Category Archives: Fourth Amendment

Fourth Amendment Police Potty Program
Retired Maryland state police officer Captain Jack McCauley speaking to a group of second amendment activists in Maryland.

By: James Madison

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Fourth Amendment Police Potty Program - Video

Judge Napolitano On The NSA And The Fourth Amendment
Source: https://www.youtube.com/user/FoxNewsChannel February 26, 2015 - Judge Andrew Napolitano on the NSA #39;s ability to ignore the Constitution. PigmineNews....

By: PigMine2

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Judge Napolitano On The NSA And The Fourth Amendment - Video

Mobile Security And The Fourth Amendment
There are a lot of things going on with mobile security that could be used against the American people. Stingray implementation, the FBI being able to spy on...

By: Bill Wynne

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Mobile Security And The Fourth Amendment - Video

Even if proponents of the NSA win over public opinion, their agenda will still be contrary to the Fourth Amendment.

When The Washington Post reported that 63 percent of Americans are "willing to give up personal privacy to let the federal government investigate terror threats," the polling data seemed like bad news for privacy activists and civil libertarians. But Reihan Salam argues that the 32 percent of Americans who oppose giving up privacy in the name of national security are winning. "They dont need a majority of the electorate to embrace their position in order to achieve their goals," he writes. "They merely need a vocal, well-organized minority."

To support that analysis, he points to the experience of gun owners, who've defeated various firearms restrictions even when a majority of Americans favored them. The intensity of their pro-gun views helps them to succeed, he observed, as do their strong social bonds, facilitated by pastimes like hunting and going to gun shows, where they see other gun owners, spread political information, and channel their intense views. Gun control advocates have no equivalent social ties.

Salam believes that surveillance skeptics have a similar edge over surveillance defenders:

No, not all of Snowdens biggest fans in America are affluent, well-educated libertarian technophiles who spend much of their spare time socializing on lesser-known corners of the Web. But these groups certainly overlap. Just as hunting and target shooting are ways that older gun owners cement social bonds, gaming and obsessively following Reddit could serve much the same function among young surveillance skeptics. Libertarian Republicans like Kentucky Rep. Thomas Massie, Michigan Rep. Justin Amash, and Kentucky Sen. Rand Paul have recognized the growing power of this constituency, and they cater to it by regularly addressing libertarian groups and pushing for surveillance reform...

...it gets worse for the defenders of surveillance authority. The Snowden revelations didnt just make working for the NSA less attractive. As Julian Sanchez, a privacy expert at the libertarian Cato Institute has explained, the revelations badly embarrassed major U.S. technology companies, particularly those that have substantial operations outside of the country. Suddenly the notion that Google and Facebook were essentially arms of the U.S. government seemed like more than a paranoid fantasy, particularly to consumers in Europe and Asia already inclined toward anti-Americanism. Before the revelations, these companies could work closely with the U.S. government to facilitate its surveillance efforts without ever being held to account. Even if they objected to getting pushed around by Uncle Sam behind closed doors, they had little incentive to make a stink about it, as doing so could jeopardize their business by raising suspicions. After the revelations, the international reputation of U.S. tech giants took a hit, and they had little choice but to push back forcefully and to ally themselves with civil liberties groups.

While I don't know who will ultimately win the fight over surveillance policy, these are, indeed, among the factors that give privacy advocates a fighting chance. I'd only add that there is an even bigger advantage that civil libertarians can press, and it too is helpfully illuminated by way of analogy to the gun-control debate. The NRA's most significant advantage is the 2nd Amendment. With its adoption, the Framers decided that the right to bear arms should be protected even in a future instance when a majority of the public and the legislature might feel otherwise.

Surveillance policy is comparable: 63 percent of Americans may be willing to sacrifice privacy in the War on Terrorism, but they lack the power to overturn the Fourth Amendment. Many seem to have forgotten its actual text, so here it is in full:

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.

That is the law of the land. And the NSA is violating its letter and spirit, no matter how many times its defenders use dubious legal reasoning to argue otherwise. The right of the people to be secure in their "persons, houses, papers, and effects" is meaningless if the NSA can seize and later search details about everyone's communications. The requirements for probable cause and particularity cannot be squared with surveillance that implicates practically everyone. The Fourth Amendment's historic attempt to end general warrants cannot be viewed as a success so long as the government is prying into the private affairs of tens of millions of people who are not even suspected of any wrongdoing.

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The Surveillance State's Greatest Enemy? The U.S. Constitution

Tuesdays argument in City of Los Angeles v. Patel, a Fourth Amendment case, presents a particularly difficult example of a common Supreme Court question: should the Court rule narrowly on the case before it, or answer far broader questions? That question does not always have obvious ideological parameters (although the Fourth Amendment context may color the Justices views in this case), and Tuesdays argument may be most interesting for the perspective it may provide on each Justices jurisprudential approach.

Moreover, both sides in Patel have assembled all-star casts of lawyers and amici. The plaintiffs brief shows Tom Goldstein (founder of this blog) and the Harvard Supreme Court clinic; while Los Angeless merits briefs show Josh Rosenkranz (former director of the Brennan Center) and Orin Kerr (also an occasional writer for this blog). Eighteen amicus briefs have been filed (and I do not pretend to have read them all). Thus, although the bulk of media attention this week will likely focus on Wednesdays argument in the challenge to the Affordable Care Act, this case now looks much harder, and more important, than it first appeared.

The basics of the case

The case presents a Fourth Amendment challenge to a municipal ordinance that authorizes administrative law-enforcement searches of hotel and motel guest registers. Administrative search is a label generally used to describe governmental inspections of commercial premises for health and safety reasons that is, not based on probable cause to believe a crime has been committed, and not looking primarily for evidence of crime. (In recent years the Court has used the label of special needs searches to capture an even broader category of searches that includes administrative).

Here, the Los Angeles ordinance in question provides that records of information about guests that hotel are required by law to keep guest registers shall be made available to any officer of the Los Angeles Police Department for inspection at a time and manner that minimizes any interference with the operation of the business. The ordinance appears to have been enacted to provide a disincentive for the short-term use of hotels and motels for crime. It was stipulated below (that is, agreed to by all parties) that the ordinance authorizes the police to inspect such guest registers without the hotel owners consent and, most significantly, without a warrant. A group of motel owner-operators sued, and once various stipulations were reached, all parties agreed that the sole issue is a facial constitutional challenge to the ordinance under the Fourth Amendment. They sought a declaratory judgment against the ordinance and an injunction prohibiting its enforcement.

The district court upheld the ordinance, ruling that hotels have no reasonable expectation of privacy in their guest information. That issue, however, appears to have dropped out of the case: the Ninth Circuit ruled, and Los Angeles now concedes, that hotels have some privacy interest in their guest registers, even if limited, such that an inspection under the ordinance constitutes a search for Fourth Amendment purposes. (Also, be careful not to confuse the privacy interests of the hotel owners with privacy concerns of guests. Only the former are at issue here; and because guests have already disclosed their personal information to the hotels, precedent would say that they have no further expectation of privacy in the records in any case.)

Not one, but two, questions are presented

In its current appellate posture, the substantive Fourth Amendment issue before the Court seems clear: is a municipal ordinance, which requires hotels to make their hotel registers available for surprise (unannounced) inspections by the police, unconstitutional because the police are not required to obtain a warrant in advance? By a vote of seven to four, the Ninth Circuit ruled en banc that such a warrantless business-information search ordinance is unconstitutional. The circuit relied on cases such as Camara v. Municipal Court of the City and County of San Francisco (1967) and Marshall v. Barlows, Inc. (1978), which hold that under the Fourth Amendment, governmental officials generally must obtain administrative warrants in advance of conducting commercial business searches. The majority rejected the idea that hotels are closely [that is, pervasively] regulated businesses, which prior decisions hold can support an exception to the general advance-warrant rule.

The dissenting Ninth Circuit judges, however, while debating the substantive point, made a procedural argument their main focus. They quoted Sibron v. New York (1968): The constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of [an] individual case. Because the hotel-owner plaintiffs here had agreed in the trial court to drop their as applied challenge in favor of a facial attack based on stipulated facts, this case now presents an issue far broader than the specific hotel-register ordinance: may statutes and ordinances ever be challenged under the Fourth Amendment on a facial basis? Substantial party and amicus briefing has now gone into this second, procedural, issue.

Three reasons that this case is harder, and more important, than it may look

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Argument preview: Hotel guest registers and the Fourth Amendment harder than it looks?

By Andrew P. Napolitano

What if the current massive spying on Americans began with an innocent secret executive order signed by President Ronald Reagan in 1986? What if Reagan contemplated that he was only authorizing American spies to spy on foreign spies unlawfully present in the United States?

What if Reagan knew and respected the history of the Fourth Amendment? What if the essence of that history is the Colonial revulsion at the British use of general warrants?

What if general warrants were issued by a secret court in London and authorized British agents in America to search wherever they wished and to seize whatever they found? What if the revulsion at this British government practice was so overwhelming that it led to the Revolutionary War against the king?

What if the whole purpose of the Fourth Amendment was to outlaw general warrants? What if the Fourth Amendment specifically guarantees the right to privacy to all in America in their persons, houses, papers and effects?

What if, in order to emphasize its condemnation of general warrants, the Fourth Amendment requires the government to obtain a warrant from a judge before invading the persons, houses, papers or effects of anyone and lays down the preconditions for the issuance of such warrants? What if those preconditions are individualized suspicion and articulated evidence of crime called probable cause about the specific person whose privacy the government seeks to invade?

What if these principles of constitutional fidelity, privacy and probable cause and the unlawfulness of general warrants have been regarded universally and publicly as quintessentially American values values that set this nation apart from all others?

What if the administration of President George W. Bush was so embarrassed that 9/11 happened on its watch that it fought a useless public war in Iraq which had nothing to do with 9/11 and a pernicious private war against American values by unleashing American spies on innocent Americans as to whom there was no individualized probable cause so that it could create the impression it was doing something to keep America safe from another 9/11-like attack?

What if the Bush folks took Reagan's idea of spying on foreign spies and twisted it so that they could spy on not just foreign spies but also on foreign persons? What if they took that and leapt to spying on Americans who communicated with foreign persons?

What if they then concluded that it was easier to spy on all Americans rather than just those who communicated with foreign persons? What if they claimed in secret that all this was authorized by Reagan's executive order and two federal statutes, their unique interpretations of which they refused to discuss in public?

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What if the government fears freedom?

The Bill of rights in Action: The Right to Privacy - 1970 Educational Film - S88TV1
An open-ended film designed to instigate discussion on what constitutes an unreasonable invasion of privacy, focusing on the Fourth Amendment, Search and Sei...

By: Tomorrow Always Comes

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The Bill of rights in Action: The Right to Privacy - 1970 Educational Film - S88TV1 - Video

Philadelphia, Pennsylvania (PRWEB) February 25, 2015

In its recent decision in U.S. v. Michael Wright, 2015 WL 507169 (3d Cir., Feb. 2015), the Third Circuit extended its recent holding in U.S. v. Franz, 772 F. 3d. 134 (3d Cir. 2014), thereby further diluting the protection of the Fourth Amendment, says federal criminal defense attorney Ms. Hope Lefeber.

According to court documents, as part of their investigation,DEA agents obtained a search warrant, signed by a magistrate judge, for Defendant Michael Wrights apartment. An affidavitsummarizing the Governments knowledge of the conspiracy and containing a list of items the DEA expected to findwas also attached and signed. Subsequently, the Government sealed the affidavit (to preserve details relating to an ongoing investigation). When the DEA executed the search, they were unable to provide Defendant with a list of items to be seized, in violation of the Fourth Amendment.

Ms. Lefeber explains that the lower court initially suppressed the search, ruling that the good-faith exception to the exclusionary rule could not excuse a facially invalid warrant under U.S. v. Leon, 468 U.S. 897 (1984). The Third Circuit vacated the lower court's decision and remanded based on Herring v. U.S., 555 U.S. 135 (2009). On remand, the District Court denied the motion to suppress, concluding that the DEAs mistake was simple and did not benefit the Government. Accordingly, Defendant was convicted of conspiracy to distribute marijuana.

Defendant Wright appealed his conviction, arguing that denying his motion to suppress reduced the Governments incentive to carefully scrutinize the contents of each warrant before execution. The Third Circuit disagreed and noted that the DEA agents negligence fell below the grossly negligent exception to the good-faith rule, articulated in Herring. Similar to its recent ruling in Franzwhere an officer mistakenly read a sealing orderthe DEAs conduct was held not to be grossly negligent, since the omission of the list was inadvertent, observes Ms. Lefeber. Therefore, though the search violated the Fourth Amendment, the officers could rely on the good-faith exception to the exclusionary rule because deterring isolated negligence is not with the social cost of excluded evidence.

Ms. Lefeber believes that this case further erodes the protections of the Fourth Amendment and renders meaningless the requirement to specify the items to be seized. Officers can now "search and seek" and later legitimize the search by listing the items later.

About Hope Lefeber:

In practice since 1979, Lefeber is an experienced and aggressive criminal defense attorney in Philadelphia. As a former Enforcement Attorney for the U.S. Securities & Exchange Commission, Lefeber uses the knowledge she gained while working for the government to best defend her clients facing serious state and federal charges related to drug offenses and white collar crime, including business and corporate fraud, mail and wire fraud, money laundering, financial and securities fraud, and tax fraud. A member of the invitation-only National Trial Lawyers Top 100, Lefeber has been recognized by Thomson Reuters as a 2014 Super Lawyer. She has also been recognized by the National Association of Criminal Defense Lawyers as one of the Top Ten Criminal Defense Attorneys. She has represented high-profile clients, published numerous articles, lectured on federal criminal law issues, taught Continuing Legal Education classes to other Philadelphia criminal defense attorneys and has been quoted by various media outlets, from TV news to print publications.

Learn more at http://www.hopelefeber.com/

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Federal Criminal Defense Attorney Hope Lefeber Discusses Recent Third Circuit Expansion of Exclusionary Rule

Forced Blood Draws, DNA Collection and Biometric Scans: What Country Is This?

By John W. Whitehead

February 24, 2015

The Fourth Amendment was designed to stand between us and arbitrary governmental authority. For all practical purposes, that shield has been shattered, leaving our liberty and personal integrity subject to the whim of every cop on the beat, trooper on the highway and jail official. The framers would be appalled.Herman Schwartz,The Nation

Our freedomsespecially the Fourth Amendmentare being choked out by a prevailing view among government bureaucrats that they have the right to search, seize, strip, scan, spy on, probe, pat down, taser, and arrestanyindividual atanytime and for theslightestprovocation.

Forced cavity searches, forced colonoscopies, forced blood draws, forced breath-alcohol tests, forced DNA extractions, forced eye scans, forced inclusion in biometric databasesthese are just a few ways in which Americans are being forced to accept that we have no control over what happens to our bodies during an encounter with government officials.

Worse, on a daily basis, Americans are being made to relinquish the most intimate details of who we areour biological makeup, our genetic blueprints, and our biometrics (facial characteristics and structure, fingerprints, iris scans, etc.)in order to clear the nearly insurmountable hurdle that increasingly defines life in the United States: we are all guilty until proven innocent.

Thus far, the courts have done little to preserve our Fourth Amendment rights, let alone what shreds of bodily integrity remain to us.

For example, David Eckert was forced to undergoan anal cavity search, three enemas, and a colonoscopyafter allegedly failing to yield to a stop sign at a Wal-Mart parking lot. Cops justified the searches on the grounds that they suspected Eckert was carrying drugs because his posture [was] erect and he kept his legs together. No drugs were found. During a routine traffic stop, Leila Tarantino was subjected to two roadside strip searches in plain view of passing traffic, during which afemale officer forcibly removed a tampon from Tarantino. Nothing illegal was found. Nevertheless, such searches have been sanctioned by the courts, especially if accompanied by a search warrant (which is easily procured), as justified in the governments pursuit of drugs and weapons.

Close to 600 motorists leaving Penn State University one Friday night were stopped by police and, without their knowledge or consent, subjected to a breathalyzer test usingflashlights that can detect the presence of alcohol on a persons breath. These passive alcohol sensors are being hailed as a new weapon in the fight against DUIs. However, because they cannot be used as the basis for arrest, breathalyzer tests are still required. And for those who refuse to submit to a breathalyzer, there are forced blood draws. One such person is Michael Chorosky, who was surrounded by police, strapped to a gurney and thenhad his blood forcibly drawn after refusing to submit to a breathalyzer test. What country is this? What country is this? cried Chorosky during the forced blood draw.Thirty states presently allow police to do forced blood draws on driversas part of a nationwide No Refusal initiative funded by the federal government.

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Forced Blood Draws, DNA Collection and Biometric Scans: What Country Is This?

On Tuesday of this week, the en banc Eleventh Circuit will hear oral argument in United States v. Davis, the case I blogged about here and here on whether the Fourth Amendment protects cell-site records. The en banc briefs are here, and an exhibit from the trial showing some of the cell-site records is here. The Eleventh Circuit doesnt post oral argument audio, so well likely be stuck relying on press accounts to find out what happened.

Whichever way the Eleventh Circuit rules, Supreme Court review is a possibility. It seems likely that Fourth Amendment protection for cell-site data will be the next big Fourth-Amendment-and-technology case at the Supreme Court, following the GPS case in 2012 and the searching-cellphones-on-arrest case in 2014. But when?

Lets recall the lower court cases so far. The Fifth Circuit has held that there is no Fourth Amendment protection for historical cell-site records, and the Florida Supreme Court has held that the Forth Amendment protects cell-site records at least in real time. The Fourth Circuit held argument in mid-December on a historical cell site case, and in Davis well get a ruling from the en banc Eleventh Circuit on the same issue. There may be some other cases working their way up to state Supreme Courts or even a federal circuit that I dont know about. (The Third Circuit offered some dicta on the issue in 2010 without reaching a decision, but that doesnt count.)

In light of these cases, decided and pending, theres likely to be a colorable case for Supreme Court review no matter how the Fourth and Eleventh Circuits rule. Supreme Court review focuses heavily on splits, that is, clear and outcome-determinative disagreement among federal circuits and state supreme courts about how the law applies. If the Fourth and Eleventh Circuits hold that the Fourth Amendment applies, it creates a plausible split with the Fifth. If they hold that the Fourth Amendment doesnt apply, they create a plausible split with the Florida Supreme Court especially pressing in the case of the Eleventh Circuit, as it would be within the same jurisdiction.

Maybe, but there are two important caveats. [UPDATE: Actually, only one caveat. See below.]

First, the Florida Supreme Court repeatedly tried to limit its holding to real-time cell-site monitoring as opposed to historical access. There are possible grounds to say that at least some kinds of real-time cell-site monitoring might raise some different issues. So if the Fourth and Eleventh hold that there is no protection, you could say that there is no split because the Florida Supreme Courts decision was only about real-time monitoring. Its a possible argument, although its worth noting that the Florida Supreme Court didnt actually offer a legal basis for limiting its holding to real-time monitoring. It announced the limitation, but it didnt actually develop a clear reason why it could make a difference.

Similarly, its possible to say that a Fourth and Eleventh Circuit finding cell site protection for historical cell site data wouldnt create a real split with the Fifth Circuit given the unusual procedure of the Fifth Circuit case. [BUT SEE UPDATE BELOW] Recall that the Fifth Circuit case arose when the government applied for an order for historical cell site data and the Magistrate Judge denied the application on Fourth Amendment grounds. In response to an academic amicus brief that raised ripeness problems with ruling in that context absent any facts, the Fifth Circuit limited its analysis to whether access to historical cell site records was per se unconstitutional. By answering only the issue of per se unconstitutionality, which I take to be kind of like asking whether a statute is facially unconstitutional, the Fifth Circuit arguably only answered whether access to historical cell site records always violated the Fourth Amendment, not whether it would in a particular case. If you take that reading of the case, then perhaps there would be no split with a decision finding a Fourth Amendment violation based on a specific set of facts. This is a possible argument, but not an obvious one, as the reasoning actually adopted by the Fifth Circuit applies more broadly than that limited reading would suggest.

Putting all these pieces together, its hard to know when the Supreme Court might be interested. We might get a clear split from the Fourth and/or Eleventh Circuit cases, but the Court might decide to wait a while given the possible arguments that there is not yet a super-clear split. As always, stay tuned.

UPDATE: A reader reminds me that in a subsequent case, United States v. Guerrero, 768 F.3d 351 (5th Cir. 2014), the Fifth Circuit applied the reasoning of its initial cell-site case to an as-applied set of facts involving historical cell site records. After Guerrero, the Fifth Circuit rule is clear: Historical cell-site data is not protected. So scratch that second caveat above.

Also, another reader points out in United States v. Skinner, where the Sixth Circuit also suggested that cell-site data is not protected. Maybe, although recall that Skinner involved pinging a phone, which raises some different issues.

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Volokh Conspiracy: Supreme Court review of cell-site cases?