Category Archives: Fourth Amendment

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Reasonable Suspicion

Most student searches in schools begin as a result from some reasonable suspicion by a school district employee that the student has violated a law or school policy. In order to have reasonable suspicion a school employee must have facts that support the suspicions are true. A justifiable search is one in which a school employee:

The information or knowledge possessed by the school employee must come from a valid and reliable source to be considered reasonable. These sources can include the employees personal observations and knowledge, reliable reports of other school officials, reports of eyewitnesses and victims, and/or informant tips. The suspicion must be based on facts and weighted so that the probability is sufficient enough that the suspicion may be true.

A justifiable student search must include each of the following components:

In general, school officials cannot search a large group of students just because they suspect that a policy has been violated, but have been unable to connect the violation to a particular student.

However, there are court cases that have allowed such large group searches particularly concerning the suspicion of someone possessing a dangerous weapon, which jeopardizes the safety of the student body.

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Fourth Amendment Rights - Search and Seizure in Schools

Elections

Sep 1, 2015

The Kentucky senator assures Vermont voters he can win in blue and purple states.

The Kentucky senator assures Vermont voters he can win in blue and purple states.

April Burbank, The Burlington (Vt.) Free Press

Jun 30, 2015

July 1 is the effective date of many state laws.

July 1 is the effective date of many state laws.

Erin Raftery, USA TODAY

Aug 31, 2015

The Supreme Court says former Virginia governor Bob McDonnell can remain out of prison

The Supreme Court says former Virginia governor Bob McDonnell can remain out of prison

Richard Wolf, USA TODAY

Jul 1, 2015

Readers share a patriotic moment and thoughts on how to unite country.

Readers share a patriotic moment and thoughts on how to unite country.

USA TODAY

Jul 7, 2013

It's our right as American citizens to have privacy in our own homes.

It's our right as American citizens to have privacy in our own homes.

Glenn Harlan Reynolds

Jul 1, 2014

ACLU says warrantless inspection is a violation of the Fourth Amendment.

ACLU says warrantless inspection is a violation of the Fourth Amendment.

Rachel Chason, USATODAY

May 11, 2015

He wants to combat the disrespect of American flags he's been seeing on social media.

He wants to combat the disrespect of American flags he's been seeing on social media.

Anne Stegen, KPNX-TV, Phoenix

Apr 21, 2015

Some want Delaware to become the fourth state to restrict vaping as smoking already is.

Some want Delaware to become the fourth state to restrict vaping as smoking already is.

Jon Offredo, The (Wilmington, Del.) News Journal

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Fourth Amendment - USA TODAY

Subscribe to Fourth Amendment RSS Feed By Angel Diaz on July 13th, 2015 Posted in Fourth Amendment, Privacy Litigation

In City of Los Angeles v. Patel, the Supreme Court invalidated a Los Angeles law that allowed law enforcement officials to inspect hotel and motel guest registries at any time, without a warrant or administrative subpoena. The Court ruled that the law violated hotel owners Fourth Amendment rights because it penalizes them for declining to Continue Reading

On June 25, 2014, the Supreme Court unanimously ruled that police must first obtain a warrant before searching the cell phones of arrested individuals, except in exigent circumstances. Chief Justice John Roberts authored the opinion, which held that an individuals Fourth Amendment right to privacy outweighs the interest of law enforcement in conducting searches of Continue Reading

The U.S. Supreme Court heard arguments last month inClapper v. Amnesty International, a case that asks the Court to determine whether a group of lawyers, journalists, and human rights workers have standing to challenge the federal governments international electronic surveillance program under the Foreign Intelligence Surveillance Act. The plaintiffs alleged Fourth Amendment privacy violations among Continue Reading

On Monday, the California Supreme Court ruled that the Fourth Amendment to the United States Constitution did not prohibit a deputy sheriff from conducting a warrantless, post-arrest search of the text messages of an arrestee.Specifically, the Court affirmed the decision of the Court of Appeal that the cell phone was immediately associated with [defendants] person Continue Reading

According to a federal court in the Northern District of California, United States border agents may not search a laptop without a warrant several months after the agents seized the laptop.

The June 18, 2008 Ninth Circuit panel decision in Quon et al. v. Arch Wireless et al., No. 07-55282 (9th Cir. June 18, 2008) has sparked a flurry of news reports and speculation regarding employers ability to monitor employees e-mails and text messages.In fact, the decision appears to change very little for private employers who Continue Reading

My very first blog post addressed a precedent-setting decision of the Central District of California holding that federal agents could not conduct a border search of the private and personal information stored on a travelers computer hard drive or electronic storage devices without reasonable suspicion. Eighteen months later, the Ninth Circuit has squarely reversed that decision. In a short opinion filed April 21, 2008, Judge OScannlain wrote in U.S. v. Arnold, No. 06-50581, that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border. As far as the Ninth Circuit is concerned, for purposes of border searches under the Fourth Amendment, laptops and other electronic storage devices are not so much like a home or the human mind they are more akin to luggage or a car.

In a novel case, the Ninth Circuit ruled on July 6, as amended July 25, that government surveillance of Internet Protocol (IP) addresses visited, to/from addresses of emails, and the total volume of information sent to or from an email account does not violate the Fourth Amendment.United States v. Forrester, No. 05-50410, F.3d Continue Reading

Last week, a panel of the Ninth Circuit Court of Appeals held that in the absence of an announced monitoring policy, the mere act of connecting a computer to a network does not extinguish a users reasonable expectation of privacy, under the Fourth Amendment, in the contents of his or her computer.The panel announced its Continue Reading

Welcome to the LACBA California Privacy Law blog.This blog will provide a forum for summary and discussion of recent developments in California privacy law.California was the first state in the nation to require operators of commercial websites or online services to post privacy policies, and was the first state to pass legislation requiring notification to Continue Reading

Paresh Trivedi is a transactional lawyer with more than ten years of experience representing clients in technology, media, communications, cable programming, digital advertising and content distribution transactions and counseling clients on related legal compliance issues.

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Fourth Amendment | Privacy Law Blog

Posted Fri, August 10th, 2012 2:05 pm by Orin Kerr

The Fourth Amendment docket from the recently completed Supreme Court Term included four cases. Heres a run-down of the cases, with my thoughts on their significance to the development of Fourth Amendment law.

The most important Fourth Amendment case of the Term was United States v. Jones, widely known as the GPS case. The FBI installed a GPS device on the suspects car and tracked it for twenty-eight days. Most lower courts had ruled such conduct was not a Fourth Amendment search under United States v. Knotts, a 1983 case involving a radio beeper. To most lower courts, a passage from Knotts had a clear answer to GPS surveillance: A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.

The Courts decision was a surprise on several levels. First, the Court was unanimous as to the result; and second, the Justices split almost evenly along two equally underdeveloped rationales. Justice Scalias majority opinion for five Justices decided the case by purporting to rediscover a lost trespass test in Fourth Amendment law. Because installing a GPS device on the car would have been a trespass under eighteenth-century property law, Scalia asserted, the installation was a search. Followers of Justice Scalias Fourth Amendment opinions werent surprised that Scalia would want to move the Court in that direction: Justice Scalia has long wanted to find ways to move Fourth Amendment law towards what he sees as an originalist standard and away from the 1960s-era Katz framework. But as I explain in a forthcoming article for the Supreme Court Review, Justice Scalias claim that Fourth Amendment law adopted a trespass standard before Katz is itself a myth of the Katz Court. Although pre-Katz cases sometimes focused on physical entry, they did not adopt a trespass test. Given the protean nature of trespass concepts, the introduction of a trespass test in Fourth Amendment law under the guise of originalism is likely to raise many more questions than it answers.

The two concurring opinions in Jones suggested even more dramatic and far-reaching changes. Joined by a total of five Justices, the two concurring opinions offer a reconceptualization of the basic building block of Fourth Amendment analysis: Instead of asking whether individual government intrusions are searches, they suggest, the Court should look to whether aggregated acts of evidence collection and evidence are searches. Ill refer the reader to another forthcoming article for the details, if any are interested. Combining the three opinions together, all nine Justices wrote or joined opinions in Jones suggesting a considerable reworking of traditional Fourth Amendment doctrine. All in a decision ruling nine to zero in favor of a criminal defendant who ran a massive narcotics conspiracy.

The second most prominent Fourth Amendment case last Term was Florence v. Board of Chosen Freeholders, sometimes known as the prison strip search case. This case considered whether the Fourth Amendment allows detention facilities such as jails and prisons to force every person admitted to the facility to strip naked and be observed at close distance before entering the facility. In a five-to-four opinion by Justice Kennedy, the Court ruled that such observation was generally allowed. Jails are dangerous places, and the authorities need general rules to keep them safe without judicial micromanagement; as long as the person was to be admitted to the general prison population, such a search was permissible. Importantly, however, both Chief Justice Roberts and Justice Alito authored concurring opinions emphasizing that the Courts general rule might have exceptions. Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan, and argued that the Court could better balance the interests with a rule that such searches are unreasonable absent reasonable suspicion that the individual possesses contraband if the arrest was for a minor offense that does not involve drugs or violence.

If Jones stands out for how surprising the opinions were, Florence is the opposite. Its a classic balancing case in which the Justices tried to weigh the different interests and look for plausible lines to draw. The five Justices nominated by Republican Presidents weighed the interests more in favor of the jail administrators; the four Justices nominated by Democratic Presidents weighed the interests more in favor of the inmates. Although a lot of people have strong views about the case, I dont see much novel ground covered here as a matter of Fourth Amendment law.

That brings us to our two remedies cases, Messerschmidt v. Millender and Ryburn v. Huff, both civil cases brought under 42 U.S.C. 1983. In both cases, the Court reversed Ninth Circuit rulings that had denied qualified immunity. Ryburn was the easier case. The Court reversed summarily and unanimously a divided Ninth Circuit ruling authored by a district judge sitting by designation that was also joined by Chief Judge Kozinski (who reveals his libertarian streak in Fourth Amendment cases).

Messerschmidt is the more interesting remedies case, in part because it involved the all-too-common practice among investigators of being sloppy with the particularity of warrants. The Fourth Amendment requires warrants to particularly describe the property to be seized, and the warrants must develop probable cause for each of those items to be seized. In the suppression context, which is by far the more common context in which warrant particularity is litigated, courts tend to be quite generous with defects in particularity. If the police add in a catch all clause in the warrant that is obviously overly broad, courts usually just sever the obviously unconstitutional part of the warrant and allow the evidence if it was obtained by reliance on other parts of the warrant. (See, for example, the Sixth Circuits 2001 decision in United States v. Greene.) As a result, officers often arent as careful with particularity as they should be. By arising in a civil setting, Messerschmidt didnt allow the easy path of severability often seen in criminal cases.

A divided Court in Messerschmidt ruled that qualified immunity applied by taking a rather generous view of what kind of evidence might be present and relevant to a domestic dispute involving a gun fired by a gang member. As a practical matter, the most important aspect of the majority opinion is its conclusion that seeking and obtaining the approval of higher-ups bolstered the case of qualified immunity by indicating that the officer was not at personal fault. This ruling is in in significant tension with United States v. Leon, which generally requires only a facial review of the warrant to see if a defect is so significant that suppression is warranted. (The Court has generally equated the good-faith exception in the criminal setting and qualified immunity standard in the civil setting, so precedents from one context should be applicable to the other.) At the same time, the ruling is consistent with the recent trend of Roberts Court cases on Fourth Amendment remedies in emphasizing the personal culpability of individual officers as a prerequisite to liability. In my view, focusing on personal culpability is problematic: Bad faith is hard for defendants to uncover and the appearance of good faith is relatively easy for the police to game. Under Messerschmidt, even if the warrant has a serious defect, review by higher-ups may provide an extra defense against not only personal liability but suppression of evidence. Its too early to tell whether lower courts will connect those dots and use Messerschmidt in this way, but it seems quite plausible that they will.

Posted in U.S. v. Jones, Messerschmidt v. Millender, Florence v. Board of Freeholders, Analysis, Featured

Recommended Citation: Orin Kerr, Reviewing the Fourth Amendment cases of OT2011, SCOTUSblog (Aug. 10, 2012, 2:05 PM), http://www.scotusblog.com/2012/08/reviewing-the-fourth-amendment-cases-of-ot2011/

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Reviewing the Fourth Amendment cases of OT2011 : SCOTUSblog

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

- U.S. Const. amend. IV.

NACDL seeks to ensure that the Fourth Amendment remains a vibrant protection against encroachments on the privacy of the individual through litigation and public advocacy. The Fourth Amendment is the appropriate starting point for assessing the limits on government intrusion into ones privacy, and its protections must continue to thrive in the digital age. The Fourth Amendment and its guarantees should not turn on the medium used to transmit private information, nor on how the information is stored. NACDL strives to guarantee that evidence obtained in violation of the Fourth Amendment is excluded in a court of law.

NEW! NACDL REPORT: Mail Cover Surveillance: Problems and Recommendations

Excerpt from:
NACDL - Fourth Amendment

CALIFORNIA | LOCAL

November 7, 2011 | By Carol J. Williams, Los Angeles Times

Sunset Strip bookie Charlie Katz suspected the feds had bugged his apartment, so he would amble over to a pay phone outside where Carney's hot dog joint now stands to call in his bets to Boston and Miami. It was 1965, a time when phone booths had four glass walls and a folding door, allowing Katz to seal himself off from eavesdroppers. Or so he thought. FBI agents planted a recording device at the booth and taped his dealings, leading to his conviction on eight illegal wagering charges.

OPINION

April 9, 2009 | Lawrence Rosenthal, Lawrence Rosenthal is a professor of law at Chapman University School of Law in Orange.

John Yoo is a professor of law at UC Berkeley. This semester, he is my colleague -- as a visiting professor -- at Chapman University's School of Law. Yoo is also under investigation by the Justice Department's inspector general for his role in producing a number of controversial memorandums during his service in the department during the Bush administration. The memos include one stating that the president may authorize the torture of suspected terrorists. I am a former federal prosecutor.

NATIONAL

October 21, 2003 | David G. Savage, Times Staff Writer

The Supreme Court said Monday that it would consider creating a new right to remain silent -- this time for people who are stopped, but not arrested, by police. A stubborn Nevada man who was standing along a roadway when an officer approached him will get a hearing to decide a basic question that the high court has never squarely answered: Does the Constitution give a person the right to refuse to identify himself to the police?

NEWS

March 29, 2000 | DAVID G. SAVAGE, TIMES STAFF WRITER

In a rare rebuff to police, the Supreme Court ruled Tuesday that an officer may not stop and frisk a pedestrian based only on an anonymous caller's tip. Instead, the justices reaffirmed the Constitution's protection against unreasonable searches and stressed that officers need specific, reliable evidence of some wrongdoing before they stop a person on the street. The surprising 9-0 ruling threw out gun-wielding charges against a black youth in Miami who was frisked and arrested at a bus stop.

NEWS

December 2, 1998 | DAVID G. SAVAGE, TIMES STAFF WRITER

The Supreme Court narrowed the privacy protection of the 4th Amendment Tuesday, ruling that short-term visitors to a home are not shielded from police surveillance. The 6-3 decision reinstated the drug convictions of two Minnesota men who were observed by an officer who had peeked through the window blinds of a ground-floor apartment. The men, who were seen putting white powder into bags, did not live in the apartment nor were they overnight guests.

CALIFORNIA | LOCAL

April 8, 1998 | GREG KRIKORIAN, TIMES STAFF WRITER

In the abstract, there are few civil liberties the average person holds as dear as the constitutional protection against unlawful searches and seizures. But that affection is often tested when the 4th Amendment, like a bolted front door, is all that stands between police and the arrest of someone who officers say is a criminal. That is precisely the issue in what many legal observers are calling a groundbreaking case now before Los Angeles Superior Court Judge Gregory Alarcon.

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Articles about Fourth Amendment - latimes

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

The Fourth Amendment protection against "unreasonable searches and seizures" was adopted as a protection against the widespread invasions of privacy experienced by American colonists at the hands of the British Government. So-called "writs of assistance" gave royal officers broad discretion to conduct searches of the homes of private citizens, primarily as a way of discovering violations of strict British customs laws. This practice led to a unique awareness among our Founding Fathers of the threat to individual liberty and privacy that is created by unchecked government search powers.

Today, the Fourth Amendment has lost its preferred status among our cherished Bill of Rights Protections. In recent decades, growing concerns regarding crime and public safety in America have forced our Courts to balance the privacy rights contained in the Constitution with the ever-expanding needs of law-enforcement officers whose duty it is to investigate and arrest dangerous criminals. The Supreme Court's rulings in Fourth Amendment cases demonstrate the challenge involved in reconciling these competing ideals.

Ultimately, the Constitution's prohibition against unreasonable searches and seizures has been trimmed-down in recent years and tailored to suit the needs of modern law enforcement as we wage war against drugs and terrorism. For this reason, it is important for conscientious citizens to be familiar with the lawful parameters of police authority to conduct searches, as well as the legal doctrines by which that authority is limited.

The Fifth Amendment: Self-incrimination Clause

"...No person... shall be compelled in any criminal case to be a witness against himself or be deprived of life liberty or property without due process of law..."

* The Supreme Court has made a new ruling that you must tell the police officer that you will NOT talk to him, you request a lawyer and then keep your mouth shut.

The right against self-incrimination has ancient roots in common law dating back to biblical times. While most provisions of the Fifth Amendment, such as the right to a jury trial and the right against double jeopardy, impose restrictions upon our courthouses, the right against self-incrimination has a profound effect upon the behavior of law-enforcement officers as they investigate crimes. For this reason, the meaning of the self-incrimination clause has remained one of the most controversial issues in criminal procedure since the Supreme Court's ruling in Miranda v. Arizona.

At this time, it is required by the Supreme Court that police inform all criminal suspects of their right to remain silent prior to interrogation. This right extends from the point of arrest throughout the suspect's involvement in the criminal justice system. While many in the law-enforcement community feel that this restriction unfairly limits the ability of police and prosecutors to obtain convictions, studies have shown that conviction rates have not changed significantly since the Court first required police to inform those arrested of their right against self-incrimination.

The Sixth Amendment: Right to Counsel Clause

"In all criminal proceedings, the accused shall enjoy the right to have the assistance of counsel for his defense."

The Sixth Amendment right to counsel is a critical component of the Bill of Rights in that it provides the accused with an advocate who is trained in the legal process and can provide a safeguard against violations of the suspect's other Bill of Rights protections. Interestingly, it was not until 1963 that the Supreme Court held that states must provide a lawyer for all felony suspects, ending disparities in legal representation based on economic class.

Today, all person charged with a serious crime in the United States enjoy the assistance of a defense attorney regardless of economic status. State-employed public defenders represent clients who cannot afford their own attorneys, and contrary to popular belief, achieve roughly equal outcomes for their clients as do the more expensive privately-hired lawyers.

The Relationship Between Self-incrimination and the Right to Counsel

Many Americans, particularly young people, have become cynical about police practices and our legal system. It is not uncommon to lose hope when arrested or even become angry at the officer or the law he is enforcing. It is an important reality however, that our legal system does provide services for the accused. It cannot be overstated how important it is to wait for legal advice before attempting to discuss a criminal charge with police. The subtleties of the legal process require careful decisions about what to say and how to say it. A lawyer will help you prepare for tough questions and can emphasize your positive qualities to the judge, including qualities you didn't know you had.

The constitution includes protections for criminal suspects because the legal system is incredibly complex, involving rules and regulations that everyday people would not understand. If you are charged with a crime, take advantage of the protections the constitution gives you. Don't talk to police about what happened until you have spoken with a lawyer and discussed how to present your side of the story.

News and Information at:

PoliceCrimes.com

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Fourth Amendment Body Search Home Search You rights ...

The below article was reproduced from The Federal Law Enforcement Informer, August 2015 issue. The Informer is a product published by the Department of Homeland Security, Federal Law Enforcement Training Center (FLETC), Office of Chief Counsel, Legal Training Division. The entire document, which contains case notes on notable federal cases, can be found here.

REASONABLENESS AND POST-RILEY SMARTPHONE SEARCHES

Robert Duncan, Esq.

Attorney Advisor and Senior Instructor

Office of Chief Counsel

Federal Law Enforcement Training Centers

Artesia, New Mexico

Reasonableness as Touchstone

The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures1 and in so doing, put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints [and] forever secure[d] the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law.2 With the remainder of the Fourth Amendment prohibiting the issuance of warrants without probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,3 officers may view the law governing search and seizure as largely evidentiary or procedural but the underlying command of the Fourth Amendment is always that searches and seizures be reasonable.4

The Supreme Court has clearly defined searches and seizures. A search occurs when

an expectation of privacy that society is prepared to consider reasonable is infringed[while] seizure of property occurs when there is some meaningful interference with an individuals possessory interests in that property.5 The Supreme Court has held that the touchstone of the Fourth Amendment is reasonableness6 but there is no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable.7

Determining Reasonableness

Determining whether a search is reasonable under the Fourth Amendment usually involves looking to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the [Fourth Amendments] framing8 or by assessing, on the one hand, the degree to which it intrudes upon an individuals privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.9

As neither a warrant nor probable cause is an indispensable component of reasonableness,10 the Supreme Court has determined that [w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing[]reasonableness generally requires the obtaining of a judicial warrant.11 In the absence of a warrant, drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime,12 a search is reasonable only if it falls within a specific exception to the warrant requirement,13 even if the warrantless search violates a persons reasonable expectation of privacy.14

The Supreme Court recognizes few specifically established and well-delineated exceptions15 to the warrant requirement. Those exceptions include the plain view doctrine,16 which allows an officer to seize evidence and contraband found in plain view during a lawful observation without a warrant;17 the Terry stop and Terry frisk, which grants authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual;18 certain limited searches incident to lawful arrest;19 and searches involving exigent circumstances.20

A party alleging an unconstitutional search must establish both a subjective and an objective expectation of privacy.21 The Supreme Court has held the subjective component requires that a person exhibit an actual expectation of privacy, while the objective component requires that the privacy expectation be one that society is prepared to recognize as reasonable.22

A smartphone users expectation of privacy is viewed objectively and must be justifiable under the circumstances.23 With the advent of social media and smartphones, people can post a photo or video from their phones, allowing them to share their lives instantly.24 Until 2014, one could make a colorable argument that it is unreasonable to have an expectation of privacy when one records and instantly shares life events on a smartphone; if there is no violation of a persons reasonable expectation of privacy by police or government agents, then there is no Fourth Amendment search.25 Despite the prevalence of sharing, users also routinely use passwords, thumbprint scans, or other mechanisms to prevent unwanted viewing of the devices contents. Using these features demonstrates an intention to keep a devices contents private; the remaining question is whether the privacy expectation created by using a password is one that society is prepared to recognize as reasonable.

In early 2014, the Pew Research Center conducted a study that found more than 90 percent of Americans now own or regularly use a cellphone, and 58 percent have a more sophisticated smartphone.26 Even though society may share some data to others, society accepts that privacy expectations are reasonable on data stored on a smartphone itself and protected by passwords. In a digital age all of our papers and effects [are no longer] stored solely in satchels, briefcases, cabinets, and folders [but] ratherstored digitally on hard drives, flash drives, memory cards, and discs.27 Even the Supreme Courtan institution that does not enjoy a tech-savvy reputationhas agreed that papers and effects have given way to smartphones and selfies.28

Riley v. California

The Supreme Court extended reasonable expectations of privacy to smartphone data in Riley v. California, 134 S. Ct. 2473, 2485, 189 L. Ed. 2d 430 (2014). Riley involved two separate arrests and searches of smartphones by police officers, demonstrates the inverse relationship between smartphone technology and reasonableness of smartphone searches. Officers attempted to search a phone as part of a Terry frisk.

As to the Terry frisk exception, the Court held that digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestees escape, thus significantly limiting the use of this exception for reasonable searches of smartphones.29 The Court also noted that smartphones place vast quantities of personal information literally in the hands of individuals [and a] search of the information on a cell phone bears little resemblance to the type of brief physical search considered in previous cases involving searches incident to lawful arrest.30

As to one of the remaining exceptions, exigent circumstances encompass a broad array of factors considered by the courts: the gravity or violent nature of the offense with which the suspect is to be charged; a reasonable belief that the suspect is armed; probable cause to believe the suspect committed the crime; strong reason to believe the suspect is in the premises being entered; the likelihood that a delay could cause the escape of the suspect or the destruction of essential Fourth Amendment evidence; and the safety of the officers or the public jeopardized by delay.31

The destruction of evidence factor was often cited in court cases through the mid-1990s through the late 2000s:

On a cell phone, the telephone numbers stored in the memory can be erased as a result of incoming phone calls and the deletion of text messages could be as soon as midnight the next day[O]nce the cell phone powers down evidence can be lost. [A popular cell phone, the Motorola Razer] has an option called message clean up that wipes away text messages between 1 and 99 days. There is no way to determine by

looking at the Razer cell phones screen, if the message clean-up option has been activated. If the one-day message clean up is chosen, any messages stored on the Razer cell phone will be deleted at midnight on the following day it is received.

Accordingly, this Court finds that exigent circumstances existed and the text messages retrieved from the Razer cell phones are admissible.32

As smartphone technology has developed, however, the Supreme Court views exigent circumstances with increasing skepticism. In 2014, the technology used in the most basic of phones was unheard of ten years ago33 and the current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos.34

Advances in technology also mean that officers can prevent destruction of data by disconnecting a phone from the networkFirst, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an [Faraday] enclosure that isolates the phone from radio waves.35 With these precautions in place, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone.36

Seek Warrant, Avoid Suppression of Evidence

With the Supreme Courts holding in Riley, trial courts will likely suppress smartphone evidence without a search warrant or factual information that an exception to the warrant requirement existed at the time of the search. Fortunately, officers can find model search warrant templates at the nearest Regional Computer Forensics Laboratories (RCFL) site and seek assistance from the Federal Bureau of Investigation (FBI). While other avenues exist for cell phone investigations, the RCFL and FBI are especially good resources because almost every FBI Field Office or Resident Agency has a Cell Phone Investigative Kiosk (CPIK) available for use.

According to the FBI, the CPIK allow users to extract data from a cell phone, put it into a report, and burn the report to a CD or DVD in as little as 30 minutes.37 Full-size kiosks are physically located in nearly all FBI Field Offices and RCFLs; portable kiosks are available at many FBI Resident Agencies. Drafting a search warrant and using the CPIK may help ensure that valuable information obtained from a smartphone may be admissible and help win convictions in a criminal case post-Riley.

1. U.S. CONST. AMEND. IV. 2. Mapp v. Ohio, 367 U.S. 643, 647, 81 S. Ct. 1684, 1687, 6 L. Ed. 2d 1081 (1961) citing Weeks v. United States, 232 U.S. 383, 391, 34 S. Ct. 341, 344, 58 L. Ed. 652 (1914). 3. U.S. CONST. AMEND. IV. 4. New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985). 5. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85 (1984). 6. See United States v. Knights, 534 U.S. 112, 112-13, 122 S. Ct. 587, 588, 151 L. Ed. 2d 497 (2001). 7. OConnor v. Ortega, 480 U.S. 709, 715, 107 S. Ct. 1492, 1496, 94 L. Ed. 2d 714 (1987). 8. California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 1549-50, 113 L.Ed.2d 690 (1991); See e.g. United States v. Watson, 423 U.S. 411, 418-420, 96 S.Ct. 820, 825-26, 46 L.Ed.2d 598 (1976); Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 283-84, 69 L.Ed. 543 (1925). 9. Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297, 1300, 143 L. Ed. 2d 408 (1999).

10. Natl Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S. Ct. 1384, 1390, 103 L. Ed. 2d 685 11. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). 12. Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). 13. See Kentucky v. King, 563 U.S. , , 131 S.Ct. 1849, 18561857, 179 L.Ed.2d 865 (2011). 14. See Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S. Ct. 2793, 2799, 111 L. Ed. 2d 148 (1990). 15. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). 16. Smartphones usually have an automatic lock or passcode which prevents casual observation by law enforcement officers, making this exception of limited use in the field.

17. See Horton v. California, 496 U.S. 128, 128, 110 S. Ct. 2301, 2303, 110 L. Ed. 2d 112 (1990). 18. See Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968).

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Fourth Amendment | Signal 108

The dust-up between New Jersey Gov. Chris Christie and Kentucky Sen. Rand Paul over presidential fidelity to the Constitution -- particularly the Fourth Amendment -- was the most illuminating two minutes of the Republican debate last week.

It is a well-regarded historical truism that the Fourth Amendment was written by victims of government snooping, the 1770s version. The Framers wrote it to assure that the new federal government could never do to Americans what the king had done to the colonists.

What did the king do? He dispatched British agents and soldiers into the colonists homes and businesses ostensibly looking for proof of payment of the kings taxes and armed with general warrants issued by a secret court in London.

A general warrant did not name the person or place that was the target of the warrant, nor did it require the government to show any suspicion or evidence in order to obtain it. The government merely told the secret court it needed the warrant -- the standard was governmental need -- and the court issued it. General warrants authorized the bearer to search wherever he wished and to seize whatever he found.

The Fourth Amendment requires the government to present to a judge evidence of wrongdoing on the part of a specific target of the warrant, and it requires that the warrant specifically describe the place to be searched or the person or thing to be seized. The whole purpose of the Fourth Amendment is to protect the right to be left alone -- privacy -- by preventing general warrants.

The evidence of wrongdoing that the government must present in order to persuade a judge to sign a warrant must constitute probable cause. Probable cause is a level of evidence sufficient to induce a neutral judge to conclude that it is more likely than not that the government will find what it is looking for in the place it wants to search, and that what it is looking for will be evidence of criminal behavior.

But the government has given itself the power to cut constitutional corners. The Foreign Intelligence Surveillance Act, the Patriot Act and the Freedom Act totally disregard the Fourth Amendment by dispensing with the probable cause requirement and substituting instead -- incredibly -- the old British governmental need standard.

Hence, under any of the above federal laws, none of which is constitutional, the NSA can read whatever emails, listen to whatever phone calls in real time, and capture whatever text messages, monthly bank statements, credit card bills, legal or medical records it wishes merely by telling a secret court in Washington, D.C., that it needs them.

And the government gets this data by area codes or zip codes, or by telecom or computer server customer lists, not by naming a person or place about whom or which it is suspicious.

These federal acts not only violate the Fourth Amendment, they not only bring back a system the Founders and the Framers hated, rejected and fought a war to be rid of, they not only are contrary to the letter and spirit of the Constitution, but they produce information overload by getting all the data they can about everyone. Stated differently, under the present search-them-all regime, the bad guys can get through because the feds have more data than they can analyze, thus diluting their ability to focus on the bad guys.

Among the current presidential candidates, only Paul has expressed an understanding of this and has advocated for fidelity to the Constitution. He wants the government to follow the Fourth Amendment it has sworn to uphold. He is not against all spying, just against spying on all of us. He wants the feds to get a warrant based on probable cause before spying on anyone, because thats what the Constitution requires. The remaining presidential candidates -- the Republicans and Hillary Clinton -- prefer the unconstitutional governmental need standard, as does President Obama.

But Christie advocated an approach more radical than the presidents when he argued with Paul during the debate last week. He actually said that in order to acquire probable cause, the feds need to listen to everyones phone calls and read everyones emails first. He effectively argued that the feds need to break into a house first to see what evidence they can find there so as to present that evidence to a judge and get a search warrant to enter the house.

Such a circuitous argument would have made Joe Stalin happy, but it flunks American Criminal Procedure 101. It is the job of law enforcement to acquire probable cause without violating the Fourth Amendment. The whole purpose of the probable cause standard is to force the government to focus on people it suspects of wrongdoing and leave the rest of us alone. Christie wants the feds to use a fish net. Paul argues that the Constitution requires the feds to use a fish hook.

Christie rejects the plain meaning of the Constitution, as well as the arguments of the Framers, and he ignores the lessons of history. The idea that the government must break the law in order to enforce it or violate the Constitution in order to preserve it is the stuff of tyrannies, not free people.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.

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Chris Christie, Rand Paul and the Fourth Amendment | Fox News

9.22 PARTICULAR RIGHTSFOURTH AMENDMENTUNREASONABLE SEIZURE OF PERSONEXCESSIVE (NONDEADLY) FORCE

In general, a seizure of a person is unreasonable under the Fourth Amendment if a police officer uses excessive force [in making a lawful arrest] [and] [or] [in defending [himself] [herself] [others]. Thus, in order to prove an unreasonable seizure in this case, the plaintiff must prove by a preponderance of the evidence that the officer[s] used excessive force when [insert factual basis of claim].

Under the Fourth Amendment, a police officer may only use such force as is "objectively reasonable" under all of the circumstances. In other words, you must judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of hindsight.

In determining whether the officer[s] used excessive force in this case, consider all of the circumstances known to the officer[s] on the scene, including:

1. The severity of the crime or other circumstances to which the officer[s] [was] [were] responding;

2. Whether the plaintiff posed an immediate threat to the safety of the officer[s] or to others;

3. Whether the plaintiff was actively resisting arrest or attempting to evade arrest by flight;

4. The amount of time and any changing circumstances during which the officer had to determine the type and amount of force that appeared to be necessary;

5. The type and amount of force used;

[6. The availability of alternative methods [to take the plaintiff into custody] [to subdue the plaintiff;]

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9.22 Particular RightsFourth AmendmentUnreasonable ...