Category Archives: Fourth Amendment

PS4 GTA5 Team Deathmatch Fourth Amendment
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By: Jean Sage

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PS4 GTA5 Team Deathmatch Fourth Amendment - Video

The Making Of The Twenty Fourth Amendment Part 6
Think. Create. Inspire. Relax. Become.

By: LPTrax

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The Making Of The Twenty Fourth Amendment Part 6 - Video

A few weeks ago, Virginia Delegate Rich Anderson (R) and Senator Richard Stuart (R) introduced an amendment in the Virginia General Assembly, HJR 578, which would amend the Virginia constitution by replacing the state equivalent of the Fourth Amendment with an all new version designed to be an update for the 21st century. A reader asked me for my opinion of the proposal. This post provides it.

My overall assessment is that this proposal isnt ready for prime time. First, its a truly radical set of ideas. It would restrict police power to enforce the law in dramatic ways far beyond anything seen before. Second, its a grab-bag of different police restrictions, many poorly drafted and murky as to their scope. And ironically, several of the proposed changes actually arent likely to be changes at all. Theyre drafted in odd ways that probably miss their intended targets.

Heres some context to understand my reaction. The Virginia state constitution has a search and seizure provision that dates back to 1776 and was part of George Masons original Virginia Declaration of Rights. Heres the text:

That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

For most of Virginias history, this provision was the primary protection of search and seizure law that regulated Virginia law state and local law enforcement. In 1949 and 1961, however, the U.S. Supreme Court held that the federal Fourth Amendment also applies to state and local governments under the Due Process clause of the Fourteenth Amendment. As a result of those U.S. Supreme Court developments, state constitutional protections play little or no role in most states. Most state Supreme Courts interpret their state constitutions to match or mostly match the federal Fourth Amendment, and the federal Fourth Amendment already provides a floor below which state and local officials cant go.

Virginia is one of those states. The Supreme Court of Virginia has concluded that the requirements of Virginias 1776 search and seizure provision are substantially the same as those contained in the Fourth Amendment. Lowe v. Commmonwealth, 230 Va. 346 (1985) (quoting A. Howard, I Commentaries on the Constitution of Virginia 182 (1974)). States are certainly free to do more. Either by judicial construction, or by express textual amendment, states are free to enact greater protections that will regulate state and local governments more than the federal government. But its an option, not a requirement, and so far Virginias constitution hasnt gone beyond the federal Fourth Amendment.

The new proposal would change that. The proposal would replace George Masons 1776 language in its entirety with the following new language:

That the government shall not violate the right of the people to be secure against unreasonable searches and seizures of their persons, houses, businesses, lands, papers, and effects, including communications and stored personal information and data. A reasonable search or seizure is one based on probable cause that a law has been or will be broken. An unreasonable search or seizure is one that is not based on a valid law. Warrants and other demands shall be issued only based upon probable cause, signed by a neutral judge or magistrate, supported by oath or affirmation, and particularly describing the place to be searched, the persons, property, or things to be seized, or the communications, personal information, or data to be accessed or obtained. A persons disclosure of papers, effects, communications, personal information, or data to another person shall not alone constitute a waiver of this right. The people shall have remedies of exclusion and actions for damages and other remedies wherein defendants shall not enjoy greater immunity than other citizens of the Commonwealth.

What is this language supposed to do? Good question. Just reading it, its somewhat hard to tell what the drafters were thinking. In the Washington Examiner, however, Ken Cuccinelli and Mark Fitzgibbons (C&F) offer an endorsement of the proposal that gives a relatively detailed explanation of it. Its the most thorough discussion I have found, and it gives us enough context to evaluate the proposed amendment sentence-by-sentence.

Lets start at the beginning with the first sentence:

See the original post here:
Volokh Conspiracy: An update to the Virginia constitution that the General Assembly should pass over

Prior decisions of the Supreme Court addressing the constitutionality of the use of narcotics-sniffing dogs versus other law enforcement techniques have been on a theoretical collision course for years. On Wednesday, the Court will hear argument in Rodriguez v. United States and consider aspects of the issue once again: does the Fourth Amendment restrict the use of drug-sniffing dogs by the police at a roadside traffic stop, when the officer has finished issuing any citation and the stop is prolonged for a few minutes solely to conduct the dog sniff?

The nuances of simple facts

As in many Fourth Amendment cases, although the facts in Rodriguez are relatively simple they raise difficult theoretical questions which often turn on nuances about the details. One evening shortly after midnight, a car being driven by Dennys Rodriguez and carrying passenger Scott Pollman was stopped by Officer Morgan Struble. Struble had observed the car drift slowly onto the shoulder of a highway and then jerk suddenly back onto the road this was concededly probable cause to believe that Nebraska traffic statutes had been violated. Coincidentally, Officer Struble was a canine officer, and he had his drug-sniffing dog with him in his patrol car.

Upon questioning, Rodriguez told Officer Struble that he had swerved to avoid a pothole; the officer found that implausible. The officer was also suspicious of the overwhelming odor of air freshener; and he thought Pollman was unusually nervous for a passenger. When the officer asked Rodriguez to come sit in the patrol car during a records check, Rodriguez asked if he was required to do so. Upon being told that he was not, Rodriguez stayed in his own car.

When the records check came back negative, the officer went back to Rodriguezs car and spoke with Pollman, a conversation that the officer later said he also found suspicious. When the officer returned to his car, this time to run a records check on Pollman, he called for a second officer to come to the scene: Officer Straube had apparently decided to conduct a dog sniff and wanted another officer as back up for safety reasons.

Officer Struble then went back to Rodriguezs car, returned all documents to both men, and issued Rodriguez a written warning. At this point the stop of the car for traffic reasons appears to have been over. Officer Struble then asked for permission to walk his dog around the car. When Rodriguez refused, Officer Struble ordered him out of the car. This also concededly appears to be a moment of Fourth Amendment detention. They waited for the second officer, and when that officer arrived the dog sniff was conducted. The dog alerted within a few seconds. A search of the car yielded a bag of methamphetamine and the case went federal. Undisputedly, about seven or eight minutes elapsed from when Officer Struble gave Rodriguez the written warning until the dog alerted.

The federal magistrate found that the facts did not add up to reasonable suspicion once the traffic stop was over. Nevertheless, he recommended against suppression because the delay to conduct the dog sniff was a de minimis intrusion under Eighth Circuit precedent. The federal district court agreed, Rodriguez then pled guilty conditionally, and on appeal the Eighth Circuit affirmed.

Thus the question whether the Fourth Amendment permits an eight-minute detention, after a valid traffic stop has been completed, to conduct a dog sniff, seems clearly presented. More generally, the question whether (and for how long) a traffic stop may be prolonged, for reasons unrelated to the traffic violation itself, has divided lower courts. Note however, that the question in Rodriguez is premised on the assumption that the officer on the facts of this case did not have reasonable suspicion regarding narcotics. In addition to arguing that the dog-sniff detention was reasonable under the Fourth Amendment, the United States also argues that the Court could alternatively find that there was, as a matter of law, reasonable suspicion here. If the Court were to accept that view, then the detention for dog sniff without suspicion question would presumably be moot. But given the views of the trial judges, this alternative seems unlikely (although it could be open if there were a reversal for Rodriguez and remand).

The constitutional collision course

Heres a brief sketch of the constitutional debate regarding dog sniffs. The Fourth Amendment concept of a search is a constitutional trigger for inquiring into further requirements (probable cause, reasonable suspicion, possibly a search warrant, or some recognized exception). Absent a search (or seizure), officers are not restricted by the Fourth Amendment at all. Thus if a dog sniff is not a search, then there are no Fourth Amendment constraints on officers employing them (although this still leaves the question of the length of the detention here).

Read more here:
Argument preview: Dog sniffs and traffic stops once more to the Fourth Amendment well

COPWATCH: Illegal Search Officers Find Nothing
This was one of two illegal searches I witnessed that were conducted not much more than 100 yards apart from each other. There is no such thing as a fourth amendment in DeKalb, IL.

By: Ryan Scott

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COPWATCH: Illegal Search Officers Find Nothing - Video

The North Dakota Supreme Court on Thursday upheld a criminal judgment against a man who argued that the state violated his Fourth Amendment rights, as well as the state equivalent of those rights, by charging him for refusing to submit to a chemical test.

The court's decision answered a question asked shortly after North Dakota lawmakers criminalized refusal to submit as part of a broader effort to stiffen the penalties for drunken driving in 2013.

"Driving is a privilege, not a constitutional right, and issubject to reasonable controlby the state under its police power," Supreme Court Justice Lisa McEvers wrote in an opinion signed by all five justices.

The justices affirmed the argument offered by the state that one gives implied consent to be tested when one gets behind the wheel of a motor vehicle.

In doing so, the justices upheld the conviction against Danny Birchfield, who drove his vehicle into a Morton County ditch in October of 2013 in a case that would go from the South Central District Court to the North Dakota Supreme Court.

Several states criminalize the refusal to submit to a chemical test, often by making the penalty for refusal the same as that for being convicted of drunken driving.

McEvers cited several court decisions, at the state and federal levels, upholding states' rights to do so.

The North Dakota Supreme Court also ruled the 2013 United States Supreme Court decision in McNeely v. Missouri, rendered shortly before North Dakota criminalized refusal, did not invalidate the legal framework for criminal penalties.

Attorneys for Birchfield and another defendant accused of refusal to submit argued that the McNeely decision, which ruled that the forcible extraction of blood from a suspected drunken driver constituted an unreasonable search and seizure, applied to criminal penalties as well. The attorneys argued that by punishing a person for refusing to be tested, the state effectively removed that person's right to refuse being tested.

McEvers wrote that "since the (United States) Supreme Court's ruling in McNeely, criminal refusal statutes have continued to withstand Fourth Amendment challenges, particularly in Minnesota."

See original here:
Penalties for DUI testing refusal upheld

Fourth Amendment video P.1

By: Sabrina Ruiz

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Fourth Amendment video P.1 - Video

[PS4] GTA V - Team Deathmatch on Fourth Amendment.
Best sniper in history @ 2:11 carbine rifle op.

By: Gamesk0

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[PS4] GTA V - Team Deathmatch on Fourth Amendment. - Video

Law enforcement's warrantless use of surveillance technology ignores and mocks Fourth Amendment protections against unreasonable search and seizure. The latest insult to Americans' rights is the FBI's insistence that it can indiscriminately gather the identities and locations and intercept the calls and texts of those using cellphones in public places.

As we've noted before, the FBI does so via stingray devices that mimic cell towers. Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and fellow member Patrick Leahy, D-Vt., are questioning an FBI policy exception that allows warrantless stingray use in public places.

So long as they're not shouting, cellphone users do have a reasonable expectation of privacy in public places. Warrantless cellphone monitoring there is just as unreasonable as seizing a letter written in a coffeehouse would be.

It's the same principle behind the Supreme Court ruling requiring warrants for GPS tracking of suspects' vehicles and behind nine states' laws, plus rulings by Massachusetts' and Florida's highest courts, requiring warrants for real-time cellphone tracking.

The FBI's warrantless stingray use necessitates more such judicial and legislative actions that guard against law-enforcement overreach by reinforcing the Fourth Amendment's essential requirement of getting a warrant.

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Original post:
The stingray assault: Get a warrant

In a recent case, United States v. Shah, 2015 WL 72118 (E.D.N.C. Jan. 6, 2015), a district court ruled that a search warrant for an e-mail account for all evidence of violations of the federal computer hacking statute failed to comply with the Fourth Amendment because it did not particularly describe the evidence to be seized.

The warrant in the case approved the seizure from a specific gmail account of e-mails that contained the following:

All information . . . that constitutes fruits, evidence, and instrumentalities of Title 18, United States Code, Sections 1030 (Fraud and Related Activity in Connection with Computers), since account inception, including, for each account or identifier listed on Attachment A, information pertaining to the following matters: a. Preparatory steps taken in furtherance of unauthorized network activity, communications regarding execution of the unauthorized network activity, and information regarding tools used in furtherance of the unauthorized network activity. b. Records relating to who created, used, or communicated with the account or identifier, including records about their identities and whereabouts.

This description is a slightly modified version of the DOJ recommended e-mail warrant description, albeit without a date restriction; see here at 261-62. According to the district court, however, the warrant was not specific enough. From the opinion:

The provision [of the warrant] describing the documents seized makes a general reference to [a]ll information described above in Section I that constitutes fruits, evidence, and instrumentalities of Title 18, United States Code, Sections 1030 (Fraud and Related Activity in Connection with Computers). (Google Warrant, 6). This statute, also known as the federal Computer Fraud and Abuse Act (CFAA), prohibits a wide array of activities, including the use of computers to transmit information restricted by the United States without authorization, intentionally accessing a computer without authorization or exceeding authorized access to obtain financial records, accessing nonpublic computers of the United States in a way which affects the governments use, accessing protected computers without authorization in order to commit fraud, threatening to cause damage or obtain information from a protected computer, conspiracy to commit these offenses, and other activities. See 18 U.S.C. 1030(a).

A violation of the CFAA would not necessarily generate such distinctive evidence as bank robbery or narcotics. Dickerson, 166 F.3d at 694. Nor would evidence necessarily be as distinctive as that of child pornography, a type of crime more commonly targeted by warrants for electronic information. E.g. United States v. Schesso, 730 F.3d 1040, 1044 (9th Cir.2013); United States v. Deppish, 994 F.Supp.2d 1211, 1214 (D. Kansas 2014). Rather, a warrant authorizing collection of evidence of a CFAA violation comes closer to warrants seeking to collect evidence regarding violations of broad federal statutes prohibiting fraud or conspiracy. In these cases, limitation by reference to the broad statute fails to impose any real limitation. See United States v. Maxwell, 920 F.2d 1028, 1033 (D.C.Cir.1990) (Although a warrants reference to a particular statute may in certain circumstances limit the scope of the warrant sufficiently to satisfy the particularity requirement it will not do so where, as here, the warrant authorizes seizure of all records and where, as here, the reference is to a broad federal statute, such as the federal wire fraud statute.); Rickert v. Sweeney, 813 F.2d 907, 909 (8th Cir.1987) (general search limited only by broad tax evasion statute held overly broad, where probable cause existed only to search for evidence of tax evasion in connection with one particular project); United States v. Roche, 614 F.2d 6, 78 (1st Cir.1980) (warrants limitation of search to fruits and instrumentalities of the violation of federal mail fraud statute was inadequate because limitation by so broad a statute is no limitation at all.).

The Google Warrant provides no other details to clarify the particular crime at issue. Section II(a) makes reference to unauthorized network activity, yet gives no indication as to the meaning of this phrase, which would seem to be implicated in almost all of the activities prohibited by the CFAA. The warrant offers nothing about the time frame of the offense. See United States v. Hanna, 661 F.3d 271, 287 (6th Cir.2011) (noting, in upholding search warrant for electronic information, that the warrant was limited to the time period that the evidence suggested the activity occurred.) Rather, it provides for the seizure of all evidence of violations of the CFAA since account inception. (Google Warrant, 6).

Although the test for particularity is a pragmatic one, and must consider the circumstances and type of items involved, Torch, 609 F.2d at 1090, the record does not indicate that circumstances of the investigation precluded a more particularized description of the crime. Special Agent Ahearns supporting affidavit provides copious details as to the time and nature of the alleged offenses. Had the Google Warrant properly attached or incorporated this affidavit, it could have provided the necessary context for the search. Hurwitz, 459 F.3d at 471 ([A]n affidavit may provide the necessary particularity for a warrant if it is either incorporated into or attached to the warrant.) (quoting United States v. Washington, 852 F.2d 803, 805 (4th Cir.1988)). Yet the Google Warrant makes no incorporation, and it does not appear from the record that the affidavit was attached. Without the Google Warrant somehow including the additional details provided by Special Agent Ahearns affidavit, the affidavit itself cannot satisfy concerns for particularity or overbreadth. See Groh v. Ramirez, 540 U.S. 551, 557 (2004) (The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents.).

[T]here are grave dangers inherent in executing a warrant authorizing a search and seizure of a persons papers that are not necessarily present in executing a warrant or search for physical objects whose relevance is more easily ascertainable. Williams, 592 F.3d at 52324 (quoting Andresen v. Maryland, 427 U.S. 463, 482 n. 11). Because electronic devices could contain vast quantities of intermingled information, raising the risks inherent in over-seizing data law enforcement and judicial officers must be especially cognizant of privacy risks when drafting and executing search warrants for electronic evidence. Schesso, 730 F.3d at 1042; see also In the Matter of the Search of Info. Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc., 13 F.Supp.3d 157, 16667 (D.D.C.2014) ( D.D.C. Mac.com Order ). Especially in light of the nature of the search and seizure here, the Google Warrant is not drafted with sufficient particularity. In the absence of additional details, the warrant fails to identify the particular crime for which officers were to seek evidence. Therefore, the warrant lacks the particularity required by the Fourth Amendment.

The court goes on to apply the good-faith exception, however, because the courts holding is somewhat novel under the circumstances. Heres the discussion, with a paragraph break added:

Originally posted here:
Volokh Conspiracy: E-mail warrant for all evidence of CFAA crimes violates Fourth Amendment, court holds