Category Archives: Fourth Amendment

CLAYTON COUNTY, Ga.

Allegations of unlawful public strip searches and bogus arrests by officers from the Forest Park Police Department are now detailed in a lawsuit against the department and the city.

The lawsuit alleges the department's specialized VIPER unit violated the Fourth Amendment rights of several people without probable cause to search or warrants to arrest.

"'Stand right here. Unbuckle your pants.' I was like, 'Unbuckle my pants for what?' plaintiff Terry Philips told Channel 2s Kerry Kavanaugh.

"Told me I had to pull my pants down, bend over, squat and cough for him, said plaintiff Jeffrey Meehan.

The men say traffic stops in 2013 ended with Forest Park police officers strip-searching them in public."When he came back, I'd seen tears," said Tamara Parker.

Parker says she and Terry Philips had just left a grocery store when an officer pulled them over for an expired tag. They said they had the paperwork proving otherwise, but the officer wouldnt listen.Jeffery Meehan says he was in the back seat of a friend's car when the driver was stopped for not using a blinker. He says they were pulling out of a parking lot and making a right-hand turn when they were stopped.

Meehan says he was searched three times.

"I asked him why, was I being (put) under arrest. He said 'No you're not', but he said, 'You're going to go to jail if you don't do what I'm telling you,'" Meehan told Kavanaugh.

Another couple says they were home asleep when Forest Park officers broke down their front door.

Go here to see the original:
Officers under fire for alleged unlawful strip searches, arrests

OAKLAND, Calif.A federal judge spent over four hours on Friday questioning lawyers from the Electronic Frontier Foundation (EFF) and from the Department of Justice in an ongoing digital surveillance-related lawsuit that has dragged on for more than six years.

During the hearing, US District Judge Jeffrey White heard arguments from both sides in his attempt to wrestle with the plaintiffs July 2014 motion for partial summary judgment. He went back and forth between the two sides, hearing answers to his list of 12 questions that were published earlier this week in a court filing.

That July 2014 motion asks the court to find that the government is "violating the Fourth Amendment by their ongoing seizures and searches of plaintiffs Internet communications." The motion specifically doesnt deal with allegations of past government wrongdoing, nor other issues in the broader case.

The case, known as Jewel v. National Security Agency (NSA), was originally brought by the EFF on behalf of Carolyn Jewel, a romance novelist who lives in Petaluma, California, north of San Francisco. For years, the case stalled in the court system, but it gained new life after the Edward Snowden disclosures last summer.

In the 2008 original complaint (PDF), Jewel and the other plaintiffs alleged that the government and AT&T were engaged in an "illegal and unconstitutional program of dragnet communications surveillance conducted by the National Security Agency and other Defendants in concert with major telecommunications companies." The evidence stemmed from materials leaked by former San Francisco AT&T technician Mark Klein in 2006. As Jewel was and remains an AT&T customer, her communications were intercepted by the company on behalf of the NSA, her attorneys argue.

Much of the language invoked by both sides revolves around what the EFF has called a four-stage process as illustrated in the July 2014 motion (as shown above).

Richard Wiebe, one of the plaintiffs lawyers, countered: "The government can't circumvent the Fourth Amendment simply by automating its searches and seizures."

"If suddenly our homes were being searched by drones, that wouldn't be permissible under the Fourth Amendment?" he added later.

"What really matters is not what the government gains but what the plaintiffs lose: they lose privacy and control of their communications. That's really what we're talking about. The Fourth Amendment protects us all against mass surveillance of our papers."

Eventually, Wiebe concluded:

Read the original here:
EFF: Feds cant get around Fourth Amendment via automated data capture

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

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Fourth Amendment cases, citations, and links

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

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

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Fourth Amendment

Regular readers will recall the mosaic theory of the Fourth Amendment introduced by the DC Circuit in United States v. Maynard, by which law enforcement steps that arent searches in isolation can become searches when aggregated over time. For the most part, judges have been pretty skeptical of the mosaic theory. For example, in the recent oral argument in the Fourth Circuit in United States v. Graham, on whether the Fourth Amendment protects historical cell-site data, the mosaic arguments didnt gain a lot of traction for the defense.

In this post, however, I want to focus on two recent federal district court decisions that cut against this trend and adopted the mosaic theory. The first case is United States v. White (E.D.Mich. Nov. 24, 2014) (Lawson, J.), which held that the Fourth Amendment was violated when the government obtained a warrant to track a drug dealers cell phone continuously over 30 days. The second case is United States v. Vargas (W.D.Wash. Dec. 15, 2014) (Shea, J.), which suppressed video evidence from a camera set up on a public utility pole 100 yards away from the targets rural house that showed what was happening on the targets front lawn continuously for six weeks.

1. United States v. White

In United States v. White, agents were conducting a wide-scale investigation into a known narcotics trafficker, Jimmie White. Agents obtained two search warrants to track Whites cell phone in real time for 30 days each, with the goal of understanding the scope of Whites activities and to show his involvement in narcotics crimes. When charges were brought, White moved to suppress the location information obtained from the cell phone location warrants. The case was heard before Judge David Lawson (who, allow me to add, I have had the pleasure of working with on the Criminal Rules Committee). Judge Lawson recognized that the Sixth Circuit had held in United States v. Skinner that monitoring a suspects cell phone location in real-time was not a Fourth Amendment search. But Judge Lawson held that the facts of Whites case were distinguishable:

[T]he surveillance in this case took place over an extended time period continuously for 30 days on two (or three) separate occasions and followed White into both public and private spaces. Justice Alitos concurring opinion in Jones, which drew support from a fifth justice, see Jones, 132 S. Ct. at 954-57 (Sotomayor, J., concurring), suggested that the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. Id. at 964 (Alito, J., concurring). The 4-week tracking in that case was well over the line of reasonableness, in his view. Ibid. (We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark.). And the Skinner majority acknowledged Justice Alitos concerns, allowing that [t]here may be situations where police, using otherwise legal methods, so comprehensively track a persons activities that the very comprehensiveness of the tracking is unreasonable for Fourth Amendment purposes. Skinner, 690 F.3d at 780. Skinner does not control the present case, because the length and breadth of the tracking here extends well beyond what any reasonable person might anticipate.

Judge Lawson then offered three reasons why 30 days of monitoring Whites cell phone location violated his reasonable expectation of privacy. First, it included Whites location when he was at home. Second, Congress has enacted statutory privacy protections for cell-site location. And third, 30 days of monitoring allows the government to obtain a detailed picture of a persons life. As a result, it is safe to say that society would recognize that an interest in keeping these movements private is reasonable.

Judge Lawson recognized that his approach raised a difficult question of line-drawing: How long is long enough for monitoring to constitute a search? He answers:

[C]ourts have confronted similar problems in the past. For instance, how long may law enforcement detain property waiting for a drug detection dog to arrive for a sniff before the intrusion matures into a seizure? To find an answer, courts must balance the nature and quality of the intrusion on the individuals Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. United States v. Place, 462 U.S. 696, 703 (1983).

Under that rationale, it may be appropriate to track an individual for a short time on public streets based on a level of suspicion that is less than probable cause. See Terry v. Ohio, 392 U.S. 1, 22 (1968) . . . Longer surveillances may require more justification, and a case might be made that the governments reasons underlying the need for tracking in the case of domestic terrorism, for example may call for less. The present case involves a garden-variety drug trafficking crime, nothing more. The blanket surveillance of an individual for thirty days at a time cannot equate to a brief detention, however. The nature and quality of an intrusion of that magnitude (in excess of the the 4-week mark) tips the balance in favor of the individual; it constitutes a breach of ones reasonable expectation of privacy that requires the state to demonstrate probable cause as a justification for the intrusion. Jones, 132 S. Ct. at 964 (Alito, J., concurring).

This passage is interesting because it relies on caselaw concerning reasonableness, not what is a search. If I understand Judge Lawson correctly, he would say that even short-term monitoring on public streets is a search, but one that may be allowed based on only the Terry standard, at least depending on the crime under investigation. Here Judge Lawson goes significantly beyond Justice Alitos Jones concurrence, which had adhered to Knotts and indicated that short-term location monitoring is not a search at all.

Read more:
Volokh Conspiracy: Two district courts adopt the mosaic theory of the Fourth Amendment

Virginia Sherwood/NBC

Chris Hansen

On Wednesday, the 10thU.S. Circuit Court of Appeals ruled that a judge had too quickly dismissed an insurance broker's defamation lawsuit against NBCUniversal, reporter Chris Hansen and others over a 2008 Dateline segment titled "Tricks of the Trade."

"This case is anything but normal," writes Circuit Judge Terrence O'Brien.

PHOTOS Hollywood's Most Fascinating Legal Sagas, From Casey Kasem to Michael Jackson

Among other things, the case addressed whether a journalists privilege, commonly understood to protect the identity of anonymous sources, extends further in Colorado. It also raises the issue of whether journalists, acting with government cooperation, can enter a private place under false pretenses without violating an individual's or company's Fourth Amendment right against unreasonable searches and seizures.

The lawsuit and appeal were brought by Tyrone Clark and his company, Brokers Choice of America (BCA), upset with the way Dateline had used snippets of Clark's two-day seminar for insurance brokers located on the company's property in Colorado. With assistance from Alabama officials, Dateline's crew surreptitiously filmed the seminar, and according to Clark's company, used its own tricks of the trade selective editing and commentary to present Clarks statements out of context.

The Dateline segment presented Clark as using or teaching scare tactics to get seniors to buy annuities, but BCA says that a complete viewing of Clark's seminar would show him taking a more nuanced approach to annuities that Clark said they were not for everyone and urged his students to probe their customers' situations for suitability and obey a code of conduct that included disclosures.

PHOTOS THR's 2014 Power Lawyers List: Portraits

NBC's primary defense against the lawsuit was that its presentation of statements in the Dateline program were "substantially true," and on a motion to dismiss, a trial judge bought that argument.

Read the rest here:
NBC Must Contend With 'Dateline' Defamation Lawsuit After Appellate Ruling

Virginia Sherwood/NBC

Chris Hansen

On Wednesday, the 10thU.S. Circuit Court of Appeals ruled that a judge had too quickly dismissed an insurance broker's defamation lawsuit against NBCUniversal, reporter Chris Hansen and others over a 2008 Dateline segment titled "Tricks of the Trade."

"This case is anything but normal," writes Circuit Judge Terrence O'Brien.

PHOTOS Hollywood's Most Fascinating Legal Sagas, From Casey Kasem to Michael Jackson

Among other things, the case addressed whether a journalists privilege, commonly understood to protect the identity of anonymous sources, extends further in Colorado. It also raises the issue of whether journalists, acting with government cooperation, can enter a private place under false pretenses without violating an individual's or company's Fourth Amendment right against unreasonable searches and seizures.

The lawsuit and appeal were brought by Tyrone Clark and his company, Brokers Choice of America (BCA), upset with the way Dateline had used snippets of Clark's two-day seminar for insurance brokers located on the company's property in Colorado. With assistance from Alabama officials, Dateline's crew surreptitiously filmed the seminar, and according to Clark's company, used its own tricks of the trade selective editing and commentary to present Clarks statements out of context.

The Dateline segment presented Clark as using or teaching scare tactics to get seniors to buy annuities, but BCA says that a complete viewing of Clark's seminar would show him taking a more nuanced approach to annuities that Clark said they were not for everyone and urged his students to probe their customers' situations for suitability and obey a code of conduct that included disclosures.

PHOTOS THR's 2014 Power Lawyers List: Portraits

NBC's primary defense against the lawsuit was that its presentation of statements in the Dateline program were "substantially true," and on a motion to dismiss, a trial judge bought that argument.

See the original post:
NBC 'Dateline' Defamation Lawsuit Revived by Appeals Court

The Supreme Court has handed down Heien v. North Carolina, the Fourth Amendment case I have blogged about a few times on whether the Fourth Amendment is violated when an officer pulls over a car based on a reasonable but mistaken belief that the traffic laws prohibit the drivers conduct. The Court ruled 8-1, per Chief Justice Roberts, that the Fourth Amendment is not violated in such circumstances. Only Justice Sotomayor dissented. The basic reasoning of the case is simple, but it leaves some complications that have some interesting implications for lower courts and for the relationship between Fourth Amendment rights and remedies.

Heres the core of the Chief Justices opinion:

As the text indicates and we have repeatedly affirmed, the ultimate touchstone of the Fourth Amendment is reasonableness. Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 5) (some internal quotation marks omitted). To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the communitys protection. Brinegar v. United States, 338 U. S. 160, 176 (1949). . . .

Reasonable suspicion arises from the combination of an officers understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

The Courts holding raises two major questions. First, how much law does a reasonable police officer know? And second, if a reasonable mistake of law means there was no Fourth Amendment violation, how do we reconcile that with the remedies cases saying that a reasonable mistake of law is a reason why there is no Fourth Amendment remedy? Ill consider each in turn.

(1) How much law does a reasonable police officer know?

If the Fourth Amendment incorporates reasonable mistakes of law, then there must be a standard for how much law a reasonable officer knows. For example, does a reasonable officer just follow the text of the law like a lawyer would? Does he know the major cases interpreting the law? Or does he just know what is taught at the police academy, or maybe what the public thinks the law probably is?

The majority opinion says that the standard is whether it is objectively reasonable for an officer in [the searching officer's] position to think that the conduct violated the law. The opinion explains:

[T]he inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.

Thats a start, although its still pretty vague. Sloppiness is a relative term. A sloppy study of the law for a lawyer might be a very careful study of the law for a non-lawyer. Whats the reference point to determine sloppiness? The Courts application of the standard at the end of the opinion mostly focuses on the text of the law, and also notes the absence of cases construing the text. So maybe the reasonable officer knows the text and is aware of at least major cases interpreting it? Its hard to say.

Go here to read the rest:
Volokh Conspiracy: Reasonable mistake of law can generate reasonable suspicion, Supreme Court holds

Vallejo Police Department Illegal Search. Fourth Amendment Violation.
Illegal Search in Vallejo Ca. Police pulled over a driver for "having his rear window open." They removed both the driver and passenger from the vehicle, cuffed them, searched their persons,...

By: SanFranBlitz

Continue reading here:
Vallejo Police Department Illegal Search. Fourth Amendment Violation. - Video

The exercise of police discretion to stop people on the street is front and center in todays headlines. In this case, a North Carolina policeman stopped Heiens car because it had a brake light that did not work. During the stop, Heien consented to a search of the car, which yielded cocaine in a duffle bag and Heiens ultimate conviction for attempted drug trafficking. On appeal, the North Carolina appellate courts surprisingly ruled that the outdated state vehicle code required only one working brake light (a stop lamp, in the words of the statute); therefore, there had been no violation of law that would permit the stop. The officer made no error about the facts; but he had been mistaken about the meaning of the law. However, the North Carolina Supreme Court ruled, the officers mistake about this law was reasonable, and for that reason the Fourth Amendment right to be secure from unreasonable seizures was not violated. This mornings opinion in Heien v. North Carolina affirms that holding.

Chief Justice Roberts announcing the opinion. (Art Lien)

The constitutional law of reasonableness The vague word unreasonable in the Fourth Amendment is a lawyers playground, and questions about what sort of circumstances constitutionally permit law enforcement seizures have thus plagued the federal courts since the Fourth Amendment was adopted. In 1813, Chief Justice John Marshall wrote that the constitutional standard is circumstances which warrant suspicion a relatively unspecific and therefore unhelpful standard. But its unhelpfulness flows from the generality of the amendment itself. It is not judge-made policy; it is constitutional text.

Over the years the Court has honed its thinking about what constitutes probable cause to stop or search (for example, Illinois v. Gates in 1983), and in Terry v. Ohio in 1968 the Court famously ruled that even brief stops on the street require at least specific and articulable reasonable suspicion, not just hunches. The Court has subsequently made clear that even when police are mistaken about facts, their stops do not violate the Constitution if their mistakes are reasonable.

Todays opinion

Today, in an opinion by Chief Justice John Roberts, a majority of eight Justices affirmed that there is no reason why this same result should not apply when reached by way of a similarly reasonable mistake of law. The Court conceded and Justice Sonia Sotomayor, the lone dissenter, agreed that no precedent of the Court has expressly answered this reasonable mistake of law question (scarcely a peep). The Court noted, however, that as early as 1809, the Supreme Court ruled that a reasonable mistake of law about probable cause permitted a customs seizure under a federal statute. By 1860, this general principle had been adopted in numerous [lower court] cases. While acknowledging that the statutory customs cases were not directly on point for the constitutional question, the Court also explained that no decision of this Court in the two centuries since has undermined that understanding that reasonable mistakes of law can excuse governmental action. In fact, the Court explained that in more recent cases, such as Michigan v. DeFillippo, it had found no Fourth Amendment violation even when governmental searches were based on state statutes later declared unconstitutional. (Justice Sotomayor strongly disagreed with this reading.)

Arguing for Heien, attorney Jeffrey Fisher had struggle[d] to limit the Courts ruling solely [to] the exclusionary rule that is, the remedy in lieu of a more general ruling about the right (that is, whether the officers stop was an unreasonable violation of the amendment). This was likely an attempt to preserve some relief for Heien on remand, because North Carolina purportedly has not adopted a good faith exception to the exclusionary rule. But there will be no remand for further proceedings under todays ruling, which flatly affirmed the state courts ruling. The Court said that DeFillippo was plainly a decision about the meaning of probable cause, and thus its holding regarding a reasonable mistake of law cannot be transform[ed] into an exclusionary rule decision. So in this case, because the officers mistake about the meaning of North Carolinas vehicle code was reasonable, there was no violation of the Fourth Amendment in the first place.

(By contrast, the Court also noted that an individual officers mistaken view, no matter how reasonable, that he has complied with the Fourth Amendment, does not undermine a reviewing courts ultimate conclusion that governmental actions have violated the Fourth Amendment even though it might affect the remedy. This significant reservation regarding the scope of the Courts ruling is emphasized in footnote 1 of Justice Elena Kagans concurring opinion, and should not be overlooked.)

The majoritys limitations, and two separate opinions

Importantly, particularly in light of recent controversies, the Court observed that the standard of reasonableness for mistakes of law is not as forgiving as some might have it. An officers legal error must be objectively reasonable, and not based on a particular officers subjective understanding or on a sloppy study of the laws he is duty-bound to enforce. Thus, the Court suggested, an officer must learn[] the law, and I would expect that the familiar standard of a reasonably well-trained officer will be rigorously applied by lower courts when confronted with Heien errors in the future.

Go here to see the original:
Opinion analysis: Reasonable mistakes of law by police do not violate the Fourth Amendment

The Supreme Court ruled Monday that a police officer's mistaken idea of the law doesn't make an arrest and a search invalid, as long as the officer's understanding of the law was reasonable. The case evolved from a traffic stop in 2009, in which Nicholas Heien was pulled over on Interstate 77 in North Carolina by a county sheriff's deputy because one of his brake lights was out. After getting permission to search the car, the deputy found a baggie of cocaine, and Heien was charged with drug trafficking.

But it turned out North Carolina law did not require cars to have two brake lights. The state law said they must have "a" stop lamp on the rear and elsewhere referred to "the" stop lamp, meaning the deputy was apparently wrong about the law. Heien's lawyer backed by civil liberties groups said if a law wasn't being broken, there was no authority to arrest him or conduct a search. But by a 8-1 vote, the Supreme Court said the arrest and the search were valid, even if the officer was wrong about the law. The Fourth Amendment bars "unreasonable" searches and seizures, the court said. "To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials," said the opinion, written by Chief Justice John Roberts.

The lone dissenter, Justice Sonia Sotomayor, said an officer's mistake about the law, no matter how reasonable, "cannot support the individualized suspicion necessary" to justify an arrest. The nation's courts were sharply divided on this issue, though most said if an officer is wrong, the arrest doesn't count.

Supreme Court opinion: Heien vs. North Carolina

Pete Williams

First published December 15 2014, 8:18 AM

See original here:
Police Mistakes Can Lead to Good Arrests, Court Says