonable.

More recently, the reasonable expectation of privacy test produced a ruling that government agents examination of a stopped vehicle with a drug-sniffing dog is not a Fourth Amendment search. It is hard to think of a word better than search for such highly focused analysis of whether certain particulates exist in the air. Some cases certainly have maintained the protection the people have from inquisitive government agents, but the right to be let alone has not fared all that well when privacy and expectations thereof have been the locus of the Courts decision-making.

If Justice Brandeiss passion did not lay the groundwork for sound administration of a strong Fourth Amendment right, perhaps Justice Butlers Olmstead dissent could. His challenge to the majority decision eschewed feelings, instead examining the legal status of telephone conversations:

The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass. During their transmission, the exclusive use of the wire belongs to the persons served by it. Wiretapping involves interference with the wire while being used. Tapping the wires and listening in by the officers literally constituted a search for evidence.

The communications belong to the parties between whom they pass. It is a fascinatingand very differentway of thinking about what happened in Olmstead. Justice Butler would have protected Olmsteads calls from warrantless wiretapping not because it is part of human essence to have communications remain private, as Justice Brandeis said, but because peoples conversations are not the governments to listen to.

Justice Butlers formulation holds the seeds of an alternative way to administer the Fourth Amendment. It is technical and value-free, but it offers the hope of better Fourth Amendment administration because it is more susceptible to sound application than current Fourth Amendment doctrine. Its use would provide consistent and reliable protection for Americans liberties and a stable rule for law enforcement in a time of technological change.

Courts in Fourth Amendment cases should decline to invoke doctrine that requires them to make broad social pronouncements. Rather, they should apply the text of the Amendment and general legal principles as literally as possible to the facts of cases. That is not always easy, and it requires new and deeper analysis of what it means to search and to seize. It also requires fuller awareness of property and contract rights as they apply to communications and data. But it is a more methodical judicial exercise than applying reasonable expectations doctrine, and it would achieve the current Courts goal of preserving that degree of privacy against government that existed when the Fourth Amendment was adopted.Applying the law to the facts is the better way to administer the Fourth Amendment.

Read more at: https://constitutioncenter.org/digital-privacy/The-Fourth-Amendment-in-the-Digital-Age

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The Fourth Amendment in the Digital Age - Constitution Daily (blog)

PostedMay 1, 2017 10:04 AM

UpdatedMay 1, 2017 11:30 AM

ByTimothy P. ONeill

Pretend you are taking the SAT exam. Here is a fill-in-blank question from the verbal section:

A man is walking alone on a sidewalk in a high-crime neighborhood. Two police officers are in a car approaching from the opposite direction. The car stops. One officer rolls down the window and begins to speak to the man: Come here, the officer _______.

Which word best completes the sentence?

A. commands

B. orders

C. asks

If you answered either A or B, you are still in the running for that college scholarship you are after.

If you answered C, you have probably just blown your chance for a perfect score on the verbal section. But you may have just secured yourself a seat on the Illinois Appellate Court. To understand why, take a look at People v. Ramsey Qurash, 2017 IL App (1st) 143412 (decided March 16, 2017).

The facts of the case match our SAT question above. Chicago police officer Stephen Gregory testified that after he said Come here, Qurash dropped a large white bottle into the snow. Gregory got out of the car, picked up the bottle and saw it contained a leafy substance that appeared to be marijuana. He arrested Qurash and found more contraband on his person. Qurash was charged with several drug offenses.

The majority opinion characterizes the issue in the case as [D]eceptively simple: [A]s a matter of law, do the words come here, uttered by a police officer to a citizen, result in a seizure. If it does result in a seizure, then the drugs must all be suppressed since Officer Gregory lacked either probable cause or reasonable suspicion at the moment he said those two words. The [1]st District decided the issue by characterizing Come here as a mere request that did not result in a seizure, and thus affirmed the conviction.

However, Justice David Ellis filed a dissent contending that no reasonable person would have interpreted Come here as a mere offer he could refuse. Qurash did not consent to an officers request; rather, he acquiesced to the officers command. And because the officer lacked any suspicion whatsoever when he issued that command, the seizure violated the Fourth Amendment and the conviction must be reversed.

Preliminarily, both the majority and the dissent agree that the trial courts holding that the officers words did not constitute a seizure was a question of fact deserving deferential review.

I am not so sure. True, the trial courts finding that the officer said Come here is a question of historical fact that deserves deferential review. And whether or not a defendant has voluntarily consented to an officers request for a search or seizure is an issue reviewed deferentially in Illinois. People v. West, 2017 ILL. App. (3d) 130802.

But the issue of whether a seizure has occurred is a question of law that merits de novo review. In fact, as noted above, the majority even began its analysis by describing the issue in the case as a matter of law. (Slip, 5) A seizure occurs when a reasonable person would believe he is not free to leave. U.S. v Mendenhall, 446 U.S. 544 (1980) (opinion of Stewart, J.).

Deciding how a reasonable person would react to Come here is an objective test resulting in a finding of law that merits de novo review.

Yet even under a deferential standard, I believe the dissent is correct that a seizure occurred when the officer said Come here and that the trial court was clearly erroneous in holding otherwise.

It is worth quoting Ellis at length: Those two words, alone, are not a request. Nor could they plausibly be construed as a question (Come here?) To a man walking down the street, alone at night, in a high-crime neighborhood, when two officers stopped their car in the middle of the street and one of them said, Come here, any reasonable person would believe that he was required to comply with that directive that he was not free to leave.

The dissent does something else worth noting. It exhibits an awareness that an appellate court decision is not a one-off; it does not exist in a vacuum. An appellate decision in a common-law system must of necessity be Janus-faced: It must decide the case that has already occurred in the past with the realization that its decision will have impact on people in the future.

This leads Ellis to say I fear that the majoritys holding will have the unintended effect of encouraging individuals not to comply with a police officers request, or order, to come here. Under the majoritys reasoning, the best way for citizens to protect their [F]ourth [A]mendment rights is to ignore the police in that context because if they complied even though not required to do so, they would be consenting to police questioning without any [F]ourth [A]mendment protections at all.

And Ellis goes on to note the dilemma the court has created for a pedestrian in the future. For if she refuses to comply and simply continues walking and if the officer continues to say Come here a person could find herself accused of resisting or obstructing a lawful order of the police. Ellis cites People v Synnott for the proposition that merely refusing a police officers lawful order to move can constitute interference with the officer in the discharge of his or her duty. 349 Ill. App. 3d 223, 229 (2004).

Elliss dissent makes this case worth a second look. For, as he notes, Come here is not a question. Come here is not a request. Come here is an order.

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Fourth Amendment trouble brewing - Chicago Daily Law Bulletin

As John Elwood noted recently at SCOTUSblog, the Supreme Court has relisted a set of pending cert petitions on whether the Fourth Amendment protects historical cell-site data. The relisting means that the justices didnt turn down the petitions at the usual time. They are holding the petitions, deferring a decision on whether to grant them. Thats usually a sign of some interest at the court. How much interest there is, we dont yet know.

I have mixed views on whether the court should take these cases. On one hand, theres no split. Every circuit court and state supreme court to rule on the issue has ruled that the Fourth Amendment does not protect historical cell-site data. The cert petitions claim a circuit split with the U.S. Court of Appeals for the 3rd Circuit, but I dont think thats right. The 3rd Circuit merely speculated about the possibility of Fourth Amendment protection in the course of making a statutory ruling.

A clear split would be helpful in this kind of case because once you say that historical cell-site data can be protected, you then get to the really hard issue of when it is protected. Is it always protected? Is it protected only in some aggregate fashion under a mosaic theory? Does the resolution of the location data in the records make a difference? Is there a warrant requirement? What is the particularity of a cell-site warrant? There are no obvious answers to those questions. It might help the justices in a future Supreme Court decision to have the benefit of circuit court rulings trying to answer those questions.

On the other hand, theres a plausible argument that the court should take the cases now without a split. That argument can draw on several different points. First, whether the Fourth Amendment protects historical cell site data is a hugely important question. The Supreme Court should step in and rule on it an some point. Second, while there is no split, there are certainly lots of opinions on the other side. Most obviously, there were 4th Circuit and 11th Circuit panel decisions, both later overturned en banc, that could provide the food for thought on the other side (even if rather unusual food for thought) that a split would ordinarily help provide.

Third, this issue is coming up so often, in almost every state and circuit, that a split is likely to emerge eventually. Fourth, the technology seems relatively stable, permitting the justices to weigh the need for equilibrium-adjustment. And fifth, the Davis good faith exception would apply down the road where a circuit has already ruled, which may counsel toward granting cert sooner to ensure that there are real stakes in the litigation when the Supreme Court decides it.

Of course, as a Fourth Amendment nerd I think it would be great if the court took these cases. The more Fourth Amendment cases on the docket, the better! As for whether they will, stay tuned as always.

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Will the Supreme Court agree to hear the Fourth Amendment cell-site cases? (And should they?) - Washington Post

LISTEN TO TLRS LATEST PODCAST:

by Micah J. Fleck

Yes, you read that right. A new type of undergarment that still shows up under TSA body scanning technology has been developed and it dons the text of that precious thing called the 4th Amendment to the U.S. Constitution.

According to Red Alert Politics:

Are you tired of TSA agents conducting invasive screenings and X-ray scans on you before traveling on a United Airlines flight thats run out of Pepsi?

Well, 4th Amendment Wear may not be able to help with the last two, but they can certainly aid you in telling off the TSA with a new garment you can wear when youfly.

Using metallic ink, 4th Amendment Wear literally prints the FourthAmendment of the United States Constitution onto t-shirts, underwear for men and women, and perverts kids underclothes for when the TSA agent goes too far with your children.

For those who are unaware, the Fourth Amendment ensures ones right to privacy and protects them from illegal searches and seizures from government entities.

The free market is grand, indeed.

gropingNaked Body ScannersSee-thruThe 4th AmendmentTSAunderwearX-Ray

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Special Underwear Reciting the 4th Amendment Developed to Block ... - The Libertarian Republic

ST. PAUL A Wabasha police officer had no right to stop a man he saw driving down a narrow dirt road a stop that led to a DWI charge and the revocation of his driver's license.

The Minnesota Court of Appeals handed down the decision Monday, ruling in favor of David Kenneth Schlicher, 41, of Elk River. It reversed a May 2016 ruling by Wabasha County District Court Judge Terrance Walters.

Monday's ruling sends the case back to district court.

The case began early March 3, 2016, when Wabasha officer spotted Schlicher turn onto a narrow dirt road. The officer knew the private road led only to a commercial business, which was closed at that hour, so he followed Schlicher's vehicle.

As the officer drove down the dirt road, he saw Schlicher's vehicle coming toward him. The officer put his squad car in reverse because the road was too narrow for them both to fit, and he "didn't want to approach the vehicle from the front," the complaint says.

The officer stopped his squad near the end of the dirt road and got out; another squad car arrived about then. Schlicher's car was still moving when the first officer got out of his car Schlicher testified that he only stopped his vehicle because he couldn't fit past the squad car.

After an investigation at the scene, the officer arrested Schlicher for DWI. He refused to take a breath test, and his license was revoked.

Schlicher challenged the revocation in Wabasha County District Court; he disputed, among other issues, that the officer had a "reasonable, articulable suspicion of criminal activity to stop" Schlicher's car. It was, he said, a violation of his Fourth Amendment rights.

The district court ruled the officer's stop was constitutional, and upheld the license revocation.

Schlicher then appealed to the state court.

The judges agreed that the "seizure" occurred when the officer parked his car, exited and began walking toward Schlicher's car, which was still moving.

The officer didn't reverse his squad car out onto the main road, which would have allowed Schlicher complete access to the main road, the document says.

"Considering the positioning of the officer's squad car on the narrow road; the fact that the officer exited his vehicle while (Schlicher) was still driving; and the fact that another squad car had arrived on the scene, we conclude that the officer's actions constituted a seizure because no reasonable person in appellant's position would have felt free to leave," the judges wrote.

Nor did the officer have a reasonable suspicion of criminal activity, they continued; "in fact, the officer testified that his actions were motivated by his curiosity."

The area wasn't known for, or vulnerable to, criminal activity, the ruling says, and the officer didn't suspect some wrongdoing was occurring.

"The only factors to which the officer testified that would suggest criminal activity were the time of night, that he had never before seen anyone driving on that private narrow road, and that the narrow road led to a closed business.

"These factors are insufficient," the justices wrote, "and the stop and seizure were unlawful."

The rest is here:
Appeals Court: Area case violated Fourth Amendment rights - Post-Bulletin

5594003

The Fourth Amendment to the U.S. Constitution requires the government to obtain a warrant before it can conduct a search and seizure of private property. To get a warrant, the federal government must have probable cause, which means it must have good reason to suspect the property being searched contains evidence of a crime.

But do these Fourth Amendment requirements apply to property held overseas, in other countries? In the 2016 case of Microsoft v U.S., the Second Circuit Court of Appeals held that the Fourth Amendment does apply to the search of property stored by and for U.S. citizens overseas.

That case involved a narcotics investigation. The federal government sought and obtained a warrant against Microsoft under the federal Stored Communications Act for the emails of a Microsoft customer. Microsoft, however, only provided data that was stored on servers in the U.S.

But the emails the investigators mostly wanted were stored on servers in Dublin, Ireland. The District Court consequently held Microsoft in civil contempt for failing to comply with the warrant as to those overseas emails.

On appeal, however, the Second Circuit reversed, holding that the Stored Communications Act did not apply to emails stored overseas. The Act used the term warrant, which historically did not apply to the search and seizure of property held by U.S. citizens abroad. The Second Circuit held that the primary focus of the Act was to protect the privacy of U.S. citizens, not to protect law enforcement access, which is why it used the term warrant.

The Court said,

[W]e think [Congress] used the term warrant in the Act to require pre-disclosure scrutiny of the requested search and seizure by a neutral third party, and thereby to afford heightened privacy protection in the United States. It did not abandon the instruments territorial limitations and other constitutional requirements. The application of the Act that the government proposes interpreting warrant to require a service provider to retrieve material from beyond the borders of the United States would require us to disregard the presumption against extraterritoriality that the Supreme Court restated and emphasized in Morrison.and, just recently, in RJR Nabisco, Inc.We are not at liberty to do so.

The Court added further,

The importance of the warrant as an instrument by which the power of government is exercised and constrained is reflected by its prominent appearance in the Fourth Amendment.Warrants issued in accordance with the Fourth Amendment identify discrete objects and places, and restrict the governments ability to act beyond the warrants purview of particular note here, outside of the place identified.As the term is used in the Constitution, a warrant is traditionally moored to privacy concepts applied within the territory of the United States.

Next month, Congress is expected to conduct a hearing on the issue and one worry is that Congress will try to moot the case by passing legislation extending warrants beyond the territory of the United States. This hearing will explore the idea of whether the data produced by an individual is the property of the person, the company or the government. Obviously, a warrant, based on probable cause, allows the government to get data under circumstances of a criminal investigation and some investigations that touch on national security, but traditionally a warrant only can be served within the boundaries of the United States, unless a foreign nation consents and helps to effectuate the warrant.

If the federal government were to push a change, it could lead to data localization and a destruction of the business model that allows American-based cloud computing to exist today. Those concerned about the civil liberties protected by warrants should be concerned and keep a close eye on Congress as this debate moves forward.

Peter Ferrara served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under President George H.W. Bush. He also served as General Counsel of the American Civil Rights Union (ACRU) from the organizations founding in 1998 until 2015.

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Does The Fourth Amendment Apply Overseas? - Daily Caller

The Owner-Operator Independent Drivers Assn. is taking its opposition to the electronic logging device mandate to the highest court in the land. The small business trucking group this week filed a petition with the Supreme Court of the United States, arguing that the U.S. Court of Appeals for the Seventh Circuit was wrong when it ruled that the e-log requirement does not violate Fourth Amendment protections against illegal search and seizure. The deadline for compliance with the ELD rule is Dec. 18.

We believe that the Seventh Circuit erred in allowing warrantless searches of 3.5 million drivers, designed specifically to uncover evidence of criminal activity, said Jim Johnston, president and CEO of OOIDA. In doing so, the Seventh Circuit decision splits directly with rulings by both the Fifth and Eleventh Circuit Courts. This is also the first time that the pervasively regulated industry exception has been applied directly to the search of an individual to serve the ordinary needs of criminal law enforcement.

OOIDA contends that the pervasively regulated industry exception to the warrant requirement, the basis of the Seventh Circuits denial, does not extend beyond the search of business premises. Additionally, for such an exception and warrantless search, the Supreme Court imposed strict guidelinesguidelines which the ELD rule does not specifically address.

In short, according to OOIDA, an ELD requirement is the equivalent of warrantless surveillance of truckers.

The ELD Rule does far more than authorize administrative inspections of business premises. HOS regulations are directed toward the personal conduct of drivers, the petition states. ELDs monitor and record driver conduct, including driver activity and location, twenty-four hours per day, seven days per week, more expansively and invasively than paper logbooks currently do.

The association will also continue to pursue the issue on the congressional side as part of its Knock Out Bad Regs campaign and will continue to communicate with the Trump administration about this and other regulations, Johnson said.

We were very disappointed and surprised by the ruling against us by the Seventh Circuit Court of Appeals, Johnston said. That same court had ruled in our favor on a previous lawsuit of ours on this same issue. said Johnston.

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OOIDA appeals to Supreme Court | ELD mandate violates 4th ... - Fleet Owner